LIBRARY UNlV R-iTY OF CAL.FORNIA SAN DIEGO THE NEW CONSTITUTIONS OF EUROPE THE NEW CONSTITUTIONS OF EUROPE BY HOWARD LEE McBAIN Eaton Professor of Municipal Science and Administration in Columbia University AND LINDSAY ROGERS Associate Professor of Government in Columbia University GARDEN CITY NEW YORK DOUBLEDAY, PAGE & COMPANY 1922 COPYBIGHT, 1922, BY DOUBLEDAT, PAGE & COMPANY AT.T. RIGHTS RESERVED, INCLUDING THAT OF TRANSLATION INTO FOREIGN LANGUAGES, INCLUDING THE SCANDINAVIAN MINTED IN THE UNITED STATES AT THE COUNTRY LIFE PRESS, GARDEN CITY, N. X. First Edition PREFACE CONSTITUTIONS are at best only the skeletons of bodies politic. But like most skeletons they are of fundamental importance. They determine the height, the solidity, and something concerning the shape, general contour, and functional possibilities of the bodies they support. It re- quires the superb imagination of a Mr. Wells to be fairly certain that, when 200,000 or 250,000 years ago the Heidel- berg man was in operative possession of his now famous jaw-bone, "the sabre-toothed tiger was declining and the lion was spreading over Europe;" or to construct a con- vincing story of the "civilization" of the Neanderthal men from the skeleton of a youth who "apparently" was "deliberately interred" in a "sleeping posture" with his head "on a number of flint fragments." But it requires no osteologist to tell us that living bones are of importance, not only in respect to their articulation one to another but also in respect to the motive forces that govern their activities. An exhibit of skeletons is not devoid of in- terest and of instructional potentialities; the veriest lay- man can distinguish the frame of a quadruped from that of a biped, or the skull of an ichthyosaurus from that of a man. It has seemed to us desirable and useful, therefore, to bring the constitutional skeletons of the new govern- ments of Europe together in a single volume where they could be conveniently analyzed and compared. Not all of these constitutions have been heretofore translated into English, and many of them have been difficult of access in any version. They are indispensable first materials for any comparative study of the remodeled political in- stitutions of Europe. vi PREFACE A word or two is necessary in explanation of our plan of inclusion and exclusion. In addition to the constitution of the German Reich, we have included the constitution of the important state of Prussia and a brief description of the constitutions of several of the other German states. In Russia, in spite of a written constitution, apparently no distinction is made between fundamental and ordinary law. The constitution here incorporated has been modi- fied by laws that have not been specifically enacted as constitutional amendments. In essence, however, it probably portrays the general scheme of organization that is in operation. Of the new or succession states, we have included the constitutions of Finland, Esthonia, Poland, Danzig, Czechoslovakia, Jugoslavia, and Austria, which is a new state in all but name. No new constitution has been adopted in the new state of Hungary. Latvia is still governed by a constituent assembly elected in April, 1920; it is anticipated that a permanent constitution will be promulgated during the summer of 1922. Lithuania is still operating under a provisional constitution adopted April 4, 1919. D'Annunzio's constitution for Fiume was proclaimed in August, 1920; but since the Treaty of Rapallo (November, 1920), by which the Free State of Fiume was legally recognized, a constituent assembly has been called; and although this body has been far from harmonious, it seems probable that D'Annunzio's unique document, which has not been here included, will shortly be replaced by a more adequate instrument. Absorbed in armed conflict with the Italians and the Serbs until the summer of 1920, Albania, likewise, has not yet perfected a permanent form of government. Of the old countries that have not succumbed to revolu- tions, Belgium is the only one in which the constitution has been subjected to important revision since the war. For this reason and because it served as a model for the drafting committees in the new states it has been in- PREFACE vii eluded in the Appendix, with the new provisions translated into English for what is, we believe, the first time. Al- though France and Italy have enacted important new electoral laws, no changes have been made in their "con- stitutional laws." Even so, it has seemed to us that the usefulness of this volume for purposes of comparison would be increased by incorporating the French and Ital- ian constitutions in the Appendix. Certain other docu- ments of interest are also printed in the Appendix. The voluminous footnotes throughout the introductions make unnecessary any separate bibliographical apparatus. Of the constitutions embraced within this volume those of Prussia, Austria, and Finland have not, so far as we know, been previously translated into English. In the official or semi-official English texts of certain other con- stitutions we have ventured to make a few corrections that seemed to us imperative. The constitutions of the Central Powers presented some special difficulties. What- ever may be thought of the democratic features of the German constitution, linguistically it leaves something to be desired, and, to speak mildly, it is rather inclusive. On the other hand, the Prussian document, although ob- viously modeled on the constitution of the Reich, substi- tutes simplicity for complexity and is in consequence a well-drafted instrument of government. It is the Austrian constitution, however, that has no competitor for the post of primacy in the matter of anfractuous verbiage. For assistance in translating the German, Prussian, and Austrian documents we are deeply indebted to Mr. Ell- wood Wadsworth Kemp, Jr., and Mr. Riidiger Bilden. In the introductory chapters of this volume we have discussed certain principles of politics and public law that seem to us to be pertinent to a study of the new funda- mental laws of democratic states. In many instances we have discussed these principles with special reference to English practices and problems; for England, without a viii PREFACE written constitution, is after all the mother country of parliamentary government. We have also in some in- stances discussed matters that supplement the new consti- tutions in important particulars. We have made no attempt, however, to digest the constitutions themselves, and with few exceptions we have made no detailed com- parison of the institutions which they set up. In other words, the texts of the constitutions are not merely a referential appendix: they are an integral part of this book. From them the interested student may make his own com- parative study and draw his own inferences and conclu- sions. We have sought to supply the materials for study rather than a fabricated product. H. L. McB. L. R. CONTENTS PAGE PREFACE -. . ' * v PART I. INTRODUCTION CHAPTER I. PRINCES AND PARLIAMENTS ...... 1 II. LEGISLATURES AND BUREAUCRATS .... 26 III. SECONDARY CHAMBERS 38 IV. SEGMENTATION AND FEDERATION 55 V. PROPORTIONAL REPRESENTATION . . . . . 83 VI. FUNCTIONAL REPRESENTATION 117 VII. DEMOCRATS AND DIPLOMATS 136 VIII. INDIVIDUALISM AND SOCIALISM 154 PART II. THE NEW CONSTITUTIONS OF EUROPE IX. GERMANY 1. Historical Note 167 2. Constitution of the German Reich . . . 176 X. PRUSSIA 1. Historical Note 213 2. Constitution of the Free State of Prussia . 217 XI. BAVARIA, WURTTEMBERG, AND BADEN . . . 233 XII. AUSTRIA 1. Historical Note . . . . . ... . 241 2. Constitution of Austria . . . . . . 256 XIII. CZECHOSLOVAKIA 1. Historical Note 307 2. The Constitutional Charter of the Czecho- slovak Republic 310 CONTENTS CHAPTER PAGE XIV. JUGOSLAVIA 1. Historical Note . 343 2. Constitution of the Kingdom of the Serbs, Croats, and Slovenes (Jugoslavia) . . 348 XV. RUSSIA 1. Historical Note ........ 379 2. The Russian Constitution 385 XVI. POLAND 1. Historical Note 401 2. Constitution of the Republic of Poland . 405 XVII. THE FREE CITY OF DANZIG 1. Historical Note 426 2. Constitution of the Free and Hanseatic City of Danzig 429 3. Resolution Adopted by the Council of the League of Nations, November 17, 1920 . 448 XVIII. ESTHONIA 1. Historical Note 452 2. The Constitution of the Esthonian Republic 454 XIX. FINLAND 1. Historical Note 465 2. The Constitution of Finland .... 468 APPENDICES I. BELGIUM 1. Historical Note 499 2. Constitution of Belgium, February 7, 1831, with Amendments of 1893 and 1921 . . 501 II. FRANCE 1. Historical Note 521 2. Fundamental Laws of France .... 523 III. ITALY 1. Historical Note . . 550 2. Fundamental Statute of March 4, 1848 . 551 3. Law of Guarantees of May 13, 1871 . . 561 IV. THE RECOGNITION OF NEW STATES SINCE 1913 1. Note on Recognition of Certain States . . 565 2. List of Recognition of New States . . . 570 V. REPORT OF THE SECOND CHAMBER CONFERENCE 573 INDEX , 603 PART I INTRODUCTION THE NEW CONSTITUTIONS OF EUROPE CHAPTER I PRINCES AND PARLIAMENTS To THE student of politics the World War was of striking interest entirely apart from its international aspects and the question of victory or defeat. The democracies at war considered themselves justified in temporarily adopting the autocratic principles and methods of their adversaries in order more efficiently to pursue the struggle. Enor- mous powers were delegated to cabinets and presidents who became practical dictators. Legislative control was in abeyance; the principal functions vouchsafed to parlia- ments were to open the purse and to grant the necessary freedom of action to the executive. Individual liberty comprehended little more than the liberty to do as the government required. Measures of socialization and nationalization were resorted to on a staggering scale industry, food, fuel, clothing, transport, communications all were under the control of the state; and if life was conscripted more freely than property, the difference was one of degree rather than of principle. Statesmen recognized the inconsistency of requiring men to fight and women to make munitions when they could not enter the polling booth, and so, almost as a mat- ter of course, there were vast extensions of the electorate. Woman's suffrage and proportional representation two long, hard-fought causes were no longer debated but were given legislative approval; and problems of democracy 1 NEW CONSTITUTIONS OF EUROPE Effects even in neutral countries Nationality and political organization Increase in number of states such as the control of foreign relations and the regulation of vast bureaucracies thrust themselves forward for new and more serious consideration. The political dislocation was felt in neutral as well as belligerent countries. As early as the autumn of 1914, for example, the Swiss Federal Council was given an ordinance-making authority more in keeping with the decree of the Roman Senate authorizing the consuls "to see that the Republic took no harm " than with the decen- tralized traditions of Swiss constitutional law. These mod- ifications of political theory and governmental arrange- ments and the new emphasis on certain mechanisms were due primarily to the magnitude of armed conflict. To some extent, however, the tendency was one of acceleration rather than of origination and it is certain that the pendu- lum will never make a full swing backward. The return to the political status quo ante will be as difficult, if less pressing, as the return to economic normalcy is proving to be. But of chief interest, perhaps, is the fact that during the war four great empires crumbled and a fifth was profoundly affected. The Peace Conference in attempt- ing to resettle Europe recognized the principle of nation- ality as the basis of political organization and created out of old empires a number of new states. An altered atti- tude was evident also in the British Empire. The right of the Dominions to control in effect their own foreign policies, and the right of the "subject" peoples of India, Egypt, and Ireland to have a greater measure of self- government, were no longer seriously questioned. The creation of new political entities out of the ruins of the European empires was, on the surface at least, at variance with what seemed to be a fairly constant tendency in the development of world politics. From hundreds of members after the Peace of Westphalia Germany alone had more than 300 states the community of states had PRINCES AND PARLIAMENTS been reduced to barely more than fifty. The United States, the British Empire, Germany, Austria-Hungary, Russia, Italy, and Turkey were all composite systems. There were only seven European states which did not contain within their continental boundaries more than one nation. These were Andorra, Denmark, San Ma- rino, Liechtenstein, Monaco, Holland, and Portugal. 1 As a result of the war, Poland, Esthonia, Czechoslovakia, Austria, Finland, and Danzig have all adopted written instruments of government with some markedly demo- cratic features. Germany and the German states aban- doned the monarchical principle (John II of Liechten- stein is the only prince remaining in Central Europe). Hungary continues her old form of government (without a king, however, for the present); and Jugoslavia (the Kingdom of the Serbs, Croats, and Slovenes), although a constitutional monarchy, has adopted a very liberal con- stitution. In Russia, apart from the economic philosophy of communism, the soviet principle of government is, to quote a conservative critic, "ingenious and interesting as a novel form of constitution" and "deserves to be studied, apart from any doctrines, on its own merits." 2 In Asia, four new states will attempt republican governments the Far Eastern Republic, Georgia, Armenia, and Azer- 'The list is that in The Statesman's Y ear-Book, 1915. "In July, 1914, a map of Europe showed that there were on the continent twenty-two separate states, counting Germany as one; to-day there are thirty-five, again counting Germany as one. The states that were neutral in the Great War have not suffered any changes save only Denmark, which in November, 1918, became separated from Iceland. Iceland has been recognized by Denmark as a sovereign state, the only connection between the two being Christian X, who is King of Denmark and also King of Iceland." Two other states, though technically neutral, were influenced by the results of the war. Luxemburg is no longer part of the German Zollverein and a referendum in 1919 declared in favor of an economic union with France. Before the war, also, Liechtenstein was practically a dependency of Austria, but on November 7, 1918, its Diet resolved on complete independence. "The States of Modern Europe," The New Europe, September 30, 1920. *Bryce, Modern Democracies, Vol. II, p. 583 (New York, 1921). A less con- servative critic thinks that the experiment involves " the most vital question of political theory and practice in Central and Eastern Europe to-day." The New Statesman, January 17, 1920. Growth of democratic principle NEW CONSTITUTIONS OF EUROPE Increase in number of republics baijan, the last named being particularly interesting as marking the first democratic! experiment in a Mussulman country. A century ago there was in the Old World only one spot in which the working of democracy could be studied. In 1914 there were five republics. Within a few months the number has been trebled. 1 It has been a remarkable period of constitution drafting. That so many peoples unaccustomed to self-government should thus accept the democratic principle is a genuine tribute to that principle. It is none the less a danger. It will subject republican government to a terrific strain. 2 This will not be any the less so because of the more socialistic schemes of dis- tributive justice that the new democracies are attempting to evolve. 'In 1916 an English writer classified existing methods of government as fol- lows: Europe 5 republics (Switzerland, Portugal, San Marino, France, An- dorra); 14 constitutional monarchies (Austria, Bulgaria, Rumania, Serbia, Montenegro, Greece, Italy, Spain, Holland, Belgium, Denmark, Sweden, Norway, Luxemburg), and 3 despotic monarchies (Russia, Germany, and Turkey). In Asia he listed one republic (China); 2 limited monarchies (Japan and Siam), and 5 despotic monarchies (Persia, Afghanistan, Nepaul, Oman, and Bhutan). The inclusion of Japan as a "limited" monarchy and Germany as a "despotic" monarchy shows the influence of the war psychology. In Africa there were one republic (Liberia) and two despotic monarchies (Abys- sinia and Morocco). America had 21 republics. Of the fifty-four govern- ments mentioned, 28 were republics (only seven outside of America), 16 limited and 10 despotic monarchies. A. E. Duchesne, Democracy and Empire, p. 109 (Oxford, 1916). This enumeration does not include the self-governing British Dominions. 2 " Neither the conviction that power is better entrusted to the people than to a ruling One or Few, nor the desire of the average man to share in the govern- ment of his own community, has in fact been a strong force inducing political change. Popular government has been usually sought and won and valued, not as a good thing in itself, but as a means for getting rid of tangible grievances or securing tangible benefits, and when those objects have been attained, the interest in it has generally tended to decline. . . . Nevertheless, although democracy has spread, and although no country that has tried it shows any signs of forsaking it, we are not yet entitled to hold with the men of 1789 that it is the natural and therefore in the long run the inevitable form of government. . . . Popular government has not yet been proved to guarantee, always and everywhere, good government. If it be improbable, yet it is not unthinkable that as in many countries impatience with tangible evils substituted democracy for monarchy or oligarchy, a like impatience might some day reverse the proc- ess." Bryce, Modern Democracies, Vol. I, pp. 41-42. In most democracies, however, it is probable that any possible reversal to a monarchy or oligarchy will be by way of an attempted dictatorship of the proletariat. PRINCES AND PARLIAMENTS The results of the war were so decisive, the crumbling of the empires was so complete that in most of the new states the "founding fathers" were at liberty to fashion their governmental arrangements as they wished. 1 Tra- dition had been so rudely shaken that they felt little obli- gation toward or respect for existing institutions. They were footloose. They could borrow and adopt from the written constitutions of the world. They could even im- provise out of hand. Even so, before discussing some of the more striking features of the new instruments of gov- ernment, it may be worth while to venture a few generali- zations on what had gone before; for the abruptness of a break in institutional life is often more apparent than real. In politics a generalization is not infrequently a theft from the truth; there are, nevertheless, tendencies that show their heads above the forest of details. The break in political traditions The age of constitution making that may be compared with the recent period in Europe was in the early part of the nineteenth century. It resulted largely from the in- fluence of Montesquieu. 2 In the seventeenth and eight- eenth centuries "it appeared to be essential to the modern notion of the state that there should be somewhere a power capable of making laws, and which, accordingly, being l " Another danger of which a Peace Conference will, we may hope, beware, is that of assuming responsibility for framing constitutions and erecting govern- ments in States which the treaty of peace will call into existence. ... It would be better to let the peoples of those regions settle for themselves their relations with one another and their form of government rather than for the treaty-making Powers to undertake the task. If the latter were to attempt it, they could hardly escape liability for maintaining and guiding the course of whatever government they had set up, a thing always full of risks for all parties concerned, and specially difficult when undertaken by a Concert of Powers. . . . The new States so constituted or enlarged will doubtless have plenty of troubles to face, but each had better face those troubles for itself and learn by its own experience." Lord Bryce, Essays and Addresses in War Time, pp. 170- 171 (New York, 1918). With one or two exceptions as to Germany and Austria the Peace Conference followed Lord Bryce's advice. For questions as to the protection of minorities and the case of Danzig, see below, Chapters V, XVII. *Sir John Seeley calls the period that commenced with American independ- ence "preeminently the constitutional period of the modern world." Intro- duction to Political Science, p. 209 (London, 1896). Constitu- tions of seventeenth and eighteenth centuries 6 NEW CONSTITUTIONS OF EUROPE Advantages of monarchy Defects of absolute monarchy the source of law, could not be bound by any laws : and it was essential to the ideal of the modern state in a normal and not anarchical condition that this power should be supreme; that it should receive the complete obedience of an overwhelming majority of the citizens, and through their obedience be able to bring the organized force of the community to crush any open resistance of individu- als or groups." 1 This ideal was realized by the con- centration of authority in one individual and it was deemed that the disadvantages of monarchy were out- weighed by the advantages of order and the avoidance of anarchy. Such a system, however, could not perdure, for, in the language of Professor Sidgwick, "there are two different kinds of defects in absolute monarchy. It is not only a defect that the supreme power of law-making is in the hands of an individual, who may not use it in the interests of the community: it is a further defect that the execution of the laws being under the control of the same person, there is no sufficient guarantee that he will observe even his own laws, if passion or favor urge him to break them." It follows, then, that " there is an obvious gain in separat- ing legislative from executive and judicial functions in such a way that those who execute the law are as much bound to obey it as those on whom they execute it; and that the question whether they have obeyed it or not may always be brought before impartial judges for decision." 2 This separation of powers was realized to a degree in the ^enry Sidgwick, The Development of European Polity, p. 141 (London, 1903). *Ibid., p. 41 3. Cf . Sidgwick, The Elements of Politics, Chapter XX, p. 361 (Lon- don, 1891). "But there is no certainty that a representative legislature, chosen by universal suffrage, will not interfere with the free action of individuals more than an absolute monarch would: the essential difference is merely that under absolute monarchy a majority of sane adults may be forced to submit to laws that they permanently dislike, whereas, if a popularly elected assembly is su- preme in legislation, this coercion can only be applied to a minority. To this extent constitutional freedom affords a security for civil freedom; but a priori reasoning and experience combine to show that there is no further connection between the two." PRINCES AND PARLIAMENTS English constitution. 1 By erroneously describing it, Montesquieu transformed the English constitution into an idea. His inaccuracy did not lessen no doubt it increased the influence of his IS Esprit des Lois. In any event, it may truthfully be said that England had the "mother of parliaments." 2 On the continent constitutional monarchy developed two general types there being, of course, many minor differences with regard to the suffrage, second chambers, legislative powers, and the control of the executive. Bluntschli called the types "true" and "false," which was on a par with his characterization of the state as "masculine" and the church as "feminine." Suffice it to say that in the one case, Germany being the best example, the hereditary monarch had real executive and legislative authority, the latter being partly indirect. He governed as well as reigned, even though he had octroyed a constitu- tion and had permitted certain formal limitations on his powers. The accepted philosophy of the state was that political power was possessed, not by the people, as in England after 1688, but by the monarch; and the constitu- tional arrangements did little to contradict this theory. 3 The other type was the English type. This was the more prevalent type, especially in the Romance coun- tries. Belgium in 1831; Portugal after 1852; Sardinia in 1848 (extended to the rest of Italy by 1870) ; Holland after 1848, and Spain after 1876 all drew in large measure on England. Even greater borrowings were made by France l " Theological theory having fixed the principle of kingship, practice was to settle the problem of the control of the kingship by constitutional government the special contribution of England to the political systems of history. The solution emerged in the English way, fortuitously, out of the party situation developed under William and Anne, and further under George I, and finally crystallized, as it were, by the personality of Walpole. Contrary to the common account of it, the solution was not planned. It came about." J. M. Robert- son, Bolingbroke and Walpole, p. 33 (London, 1919). See A. F. Pollard, The Evolution of Parliament, Chapter XII (London, 1920). *See Willoughby and Rogers, An Introduction to the Problem of Government, Chapter XX (New York, 1921). Montesquieu and the English constitution Types of constitu- tional monarchy German type English type 8 NEW CONSTITUTIONS OF EUROPE and the British Dominions. France embodied the Eng- lish cabinet system in a republican constitution, where it came to be profoundly modified in actual practice by multiple parties, a strong second chamber, and the enforce- ment of executive responsibility without the complement of dissolution. The Dominions employed cabinet govern- ment in federal systems, where the powers of the titular executive became even more attenuated than in England or in France. The federal republics of the United States and Switzerland stand outside the European development although they learned from it in the earlier stages and in- fluenced it in its later modifications. 1 Political Great Britain adapted her constitution to the require- doctrines ments of the nineteenth century in comparative calm; 1815-1880 , ., . . . ^ . j but progress on the continent 01 Europe was accompanied by much violence. 2 "From the fall of Napoleon's empire for full two-thirds of a century agitation was continuous and wars were not infrequent for the realization on the Continent of political ideas that had been made prominent by the French Revolution. Until the middle of the cen- tury the history of the period is punctuated with insurrec- tions; after 1850 the type of disturbance changes to international war." From the point of view of political philosophy, these sixty-five years (1815-1880) of strenuous statecraft show "three bodies of doctrine occupying suc- cessively the chief place in the current of speculation. The first was constitutionalism, which dominated thought till the middle of the century. The second was national- 1 There is an admirable though unsympathetic summary of this constitution- making in the first essay of Sir Henry Maine's Popular Government (London, 1885). He has some interesting remarks on "two events, one of which greatly encouraged, while the other in the end greatly discouraged, the tendency of popular government to diffuse itself." These events were the foundation of the United States and the French Revolution. *" In England, as we all know, succession to the throne rests upon a revolution the result of one of those political expediencies that amount to a necessity though masters of reasoned eloquence, from Burke to Macaulay, have put upon it a saving face of continuous law and order. In Italy, Belgium, Sweden, Nor- way, the sovereign wears a revolutionary crown." Lord Morley, Notes on Pol- itics and History, p. 40 (New York, 1914). PRINCES AND PARLIAMENTS 9 ism, which reached the climax of its sway over men's minds in the sixties. The third was socialism, which was on the high road to universal absorption of philosophy when the period closed." 1 The belief was especially strong that a constitution or fundamental law was necessary for a rational and work- able system of government. The demand for such a docu- ment was part of the programme of every liberal move- ment, and concessions came quickly. Only Austria, Russia, and Prussia resisted energetically. After 1848 the Hohenzollerns and Hapsburgs yielded. By 1880 only Russia was governed without a written constitution. During the agitations and conflicts that attended the progress Doctrine to this end, theoretical debate developed new and striking doc- of con- trines only as to the content, not as to the desirability of the stitution- written code. There was the greatest diversity among the ac- alism tual constitutions as to the organization and action of the governments. In every state there was continuous strife be- tween parties devoted to the application of liberal and conserva- tive interpretations respectively to the fundamental law, or to the expansion of it in the sense of their interests. As to the es- sential requirements of constitutional government, theory was practically unanimous in holding that there must be some guarantee of rights to the individual and some reciprocal check and balance among the legislative, executive, and judicial powers. It was further held by all but the ultra-conservatives that ra- tional government required the participation of some form of deliberative assembly, representing in some way the body of the population. All these requirements had been understood and met in France in 1789 and the following years, but the swift progress of those years into anarchy remained a potent warning to the Liberals of the next generation and interposed a barrier for decades against every suggestion of republicanism. Hence the chief problem of those who speculated on the theory of con- stitutional government was to find a safe and useful niche in the system for the monarch. Thus until after 1848 the theories of the constitutional state, Rechtsstaat, as the Germans called it, were largely concerned with the effort to reconcile the functions of a representative assembly with those of a hereditary monarch, to insure the lib- Running, Political Theories from Rousseau to Spencer, pp. 247, 250 (New York, 1921). 10 NEW CONSTITUTIONS OF EUROPE Problems of the new consti- tutions Slow growth of republi- canism erty of the subject individual against the historical and tradi- tional omnipotence of the reigning individual, and to partition sovereignty neatly between the prince and the people or banish the troublesome concept from the ken of philosophy. 1 Such theories, as we shall see, have apparently not both- ered the framers of the new European constitutions. They have been concerned with safeguarding the rights of individuals and minorities; with various expedients (the initiative, referendum, proportional representation) to in- sure governmental obedience to the popular will; with special arrangements to give their second chambers only a mildly suspensory veto, and to provide for the control of diplomacy; and with stipulations for extensive agrarian and industrial reforms. This new orientation of constitu- tional problems has come about for a number of reasons, but not the least important is the fact that the republican principle was almost as a matter of course substituted for that of constitutional or limited monarchy. But for the crash of the war this substitution would have been greatly delayed. Republicanism, perhaps, was spreading, but very slowly. Indeed, a distinguished English historian 2 could say in 1911 that since 1870 the cause of republicanism had made little progress in Europe. 3 Democracy had been busy capturing parlia- ments and securing extensions of the suffrage; 4 but it had not been assaulting crowns. dunning, op. cit., pp. 252-253. 2 H. A. L. Fisher, now President of the Board of Education. 3 "The accepted formula of political progress seems, if we are to be guided by the recent examples of Russia and Turkey, to be constitutional monarchy rather than republicanism. The republican movement has done its work. Its ideals have been appropriated and used with more or less of completeness into the political system of Europe, and most of the domestic programme of 1848 is now fixed and embodied hi the institutions of the Continent which, save only in France, Switzerland, and Portugal, retains an explicit devotion to hereditary monarchy." Fisher, The Republican Tradition in Europe, p. 337 (New York, 1911). 4 Universal male suffrage was adopted in elections to the Reichstag in 1871, in Spam in 1890, and in Austria in 1907. PRINCES AND PARLIAMENTS 11 France [said Mr. Fisher] is still the only great European re- public, and the political history of France under her new regime has not been such as to invite imitation. The position of the monarchies, which seemed so precarious in 1848, has been con- siderably, indeed progressively, improved since the failure of that great and generous outburst of high but ill-calculated ideals. In part this change has been due to personal causes. The level of political intelligence among monarchs, which was very low in the generation preceding 1848, has certainly improved; and the virtues of Queen Victoria and King William I of Prussia have had some share in dispelling the clouds of criticism which had collected around the representatives of their respective Houses. How thick those clouds were in England no student of Thackeray's "Four Georges" or of the old newspapers is likely to forget. 1 Mr. Fisher considered that the urgency of social and economic questions had also been of great importance in distracting attention from the monarchical principle. "The question of the relations of capital and labor is in truth, and has been discovered to be, far more important than the precise form assumed by the executive in a demo- cratic state. . . . The Austrians, the Germans, and the Belgians content themselves with advancing proposi- tions which are thought to be immediately relevant to the material well-being of the lower classes, and are careful to abstain from language which might be construed as revolutionary or seditious. Republican feeling may be widely diffused, but it has undergone an allopathic change. A vague, all-pervading discontent with the economic struc- ture of society has taken the place of the simple and direct protest against the costliness of crowns and the profligacy of courts." 2 Three other factors were listed by Mr. Fisher as contrib- uting to the decline of European republicanism. He gave first place to the success of Bismarck's statesmanship in Germany. "Finding Germany poor, weak, divided, Bismarck left it the greatest military and industrial power 'Fisher, op. cit., p. 320. *Ibid., pp. S2&-327. Due to character of monarchs Due to social and economic problems Due to Bismarck's success 12 NEW CONSTITUTIONS OF EUROPE on the Continent." The principal instrument he made use of was "the force of the Prussian Monarchy," and Bis- marck deliberately set himself "to affront all those liberal principles which enlightened Germans had derived from the political history of France or England." As a result a great gulf divided "the German mind of 1888 from the German mind forty years before, when the Frankfort Parliament was painfully and passionately elaborating the rights of man." Due to Mr. Fisher placed the growth of imperialism second imperial- j n hj s category of the influences that had rehabilitated or strengthened monarchy. The British crown was necessary to keep the Empire together. 1 Whatever may be said about the political psychology of Dominions that are satis- fied with such an imperial tie, it is undeniably true that the principle of monarchy is an important element in the political philosophy of the British Empire. The taste for ritual, for playthings, for make-believe, is deeply rooted in human nature, and monarchy appeals to the deferen- tial instincts of the ordinary human being. Overthrow the monarchy, replace the King with an elective president, and what would become of the loyalty of Australia, New Zealand, or Canada? The British Colonists have no particular respect for the Mother of Parliaments, and a very particular and not ill-grounded aversion to the rule of Downing Street; but they regard the Crown with feelings of simple and passionate venera- tion. The King, having been deprived of political power, can- not harm them; and having little ritual themselves, they are x On this point see H. Duncan Hall, The British Commonwealth of Nations, Chapter IX (London, 1920); Graham Wallas, Our Social Heritage, Chapter X (New Haven, 1921); and the classic statement in Bagehot, The English Consti- tution, Chapters III and IV (2d Amer. ed., New York, 1877). Sidney and Beatrice Webb, arguing for radical changes in the present form of government, are nevertheless willing to keep the King. They say: "If we pass from the constitutional theory of the text-books to the facts as we see them to-day, what we have to note is that the particular function of the British Monarch his duty as king is not the exercise of governmental power in any of its aspects, but something quite different, namely, the performance of a whole series of rites and ceremonies, which lend the charm of historic continuity to the political institutions of the British race, and which go far, under present conditions, to maintain the bond of union between the races and creeds of the Commonwealth of Nations that still styles itself the British Empire." A Constitution for the Socialist Commonwealth of Great Britain, p. 61 (London, 1920). PRINCES AND PARLIAMENTS 13 the more fascinated by the pomp of an ancient and dignified institution which they have no means of reproducing in their several communities, but which they regard as the joint and several possession of the British race. 1 The third factor that Mr. Fisher enumerated in support of monarchy is highly questionable. "It is now," he said in 1911, "a very general belief that the cause of European peace is assisted by the social and family ties which sub- sist between the monarchs of Europe." However widely this general belief may have prevailed a decade ago, it is certainly no longer held. Indeed it is arguable that the monarchical principle as it operated in foreign policy was in no small part responsible for the cataclysm that resulted in its almost complete extinction. 2 Mr. Fisher was a greater historian than prophet. His vision of the ending of the republican movement and of peace resting upon dynastic bonds proved to be a delu- sion. 3 But his analysis of the forces working to preserve monarchy is sufficiently acute to warrant the extended Wisher, op. cit., p. 329. Sir Henry Maine, in his criticism of popular institu- tions, admitted that the United States "disproved the once universal assump- tions that no Republic could govern a large territory, and that no strictly Re- publican government could be stable." Popular Government, p. 12. Mr. Fisher also says that the success of the United States proves that an elective President may govern a continent that is geographically continuous; but it does not prove that the republican system is adapted for disjoined communities. He suggests also that the monarchy in the Iberian Peninsula has been perma- nently weakened by the loss of the American colonies of Spain and Portugal. But it may be pointed out that this sentimental factor, while it may have strengthened the monarchy in England, had little or no effect on the continent of Europe. 2 On this point, see Chapter VII. At the time of the French Revolution it was a widely held belief that Europe would become a federation of republics and that this would ensure peace. The theory, of course, went back to Kant's little treatise On Perpetual Peace (1795). According to Kant, four conditions were essential: "(1) monarchs being largely responsible for war, every state must have popular government; (2) international law must be backed by a federation of free states; (3) men must be permitted to visit everywhere, but, as if to obviate one of the subsequent evils of the industrial revolution, ownership must not be allowed in foreign lands; and (4) no state may violently interfere with the constitution and internal administration of another." C. J. H. Hayes, "The Historical Background of the League of Nations," in Duggan, Ed., The League of Nations: The Principle and the Practice, p. 32 (Boston, 1919). 'See his own essay on Political Prophecies (Oxford, 1919) and Willoughby and Rogers. An Introduction to the Problem of Government, p. 6. Monarchs did not preserve peace 14 NEW CONSTITUTIONS OF EUROPE Mr. Wells on the use of monarchy Popular control over monarchs quotations that have been made. To the factors that he mentions, certain other not unimportant influences may be added. As Mr. Wells has put it: In support of the dynastic system was the fact that it did exist as the system in possession, and all prosperous and intelli- gent people are chary of disturbing existing things. Life is full of vestigial structures, and it is a long way to logical perfection. Let us keep on, they would argue, with what we have. And another idea which, rightly or wrongly, made men patient with the emperors and kings was an exaggerated idea of the civil insecurity of republican institutions. 1 Moreover, for the most part kings were behaving them- selves; and although conflicts with legislatures were fre- quent, 2 there were popular as well as royal victories. Despite some doubts as to whether the royal veto power had really fallen into desuetude 3 and some alarms as to the share of Edward VII in foreign policy, 4 the English King was, as Sir Henry Maine said, a monarch who reigned but did not govern. In spite of the frankly undemocratic character of the German constitutions and extreme lan- guage from the Emperor as to his "divine right," there were a sufficient number of incidents like that of the Daily Telegraph interview to create an impression of royal reasonableness and to confine agitation for the re- publican principle to the programs of the smaller, radi- ical parties. This moderation in the use of the royal prerogative and the occasional victories of representative bodies were appreciable factors in upholding the monarchi- cal tradition. When the Hohenzollerns and Hapsburgs were finally defeated and their prestige was utterly de- J H. G. Wells, "The Future of Monarchy," The New Republic, May 19, 1917. *" Prince and representative body were in almost every state of Central Europe in strife as to the scope of their respective powers; neither would con- cede the right of the other to partition the disputed field; an authority with competence to determine competence was inevitably suggested." Dunning, Political Theories from Rousseau to Spencer, pp. 289-290. *See Wallas, Our Social Heritage, Chapter X. 4 See below, Chapter VII. PRINCES AND PARLIAMENTS 15 stroyed, it would have been understandable, perhaps, if their peoples had in desperation turned wholly against monarchy as such; but even hi this dire circumstance the really effective stimulus toward republicanism appears to have come from the outside. The primary cause of such a complete change was probably the hope that thereby better peace terms might be secured. In states like Esthonia and Czechoslovakia, released from control by oppressive monarchies, there was a good deal of demo- cratic fervor; but this was not the case with the Cen- tral Powers their constitutions to the contrary notwith- standing. Two Emperor-Kings, five Kings, five Grand Dukes, six Dukes, and seven Princes all reigning sovereigns under the old regime in Germany and Austria-Hungary lost their royal jobs as a result of the World War. 1 Most of the abdications, however, were peaceful, even friendly. In all the countries affected strong monarchical parties exist; and it is entirely possible that, as in Greece, thrones will be occupied again, with no great outcry from powerful objecting groups. As a recent writer says: To interpret these political developments as the triumph of the Peoples' Will in conflict with the monarchic, or the militar- ist, or any other reactionary principle, would be misleading. . . . The issue of Republicanism versus Monarchy in the small States had not in fact been on the tapis of practical politics in Germany any time in the last fifty years. In many or most of them it would probably never have been raised after the collapse, had not the Allies, or rather President Wilson for, so far as is known, the Allies made no pronouncement on the subject indicated their desire for the establishment of re- *In Central Europe one German sovereign remains Prince John II of Liechten- stein. "The Principality is mostly the private property of the Prince, who, as he draws almost all of the revenue, also defrays almost all of the expenditure. The victory of Republicanism would accordingly imply the introduction of taxes, from which this fortunate state is at present entirely immune; and also, if it were to join Germany or Switzerland, some form of military service. In these circumstances competent observers incline to the view that Prince John can continue to count on the dutiful allegiance of his subjects." "Monarchism in Central Europe," Quarterly Review, January, 1922. Monarchical sentiment in Central Europe Friendly abdications Wilson's influence against monarchy 16 NEW CONSTITUTIONS OF EUROPE Faith in the representa- tive principle Radical attacks on parliamen- tary principle publican institutions in Germany as a preliminary to the nego- tiation of peace. 1 One further point of general interest remains to be noted. Despite the use of direct government (initiative, referendum, etc.), the political children of the Peace Treaty are putting their faith in legislatures and the representative principle. They are doing this at a time when, in England and France, as well as in the United States, considerable discontent with parliamentary gov- ernment is being voiced. The attacks come from both the Left and the Right. The radicals stress the bank- ruptcy of political methods and the impossibility of se- curing the kind of economic distribution that they desire through the existing political state. Some of them urge direct action that is, the use of their economic power for political purposes. In the words of one of their chief spokesmen : Arguments against direct action drawn from the fact of political democracy are no arguments at all, for they obscure the point that there can be no real " government of the people, by the people, for the people," in what is called politics unless that government finds full expression in the economic life of a community. The road to freedom lies not through the polling booth, but through the workshop gates. . . . Just in so far as the workers rely on the vote as the primary weapon, they will fail to win freedom; just in so far as they recognize that the value of the vote is in proportion to their industrial and economic strength they will succeed. 2 The direct actionists have certainly not intended to give aid and comfort to the parliamentary regime. Even so it is probable that the extremeness of their propaganda has alienated to the support of parliamentary government more persons than have been converted to a belief in the wisdom of its destruction. But not all of the radical critics of parliamentary government are direct actionists. 1 "Monarchism in Central Europe," Quarterly Review, January, 1922. 'William Mellor, Direct Action, pp. 51-52 (London, 1920). PRINCES AND PARLIAMENTS 17 A number of those 1 who desire extensive social changes put their faith in political methods. They seek reform by the process of capturing the parliament itself. More- over, there are many conservative critics 2 who, while refusing to accept the glibly flung accusation that parlia- mentary democracy is bankrupt, have nevertheless grave doubts whether the representative principle will continue to be adhered to without extensive modifications. These critics, instead of dropping the ploughshare of reform and retiring to speculate on the woes of the existing order and the beneficences of some one or other of numerous impend- ing millenniums, are concerned with analyzing the causes of the trouble and with suggesting possibilities of improve- ment. And even if they are not able to keep the business of representative government, as we now know it, out of the bankruptcy court, they hope to enable it to liquidate some of its liabilities and to "carry on at the old stand" upon a somewhat different basis. In his Modern Democracies Lord Bryce discounted the general belief in the decline of legislative authority. He cited, nevertheless, "some general causes" that "have been tending to reduce the prestige and authority of legis- lative bodies." He suggested that "the spirit of demo- cratic equality has made the masses of the people less def- erential to the class whence legislators used to be drawn, and the legislatures themselves are to-day filled from all classes except the very poorest." This, as he points out, is in some respects a gain, for the popular wishes can be l E.g., Sidney and Beatrice Webb, A Constitution for the Socialist Common- wealth of Great Britain (London, 1920); J. R. MacDonald, Parliament and Revo- lution (London, 1919). *To cite a Liberal critic: "It is a fact of universal admission that the prestige of the British Parliament has not been at so low an ebb in living memory as it is to-day. We should have, I think, to go back to the time when George III, in his pursuit of personal government, packed the House of Commons with his creatures, to parallel the disrepute into which the present Parliament has fallen. The House of Commons has lost its authority over the public mind and its in- fluence upon events." A. G. Gardiner, "The Twilight of Parliament," The Atlantic Monthly, August, 1921. Some who oppose direct action Criticism by conserva- tives also Lord Bryce on decline of repre- sentative government 18 NEW CONSTITUTIONS OF EUROPE better expressed; but "members of legislatures stand more than heretofore on the same intellectual level as their constituents. . . . The defect perpetuates itself, be- cause men are apt to live up to no higher standard than that which they find. The less the country respects them, the less they respect themselves. If politicians are as- sumed to move on a low plane, on it they will continue to move till some great events recall the country and them to the ideals which inspired their predecessors." 1 Effect on Lord Bryce thought that "the disappearance of this sense usiness ^ soc * a l responsibility" is important because it "has affected the conduct of business. Every rule of procedure, every technicality is now insisted upon and worked for all it is worth." This stiffening or hardening of the modes of carrying on public business has made parliamentary J Mr. Hilaire Belloc has recently written a book that seeks to establish the following thesis : "The House of Commons, though containing a representative element, was, and is, essentially not a representative body, but an Oligarchy; that is, a small body of men segregated from the mass of the citizens and renewing itself. But no Oligarchy works (that is, can be morally accepted or exercise authority) unless it be an Aristocracy. Mere Oligarchy, the mere rule of a clique without the excuse of an imputed excellence, will never be tolerated among men. The whole meaning of Aristocracy is the provision of a sort of worship addressed to the few that govern. Therefore the House of Commons was vigorous and healthy in its function only so long as it was the Aristocratic organ of an Aristo- cratic State. "For the definition of 'The Aristocracy' in an Aristocratic State is, not a body recruited by birth or even from wealth, not a caste (though it may be a caste), least of all a plutocracy, but essentially an Oligarchy enjoying a Peculiar Respect from its fellow citizens. Upon the failure of the Aristocratic quality in the House of Commons, upon the decline of that body into a clique no longer respected, its moral authority disappeared; and with that moral authority dis- appeared its power of government." Meanwhile the functions of the state were rapidly increasing and a double evil existed: "the rapid accretion of ma- terial power in something which, as rapidly, was growing morally unfitted to exercise that power." Mr. Be'.loc thinks that "if some form of Monarchy does not succeed to the lost inheritance of the House of Commons, the State will lose its greatness." The House of Commons and Monarchy, pp. 13-14 (London, 1920). There is a half truth in this analysis; but the case is vastly overstated, and Lord Bryce's version is probably much more accurate. Mr. Belloc sug- gests the rule cf a single man a Monarch (not necessarily hereditary) ; but one of the causes of the decline of the English House of Commons is Mr. Lloyd George's dictatorship, and to argue for a monarchical restoration is almost gro- tesque. Mr. Ernest Barker, commenting on Mr. Belloc's book, thinks that Parliament will continue as it is, with a modified upper chamber, which perhaps will represent interests; that there will be a good deal of devolution; that the PRINCES AND PARLIAMENTS 19 deliberations seem more and more of a game, and less and less a consultation by the leaders of the nation on matters of public welfare. "A like tendency is seen in the stricter party discipline enforced in the British self-governing Dominions. As party organizations are stronger, the dis- cretion of representatives is narrowed: they must vote with their leaders. The member who speaks as he thinks is growing rare in English-speaking countries. Whips called him a self-seeker, or a crank, yet his criticisms had their value." All this is true enough; but it would seem to be a symptom rather than the disease itself. And so it is with the payment of members, which, to Lord Bryce's mind, has lowered their status and fettered their freedom. Payment, however, was inevitable in the United States where the distances are so great and residence in Washing- ton requires that business and home be left for the con- gressional session. It was inevitable, also, in Europe, for it was natural enough that enfranchised wage earners should often wish to exercise the right of electing repre- sentatives from their own economic and social class. 1 Moreover, if, under cabinet government, the payment of members has made the less opulent sometimes reluctant to risk their seats and their incomes by voting against the Government, such an evil is doubtless less than that of making it impossible for members of the wage-earning class to serve in Parliament, or of compelling them to rely restoration of the party system will mean government by discussion, and that "there will be, organized and unorganized (probably organized), a sort of fifth estate." "Besides the Press (freed, one hopes, from the incubus of proprietors' control) there may well be an industrial or labour council, not as a formal part of the legal constitution, but informally suggestive, consultative, advisory to Parliament and the Cabinet. "The 'deferential' spirit being dead, we are likely to have the electorate, when it has recovered from its present temporary paralysis, asserting itself more vigorously than in the past. It is possible that we may come to experiment with the referendum; it is possible, on the other hand, that a purified fourth estate, and a new fifth estate, may provide sufficient channels." "The Origin and Future of Parliament," Edinburgh Review, July, 1921. l See the provisions in the constitutions below (e.g., Prussia and Belgium) requiring the acceptance of government allowances. Effect of paying legislators Other organiza- tions compete with legisla- tures 20 NEW CONSTITUTIONS OF EUROPE upon payments made by the industrial organizations from which they come. Lord Bryce called attention also to the fact that "other organizations occupying themselves with public questions and influencing large sections of opinion, have arisen to compete with legislature for the attention of the nation." 1 Party conventions or conferences are not very important; but "the meetings of industrial sections and of the new class parties, such as the Trades Union Congress in Eng- land and the Congress of the Peasant Party in Switzerland, the Socialist Congresses in France, and the Labor Union Congresses or assemblies representing the farmers or miners in the United States, the gatherings of farmers in Canada, and the still more powerful meetings of Labor organizations in Australia all these are important, for they represent a large potential vote and their deliverances serve as a barometer showing the rise or fall of opinion on J One interesting resort to extra-governmental agencies was Mr. Lloyd George's experiment with a committee of business men (under the chairmanship of Sir Eric Geddes, then a member of the House of Commons but not of the Cabinet) to advise on questions of finance and to report to the Cabinet. The Committee was dubbed the "super-axe" committee and stringent economy was its object. The Committee was apparently responsible to no one except the Prime Minister and, sitting hi private, was put in the possession of facts and information of wider scope than the Estimates Committee of the House of Commons was allowed to have. The Prime Minister thus had two financial advisers the Chancellor of the Exchequer and the Geddes Committee. A fact of prime importance was that the proposals_of the latter could be made without the Cabinet's being respon- sible for them. "However worthy may have been the motives of the Government in the in- stitution of a Committee of 'business men' to advise the Cabinet on the cost of contemplated policy, there can be no doubt that the existence of this body will be a grave innovation on Constitutional usage and in derogation of the author- ity of Parliament. This Committee will be the collaborators with the Cabinet on public policy and an authority overriding or being overridden by the Cabinet, with the result that Parliament, within the ambit of its privileges, will have the invidious task of discriminating between the policy of the Cabinet and the Committee. . . . "So long as the vote of the House of Commons on proposals of the Govern- ment involves the fate of a Ministry and the hostile speech of a member may ruin his political career, so long will Government and the country lack the effective deliberative services of Parliament, where growing impotence keeps pace with the steady advance of bureaucracy." Judge Atherley-Jones, Lon- don Times (weekly edition), August 12, 1921. The Committee reported in February, 1922, and some of its proposals were accepted and some rejected by the Government. PRINCES AND PARLIAMENTS 21 industrial issues. Those who lead them may win and wield a power equal to that of all but the most outstanding Parliamentary chiefs." 1 To what is probably one of the most important consid- Effect of erations bearing upon the impairment of parliamentary influence of prestige, Lord Bryce gave but scant notice. He men- press tioned the encroachment of the newspaper press "on the province of the Parliamentary orator, " and added: "Only the strongest statesmen can command an audience over the whole country, such as that which a widely read news- paper addresses every day. The average legislator fears the newspaper, but the newspaper does not fear the legis- lator, and the citizen who perceives this draws his own conclusions." But surely the question is much more important than Lord this. In the opinion of certain critics of the House of Esher's Commons, the press has been a most vital factor in the decline of parliamentary authority. 2 One eminent writer has even suggested that popular representation that is, the delegation of legislative power had for its basis the illiteracy of the people and the absence of sources of politi- 'Bryce, Modern Democracies, Vol. II. p. 340. "The issues of policy which now occupy legislatures are more complex and difficult than those of half a century ago. The strife of classes and formation of class parties were not foreseen, nor the vast scale on which economic problems would present themselves, nor the constant additions to the functions of governments, nor that immense increase of wealth which has in some countries exposed legislators to temptations more severe than any that had assailed their predecessors. The work to be done then was largely a work of destruction. Old abuses had to be swept away, old shackles struck off, and for effecting this a few general principles were thought to suffice. The next generation was confronted by constructive work, a remod- elling of old institutions in the effort to satisfy calls for social reorganization, a difficult task which needed more hard thinking and creative power than were forthcoming. Thus while the demands on representative assemblies were heav- ier the average standard of talent and character in their members did not rise. Never was it clearer than it is to-day that Nature shows no disposition to pro- duce men with a greatness proportioned to the scale of the problems they have to solve. "Taking all these causes into account, whatever decline is visible in the quality and the influence of legislatures becomes explicable without the assump- tion that the character of free peoples has degenerated under democracy." Ibid., Vol. II, pp. 341-342. *See the references in Willoughby and Rogers, An Introduction to the Problem of Government, pp. 141, 219, 313. 22 NEW CONSTITUTIONS OF EUROPE cal information. "Newspapers and the capacity of the constituent masses to read them," he says, "have sapped the foundations of representative government, as it has been understood in England, and 'public opinion' seems about to require more 'direct working' than the parlia- mentary system has hitherto afforded, or is likely to afford." 1 This, it should be noted, was written before the war and before the convulsions of the conflict had any effect on parliamentary institutions and cabinet control before, indeed, the country had witnessed Mr. Lloyd George's political legerdemain and his peculiar relations with the press. 2 The case has been more recently stated by another acute English critic: Mr. Side- It may be that the representative system was only a tempo- botham's rary expedient adapted to small electorates and an illiterate age, view and that the printing press will transfer our politics back to the stage at which the fortunes of nations were determined by a forum speech. The printing press, in fact, does enable a prominent politician to gather forty million people in a forum and address them as though they were a crowd of a few J Lord Esher, The Influence of King Edward and Other Essays, p. 103 (London, 1915). "The rapid development in the means of communication; the marvelous organization for the supply of information, if not of intelligence; the extension of the parliamentary franchise, and the diffusion of education; the increasing subordination of politics to economics; the substitution of vocation for locality as the basis of association; all these have tended towards the weakening of the representative principle and to the institution of methods appropriate to a more direct form of democracy. The press, the platform, the trade union, and the caucus, have unquestionably done something to decentralize political activity and to transfer discussion from Westminster to the constituencies, be they local or vocational." Marriott, "The Party System," Edinburgh Review, October, 1921. 2 "A press man was much more important to him [Mr. Lloyd George] than a Parliamentary colleague or a prince of the blood. He might forget to reply to an archbishop, but he would never forget to reply to a journalist. His acquaint- ance among the craft was more various and peculiar than that of any politician of this day or any other day. There was no newspaper man so poor that he would not do him reverence and entertain him to breakfast. While his former colleague, Mr. Asquith, studiously ignored the press and would no more have thought of bargaining with Northcliffe and Beaverbrook for their support than of asking his butler to write his speeches, Mr. George lived in the press world, knew every leading journalist's vulnerable point, humored his vanity, and gave him a knighthood or a peerage as readily as his breakfast." A. G. Gardiner, "The Twilight of Parliament," The Atlantic Monthly, August, 1921. PRINCES AND PARLIAMENTS hundreds. . . . This is the real menace to the representative system, and to the authority of Parliament. 1 It is a menace which might be somewhat lessened in England by allowing the House of Commons to express its opinion without the constant threat of dissolution if the opinion should be adverse to that of the Cabinet. A certain number of legislative proposals could be made party measures the Government to stand or fall on them; and on all other questions (including expenditure) the House might be permitted to express an independent judgment. Or, it has been suggested that dissolutions during the early part of a parliament should not take place at the will of the Government alone, but only if approved, say, by three-fifths of the House of Commons. Some such adjustment may possibly be made. Certainly the probable advantages seem sufficient to warrant ex- perimentation. 2 Concessions of this kind, however, will not be wrung from the Cabinet without a stubborn fight. The Government will not willingly relinquish the domi- nance that it now has over the House of Commons. These considerations the Press, the decline of parlia- mentary ability, the extensions of the suffrage, the in- crease of executive power, direct action by labor, and extra-constitutional organizations will all have great in- fluence upon the workings of constitutional government in ^Herbert Sidebotham, Political Profiles, pp. 251, 252 (Boston, 1921). Mr. Sidebotham says that the contention is "between Parliamentary authority and the representative system in politics on the one hand, and what may be called the principle of direct action in government. The direct action party in Labor politics, which seeks to accomplish its ends by economic pressure without reference to the slower methods of Parliamentary persuasion, everyone knows. But there has grown up in Government quarters a direct action party which likes to appeal to the sovereign people direct, through the Press now that the platform is losing its power, and over the heads of its constitutional representa- tives in the Commons. . . . Between the vast ochlocracy of the electorate which is easiest reached through the megaphone of the newspapers, and the Triumvirate of the Inner Cabinet, the representative system is in danger of being crushed out." 2 Note the methods of dissolution that have been provided in some of the new constitutions. Possible improve- ments in England Similar difficulties in the new states 24 NEW CONSTITUTIONS OF EUROPE the new states of Europe. These new states have bor- rowed from England, France, and the United States political machinery which now seems to be functioning with questionable efficiency. 1 These factors would cause difficulty even if the peoples were accustomed to self- government, which they are not. Moreover, although the line that could formerly be drawn between economics and politics is rapidly becoming blurred and indistinct, never- theless, to the extent that the distinction obtains, emphasis in the new states must of necessity be laid upon eco- nomics rather than politics. This will be true to a far greater extent than in England or France, and even in those countries there are the beginnings of a new orien- tation that cannot fail to influence representative govern- ment as we hitherto have known it. New The nineteenth century was mainly occupied in the conquest emphasis on of political equality. The right to the franchise, the right to economic combine, the right to education, the right to a full religious problems freedom it was upon the attainment of these that the minds of 1 Discussion of the weaknesses of, and methods of strengthening, parliamentary institutions is not confined to England. Thus, an anonymous French critic observes a number of faults in the French system. The first is that Parliament delegates its power, but is either unwilling or unable to control its use. The ministers have not the time to exercise it themselves, so they delegate it in turn to their subordinates. The responsibility, however, is Parliament's, for the ministers remain in office on its sufferance. The writer proposes a commission composed partly of Senators and Deputies and partly of non-officials which would view the administration as a whole, unify policies, attempt to insure efficiency, and strive for continuity. The second count in the indictment is that every minister is above all a politician rather than an administrator or a man of action. This of course raises the whole question of competence in poli- tics. Here also the writer suggests another wheel in the machine a council of administration in each department, and the association of a well-equipped under-secretary with the political head. The third weakness is that the chambers do their work by themselves and never call in experts to help them. Members are poorly prepared for parlia- mentary tasks and yet it would cost them dearly to admit this to constituencies blessed by universal suffrage. Parliament must call on specialists in legislative drafting, in economics, and in budget accounts. Only by securing expert advice can the ignorance of members be kept from continuing to be responsible for a decline of legislative authority. Finally, special machinery should be set up to inform Parliament how public funds are spent. There should be a corps of auditors and functionaries and inspectors to report to the chambers. Thus Parliament would secure knowledge that would permit it to make wise economies and justifiable reductions in personnel. "Justin," La responsabiliti du Parlement sous le regime parlementaire (Paris, 1918). PRINCES AND PARLIAMENTS men were concentrated ; the prestige of the House of Commons in large part derives from the fact that it was the agency through which they were secured. To-day the demand has drifted to the economic sphere; and for the first time in its history the House of Commons is squarely confronted by a demand that the concept of property be fundamentally changed. What has so far emerged with clearness in the struggle is the fact that the demand for economic equality is in substance different from the demand for political equality; and the doubt accordingly arises whether the House is fitted for that effort. 1 Whether the parliaments of the new states are fitted for such an effort is perhaps the most important question that will be answered by eventualities in the new democra- cies. Lord Morley once remarked pessimistically that although over three hundred constitutions had been pro- mulgated in Europe between 1800 and 1880, men had been very slow "in discovering that the forms of government are much less important than the forces behind them. Forms are only important as they leave liberty and law to awaken and control the energies of the individual man, while at the same time giving its best chance to the com- mon good." 2 It is with this "common good" that the new states are chiefly concerned, and at the moment, "common good" may almost be written "common goods." l The Nation (London), January 22, 1921. 2 Morley, "Democracy and Reaction," Miscellanies (Fourth Series), p. 300 (London, 1908). How important are forms of government "Popular" government Relation of executive to legislature CHAPTER II LEGISLATURES AND BUREAUCRATS FOR reasons that have already been discussed, the attempt has been made in all of the constitutions to create "popular" governments. 1 From this point of view the constitutions contain a number of interesting features. Two of these deserve special consideration: the relation of the executive to the legislature and the control of ad- ministration. The direct government features which ap- pear in most of the constitutions do not require special treatment. 2 It is a striking fact that in all of the new constitutions the attempt is made to secure some form of responsible parliamentary government. 3 "The relation of the Su- preme Executive to the Legislative organ is one of the J The new states have avoided, so far as was possible, copying from the Russian constitution both as to economic and governmental theory. The legislatures have ample authority (as will be pointed out later) to interfere with private property, but whatever measures are taken will be matters of statutory rather than constitutional enactment. The new states point with pride, as Poland has done, to the fact that their constitutions contain "the liberal provisions of the Western European and American Constitutions" but nevertheless afford "a striking contrast to the communism of the Soviet Russian Government." Po- land's law makers "succeeded in the difficult task of combining the better features of the constitutions of the republics of the world and adapted them to the pecu- liar needs of the Polish Republic." 2 They are, however, considered incidentally in this Chapter and in Chapter IV. 3 "For the modern world the choice virtually h'es between Parliamentary, Presidential, and Soviet Democracy. The third is not, perhaps, wholly incon- sistent with the first, although the partisans of Soviet Russia denounce repre- sentative democracy with a fervor equal to that which distinguished Rousseau's criticism of the English Constitution. Essentially, however, the basic principle of Soviet Government is merely the substitution of organized industries for locality as the unit of representation, or rather of delegation. The incredible confusion in which the Soviet has involved Russia whether the confusion be due or not to the form of government is likely to discredit any further experi- ment in that direction for some time to come." J. A. R. Marriott, "Conserva- tive Principles," Fortnightly Review, March, 1922. 26 LEGISLATURES AND BUREAUCRATS 27 knottiest points in constitutional construction; it is va- riously conceived by different theoretical politicians who agree in accepting the principle of popular control over legislation, and variously determined in different modern states in which a popularly elected assembly is actually a main element of the legislature." 1 Before the recent experiments in Europe, it could be said, generally, that governments were divided into four types determined by the manner in which they treated this matter of the rela- tion of the executive and the legislature. There was, first of all, the English parliamentary system. The Cabinet retained office so long as it maintained the confidence of the House of Commons. "Caprice," said Bagehot, "is the characteristic vice of miscellaneous as- semblies, and without some check their selection of exec- utives would be increasingly mutable." 2 Equilibrium was maintained in England by the ministerial prerogative of dissolving the legislature. Secondly, there was the rigid system of a separation of powers best illustrated by the United States under which the Administration had no responsibility to the chambers. There was, thirdly, the Swiss collegial executive, elected by the Fed- eral Assembly but not responsible to it. 3 Finally, there was the German constitutional system, with a cabinet not responsible to the legislature but to the monarch who both reigned and governed. France, it may be said, finds herself midway between the British and Swiss systems. The ministry is responsible but has no unrestricted power of dissolution; and the ability of the legislature to have its way makes the French system more nearly assimilable to that of Switzerland. 4 'Sidgwick, The Elements of Politics, p. 406 (London, 1891). *The English Constitution, pp. 49-50. *See Lowell, Governments and Parties in Continental Europe, Vol. II, p. 198 S. (Boston, 1896). 4 Redsloh, "La constitution prussienne," Revue du droit public ct de la science pditique, Vol. XXXVIII, p. 191 (Avril-Mai-Juin, 1921). Types of executive relation to legislature NEW CONSTITUTIONS OF EUROPE Types in the new states Recent changes in English type The relative borrowings of the new states from these four types of government are significant. The rigid sys- tem of the United States apparently had no attractions. Jugoslavia is the only instance in which the titular execu- tive is a king. Czechoslovakia and Poland took for their models the French constitution; they have presidents elected by the chambers but with powers somewhat greater than those of the President of France. Germany has a president elected by the people but a cabinet responsible to the legislature. 1 Most interesting of all, however, is the arrangement in Esthonia and the German states (Lander). The ceremonial executive is dispensed with; the Swiss collegial executive is the model that is most closely fol- lowed, with the important difference that it is responsible to the legislature, and that, in determining the result of conflicts, the people are to be consulted directly. The framers of the new constitutions sought rather obviously to avoid the extremes of the English and French systems. For in England, as has been suggested, minis- terial responsibility, however nice in theory, has been sadly attenuated in practice. As Mr. Strachey felici- tously said, the English constitution is "a living thing, growing with the growth of men and assuming ever- varying forms in accordance with the subtle and complex laws of human character. It is the child of wisdom and chance." It happens, therefore, that Bagehot's incisive analysis of a government that was really responsible is far from being true of existing political arrangements; it is what he himself inveighed against as "literary theory." England has come in part to a separation of powers. The Prime Minister has become more like the American Presi- dent. He has thrown off a large part of his dependence on the House of Commons, where he appears only occa- sionally to deliver a "message." Mr. Lloyd George deals *In Austria the president is elected by the legislature. The Federal Ministry is also elected on nominations by the main committee of the Nationalrat. LEGISLATURES AND BUREAUCRATS 29 with the press rather than with Parliament. It is the electorate rather than the division lobby that is the arbiter of the fate of ministries. Since 1870 (leaving the war changes out of account, for they do not affect the argu- ment) only one English ministry that could normally command a majority in the House of Commons has been dismissed by the independent action of the House. The vast extensions of the suffrage, the payment of salaries to members, the decline (or is it merely difference?) in the character of public men, the number of placemen that a Cabinet has in the Commons and can always rely upon, the recrudescent menace of "direct action," the general weakening of faith in the efficacy of parliamentarism these among other causes may be indicated. Mr. Lloyd George's own opportunism and the nadir of political mo- rality reached in the 1918 election are not responsible for the development; they merely accentuated it. In striking contrast is the rapid panorama of Cabinet The crises and changing personalities which gives perennial French interest to French political institutions. M. Clemenceau, an ex-Prime Minister, breaks a long silence; the Chamber of Deputies is excited, and the Government trembles. Mr. Wilson or Mr. Asquith could cause nothing so troublous; and the difference is not one of personalities but of con- stitutional structure. In England and the United States, office-holders if they escape scandal have some assurance about the immediate future; but in France the Govern- ment is always facing a precarious to-morrow. Indeed, changes of government in England are now so rare that those who hold office are able to work in careless security, while those in opposition criticize with faint hope of suc- cess. In the United States the popular will is always sub- ject to the calendar; but in France parliamentary govern- ment is subject to the headline news of any day. As has been indicated, the development in France has been different from that in England because the French 30 NEW CONSTITUTIONS OF EUROPE Reasons for English and French differences Types in the new states Ministry does not have the power to dissolve the Chamber of Deputies. Responsibility without the complementary power of dissolution results in a truncated parliamentary system. This is the crux of the matter, although the group system of parties in France would under any condi- tions be a formidable obstacle to the smooth working of parliamentary government. This is an obstacle, also, with which the new states of Europe are confronted. The average tenure of Cabinets under the Third Republic has been less than eight months. Some critics have consid- ered this as anarchic rather than efficient; they have cited it as demonstrating the political incapacity of the French. More sympathetic (and more accurate) observers have stressed the fact that these recurrent crises do not cause breaks in the continuity of policies; a Cabinet change means a new deal of the same cards rather than a different game. Not infrequently more than half the members of a new government had places under the old. Indeed, judged by results, which is the only real test, the French system cannot be said to be measurably inferior to that of England or the United States. In some important mat- ters control of the administration, for example its superiority is arguable. Nevertheless, in their search for a nicely balanced parliamentary system the new states have avoided the extremes of both England and France. In Germany it was no doubt advisable to have a rather powerful chief of state. Not only were the people accus- tomed to authoritarianism, but during the revolutionary transition a strong executive authority was almost indis- pensable. 1 The President of the Reich has larger powers than the President of the French Republic, 2 particularly J See, for example, Article 48 of the constitution which gives the President the right to declare a state of siege. On the state of siege in continental law, see Willoughby and Rogers, An Introduction to the Problem of Government, Chapter VI. 2 For an interesting discussion of recent developments in France, with refer- ences to the literature on proposals of change, see Soltau, "The Present Position of the French President," Economica, May, 1921. LEGISLATURES AND BUREAUCRATS 31 with regard to legislation. He has no direct veto power, Germany but when a law has been passed he may, before promulga- tion, order a referendum upon it. In cases of disagree- ment between the Reichstag and Reichsrat he may order a referendum ; and under Article 72 he may promulgate a law that the Reichstag and Reichsrat have declared urgent even if a third of the Reichstag has demanded that the promulgation be deferred in order to allow a referendum. The President, moreover, has the right to dissolve the Reichstag, although this is not the only way in which dis- solution may be effected. But the President's power in this regard may be a very material factor in preventing such frequent Cabinet changes as occur in France; for the authority to dissolve the Reichstag, coupled with the discretion that he has with regard to a referendum, will probably give the German President a dominating position with respect to the responsibility of the Cabinet to the Reichstag. In Austria the President appears to have much Austria less authority, and the general adjustment of relationships is such that ministries will probably not enjoy great sta- bility. Poland's President, on the other hand, more nearly re- Poland sembles the French executive. He has no right of veto, nor may he, like the President of France, initiate legisla- tion and demand a reconsideration of a law to which he objects. 1 There is ministerial responsibility, but the power of dissolution is much more limited than in Ger- many. The Assembly (Sejrti) may dissolve itself by a two-thirds majority vote; or it may be dissolved by the President with the consent of three-fifths of the statutory number of members of the Senate, which is dissolved at the same time (Article 26). This penalty which the Senate must suffer if it exercises its prerogative may be an effec- tual deterrent. It seems likely, therefore, that these con- stitutional adjustments in Poland will allow a legislative Government and Politics of France, p. 44 (Yonkers, 1920). 32 NEW CONSTITUTIONS OF EUROPE Czechoslo- vakia Esthonia dominance over the ministry similar to that which prevails in France. In Czechoslovakia the advantage is with the executive. The President is the strongest executive of any of the new states. He may dissolve the Chamber of Deputies, and he also appoints and dismisses the ministers, who, however, are responsible to the Chamber. His powers of veto and of patronage, together with this power of dissolu- tion, are likely to constitute an adequate protection of the Cabinet against the caprice of the legislature. As has been mentioned, however, the most novel ar- rangements are found in Esthonia and the German states. Esthonia has the simplest of the new constitutions a unicameral legislature with a collegial executive responsi- ble to it, and with the initiative and referendum to deter- mine conflicts between the two branches. The Govern- ment is elected by the legislature, not necessarily from among its own members, and must resign when a vote of no-confidence is passed. The legislative term is three years, and dissolution before the end of this period may take place only by the action of the people. Article 32 of the constitution provides that "if the people reject a law passed by the State Assembly or accept a law rejected by the Assembly, new elections of the State Assembly shall be proclaimed, these elections to take place not later than seventy-five days after the plebiscite." In other words: If non-promulgation is carried, a vote of no-confidence is thus carried in the electoral body against the Assembly, which is ipso facto dissolved. The initiative procedure demands similarly 25,000 electors. They submit a request that a new law shall be enacted or an old one cancelled or amended. The request, in the form of an elaborated draft, goes to the Assembly, and the Assembly either passes the draft, in which case it acquires the force of a law, or rejects it. If rejected the draft is submitted to a plebiscite, and if it is carried again the Assembly is dissolved. It is thus the duty of the Assembly, when the draft comes before it, to gauge the popular feeling, and act in accordance with it. If, having gauged it, the Assembly defies it, or if the Assembly gauges it wrongly, the Assembly is judged an unworthy instru- ment of the popular will and dissolution is justified. Dissolu- tion is thus parallel to the Government's compulsory resignation after a vote of no-confidence has been passed, and the control of the Assembly by the people is analogous to the control of the Government by the Assembly. In this very simple con- trol-system a President is out of place. To fit him into the system would require a further elaboration, which, by confusing the ordinary citizen, would weaken his actual grip on legislation, and a President is therefore dispensed with, his routine duties being part of the heavy burden borne by the Riigiwanem (Government). 1 Prussia's constitutional arrangements, which with minor differences are found in most of the other members of the German Reich, provide for the Swiss collegial exe- cutive; but they seek to approach Great Britain in allow- ing an adequate power of dissolution as a complement to ministerial responsibility. Dissolution may be effected in any one of three ways : by a committee consisting of the Minister President, the President of the Landtag, and President of the Staatsrat; by a referendum initiated by the people or by the Staatsrat; or by a decision of the Landtag itself. This gesture of self-abnegation will probably be made only when the Landtag is reasonably confident of its support in the country or when it sees that dissolution is to be forced upon it by one of the other available methods. But the ability of the Minister President to threaten dis- solution if he can secure the cooperation of one of the legislative presidents seems likely to make for a measure of ministerial stability. 2 1 R. T. Clark, "The Constitution of Esthonia," Journal of Comparative Legis- lation and International Law, Third Series, V(M. Ill, p. 249 (October, 1921). It may be pointed out that, while provision is made for interim ministers when members of the Government resign (Article 59), the Government apparently perishes with the Assembly if the latter is dissolved as the result of a plebiscite. Some amendment of the constitution would seem to be necessary . 'See Redslob,"La constitution prussienne," Revue du droit public et de la science politigue, Vol. XXXVIII, p. 192 (Avril-Mai-Juin, 1921). Prussia and the other German states 34 NEW CONSTITUTIONS OF EUROPE Legislative control during parliamen- tary recesses In Czechoslo- vakia All of the new constitutions devote some attention to the problem of legislative control of the administration. Questions and interpellations addressed to the ministers are provided for, and parliamentary commissions are created on the model of the French commissions to exer- cise a day -by-day control of the executive. 1 "Private members, like Governments," it has been said with par- ticular reference to England, "have all got legislation on the brain and think that the primary business of Parlia- ment is to legislate, whereas in fact it is to look after the administration of existing laws so well that no new laws or very few are necessary." 2 Cabinet responsibility, in- terpellations that lead to publicity, and commissions, either permanent or for particular investigations, are the expedients that governments have usually used for the supervision of the administrative authorities. For the most part, however, they are expedients that operate only while the legislature is in session. It is interesting to note, therefore, that the new governments provide for a con- tinuance of this control during parliamentary recesses. As a commentator on the Czechoslovak constitution says: The democratic spirit of our constitution is likewise shown in Article 54 of the Charter of the Constitution. This paragraph provides for the setting up of a permanent Committee two- thirds of the members of which are taken from the House of Deputies and one-third from the Senate which shall take the place of the National Assembly when the latter is unable to sit. Governmental and executive authority is thus, in principle, devoid of such power as was possessed, for example, by the Government of the former Austrian Empire in virtue of the notorious Article XIV of the law relating to the representation of the Empire. The Charter of the Constitution does not per- 1 See Willoughby and Rogers, op. eft., pp. 215, 251. "A Student of Politics" in the London Times, April 17, 1920. Mr. C. D. Burns has called attention to the fact (noted by the Temps, April 5, 1920) that of thirty-six sittings of the French Chamber before April 5, 1920, nineteen were devoted to " interpellations " as against seventeen to legislation. Government and Industry, p. 62 (London, 1921). LEGISLATURES AND BUREAUCRATS 35 mil the Government of our state to remain for one moment without the control nor yet the aid of the legislative body. 1 A similar committee is provided for in the German In constitution. It was formed on the model of a committee Germany already in existence in the Grand-Duchy of Baden before the revolution. Its purpose is to safeguard the right of popular representation against the Cabinet when the Reichstag is not in session. Monarchical traditions of an executive exercising extensive ordinance-making powers give warrant for precautions of this kind. (The emascula- tion of the executive authority under early American constitutions may be pertinently recalled.) When the German constitution was being framed such a committee "was the subject of much lively opposition. Some held that the Cabinet, so long as it enjoyed the confidence of the Reichstag, did not require a special organ of surveil- lance. This committee, its opponents went on, was only an application of the conception that assumed an opposi- tion between the Cabinet and popular representation. It was incompatible, therefore, with the principle of parlia- mentarism that rests on a harmony of the Cabinet and the Parliament. But the majority of the Constituent Assembly held, on the contrary, that this committee would corre- spond fully in character to the Reichstag as an organ of control, and would be consistent with the confidence and the good will on which the Cabinet depends." 2 In Prussia, In Prussia also, there is a permanent commission to represent the legislature in the intervals between sessions; the ministers will thus never be without some measure of parliamentary control. 3 Attention should also be directed to the attempt that TOoetzl, The Constitution of the Czechoslovak Republic, p. 15 (Prague, 1920). For the text of the Austrian article referred to, see Willoughby and Rogers, op. dt., p. 377 n. *Ren6 Brunet, The New German Constitution, p. 152 (New York, 1922). 3 See Redslob, op. cit., p. 193. 36 NEW CONSTITUTIONS OF EUROPE Democrati- zation of administra- tion The new states try experiments has been made in some of the new states to democratize the public administration. Thus, the Czechoslovak con- stitution declares that the "civic element" shall be as far as possible represented in the subordinate offices of state. "The law creating special administrative bodies for the counties and the districts represents an effort to put this constitutional principle into practice. It is a bold step toward reorganizing public administration in a more democratic direction. The civic element thus par- ticipates in all political administration (interior) in the subordinate offices (ministries are an exception). This participation is particularly conspicuous in the organiza- tion of the administrative Courts . . . where it is a matter of the protection of the rights and interests of citizens." 1 The results of these several experiments to create new adjustments as between executives, legislatures, and peoples will be of great interest to the student of compara- tive politics. In some cases, no doubt, judgment will have to be suspended for the reason that popular government is being tried for the first time by peoples who have had little or no experience in governing themselves. Political incapacity will probably be responsible for some criticism of governmental arrangements that are theoretically sound. On the other hand, constitutional adjustments that appear to be faulty and cumbersome will not inevi- tably result in political mismanagement. The laws, as Burke said, reach but a little way. Every government is a government of men as well as of laws. No matter how 'Hoetzl, op. cit., pp. 16, 17. As another writer has said : " To the many political cries that disturb the, in any case, uncertain tranquillity of the Continent a new one has now been added, starting from Central Europe and making itself heard to the west, south, and north the cry for democratization of administration. By this is meant a shifting of the distribution of power in every branch of public administration. Administration is ultimately to rest in the hands of the people, not in the hands of the authorities in the State and Commune. The authorities hitherto in charge are to be degraded to the position of mere advisers or even of servants. They no longer give commands, they carry out the commands of the people. The people no longer wishes to be governed, but to govern itself." Carl Brockchausen, "Administrative Democracy: A Continental Aspiration," The New Europe, May 20, 1920. LEGISLATURES AND BUREAUCRATS 37 a government is constituted, much depends on the wisdom and discretion of those who have it in charge. The rela- tion between executive and legislature is important but not decisive. 1 The framers of the new constitutions of Europe have The test sought to secure arrangements that would be flexible, but not too flexible; that would be sufficiently rigid, but not too rigid. The supreme test will be what these govern- ments actually do. The chief concern of the new states is for legislation based on sound principles of distributive justice. is fact finds illustration in two recent books on constitutional changes in the United States and England. An American writer, William MacDonald, in a tractate entitled A New Con- stitution for a New America (New York, 1921), urges the adoption of Cabinet government in the United States. The argument pays no attention to the fact that in England and France the present phase of Cabinet responsibility can be objected to just as forcibly as the author objects to the separation of powers in the United States, and that in the United States public administration could be improved and Congress made more efficient and responsible without laying im- pious hands on the ark of the covenant. In England Sidney and Beatrice Webb, in A Constitution for the Socialist Commonwealth of Great Britain (London, 1921), have written of their own insti- tutions in much the same way that Mr. MacDonald has written of America. They are, however, more concerned with economics than with politics. National- ized industries and services, district councils, works committees, the reorganiza- tion of local government, industrial and public services by the local authorities, the cooperative movement and other voluntary associations of consumers, the trade-union movement and other vocational organizations these are the things that the Webbs stress. However people may differ in their conceptions of what constitutes the "common good," it is probably a fact that vocational ethics and technique and the spirit and efficiency of the public service are of more impor- tance to the average man than the constitutional relation between the executive and the legislature. Progress is possible whatever may be the finical adjustment of governing agencies. Most new legislatures are bicameral Second chambers are also secondary CHAPTER III SECONDARY CHAMBERS ONE of the most interesting features of the new constitu- tions of Europe is found in the provisions relating to second chambers. Most of the legislatures are bicameral. Only Finland, Esthonia, and Jugoslavia have been bold enough to dispense with the time-honored check of an upper and usually less popular legislative body. 1 Various methods are employed for electing the members of these second chambers, and their powers and relative positions in the several schemes of government are by no means identical. But on one point of principle they prac- tically all agree: these upper chambers, far from being superior to the lower chambers, as was, for example, the Bundesrat of the former German Empire, are not even coordinate with them. They are placed in a distinctly sub- ordinate position. They are not only second but also secondary chambers. For the constitutional distribution of power is such that, while they may impede and delay, they cannot ultimately withstand the determined will of the lower and more popular body. Deadlocks are care- J Sixteen of the Swiss cantons, sixteen of the smaller German states (before the revolution), and six of the provinces of Canada are cited as adherents of the uni- cameral principle. Experiments in Bulgaria, Montenegro, and Norway, and a few Latin-American states should also be mentioned. H. W. V. Temperley, Sen- ates and Upper Chambers, p. 9 (London, 1910). The recent action of the Queensland Government in abolishing its legislative council attracted some attention. The Council, the Prime Minister of Queens- land said, "was the home of reactionary interests. Few will mourn its fate, and few hope for its resurrection." The abolition of the Council was of some interest to the English House of Lords which adopted a motion calling on the Government for all the papers relating to the Royal Assent in the matter. Vis- count Chelmsford, a former Governor of Queensland, said he did not "suggest that the British Parliament should interfere in any way with the self-governing power of the Dominions, but in a matter of such importance it would be well that information should be given." The London Times, March 29, 1922. 38 SECONDARY CHAMBERS 39 fully guarded against. If the upper house refuses consent to a bill, repassage by the lower house or ratification by the voters upon a referendum is commonly sufficient to enact the rejected proposal into law. It is unnecessary to digest and compare the constitu- tional provisions relating to these second chambers. Ref- erence to the texts of the several constitutions will disclose their family resemblance and their individual differences . Until the debates and documentary materials of the va- rious constituent assemblies are available, the motives which determined their special characteristics will be un- certain. On the "face of the returns," however, one or two points seem fairly certain. In the first place, the upper chambers in such countries as Germany and Austria were doubtless, to an extent at least, adjuvant parts of the federal scheme that was adopted; the attempt was made to provide in the second chamber representation of the component states as political entities. In the second place, speaking generally, the creation of second chambers was doubtless not due to opposition to the "democratic idea." So far as appearances go, most of these constitu- tions are ultra-democratic; and if two houses are desired merely in the interest of deliberateness and delay, it is quite as easy, though perhaps not as reasonable, to create a popular upper house as a popular lower house. The motive, therefore, for the establishment of upper cham- bers was probably not anti-democratic. Apart from spe- cial considerations, it was no doubt a matter of habit, of conscious or unconscious regard for the habits of others, and of genuine belief in the value of the check that is afforded by requiring that identical action shall be taken by two separated and quasi-independent groups of repre- sentatives. In the third place, whatever may have been the reasons for the adoption of the bicameral principle, the reason for the subordination of upper chambers to lower chambers Reasons for second chambers 40 NEW CONSTITUTIONS OF EUROPE Reason for subordina- tion of second chambers Illustrated by House of Lords is fairly apparent. All of these constitutions provide for governments under which the ministry is responsible to parliament. A ministry responsible to two coequal assemblies is a cumbersome and well-nigh unworkable institution. Ministerial responsibility implies a unitary system of representative control. A ministry cannot serve two masters. Witness the experience of France or of Italy or of any other country in which the upper chamber had been placed in a position in which it could interfere in the relation of responsibility between the min- istry and the lower chamber. The result has always been a weakening of the foundations of the system. In Eng- land, where the system originated, the Ministry has never been regarded as in any respect responsible to the Lords. Nevertheless, before 1911 the House of Lords was in legal theory a coordinate branch of parliament. 1 In case of disagreement with the Commons and the Ministry, it could, by actually asserting its coequality of powers, ut- terly destroy the effectiveness of the system. The Minis- try might still be responsible to the Commons; but what purpose could such responsibility serve, if the machinery of its operation could be suddenly stopped by the action of a body that had no part whatever in the scheme of re- sponsible relationships? A resignation of the Ministry or a dissolution of the Commons would be futile as against the legal powers of the Lords to obstruct. This was the situation that developed in England in 1909; and as a result the House of Lords was by the Parliament Act of 1911 placed definitely in a position of legal subordination to the Commons in a position in which it could cause de- lay but not defeat. This act was a clear admission of the difficulty, not to say impossibility, of satisfactorily com- bining a scheme of ministerial responsibility with a scheme ir There was some dispute as to the "constitutional" competence of the Lords to alter money bills. Moreover, in case of recalcitrance there was, of course, the more or less remote possibility of the Lords being whipped into line by the creation of new peers a power which lay in the hands of the Ministry. SECONDARY CHAMBERS 41 of coequal legislative chambers. Even with an upper chamber that is periodically renewed by election or in some other manner, the possibility of a deadlock would remain. And in the face of a deadlock between the chambers, ministerial responsibility would simply fail to function. Those who drafted the new constitutions of Europe were probably not ignorant of the institutional history of par- liamentary government in other countries. They must have known the difficulties that second chambers had caused. Whether or not they actually borrowed from the British Parliament Act of 1911, their schemes for control- ling second chambers were directed toward similar ends. It is of interest, therefore, to study the schemes that are provided in these new constitutions in the light of the situation that prevails in England as well as in the light of current discussions and proposals for further "reform" of the House of Lords. For the Parliament Act of 1911 was admittedly a temporary measure. 1 Prior to 1832 England was really ruled by an oligarchy of landowners. The House of Lords was powerful; but it did not insist on legislative primacy or even equality. Its control was exerted more indirectly but none the less effectively. The great offices of state were held by peers, and a large proportion of the members of the House of Commons were nominated by the noble landowners. 1 In the jockeying that took place in the first weeks of 1922 over the advisabil- ity of a general election, the Conservative section of Mr. Lloyd George's coali- tion interposed objections which were based very largely on this matter of the Parliament Act. Mr. Lloyd George was lukewarm. His instinct is probably against a strong second chamber as a bulwark of conservatism. He may feel also that he would be better off under existing circumstances if the political situation made him desire to sponsor a program of radical legislation com- parable to that of 1909. There is, furthermore, the question of the position of the executive in a truly bicameral system which is discussed below. "An English Liberal" outlined the issue as follows: " In particular they [the Conservatives] demand the reform of the House of Lords, which Mr. George included in his election compact with the Tories in 1918. Reform of the House of Lords is a thing which the real Conservatives care very much about. It means, no doubt, the abandonment of the hereditary principle and the substitution of a comparatively democratic House, but this Parliament Act of 1911 Position of the Lords 1832-1886 NEW CONSTITUTIONS OF EUROPE Reasons for non- interference with the Lords From 1832 to 1886, the suffrage was gradually extended and legal democracy arrived. Nevertheless, popular dis- content manifested itself in Chartism and Trade Unionism; for the political power of the legal democracy remained where it had been formerly, or else was so manipulated that it was nugatory. In the struggle for political su- premacy between the landed aristocracy and the new industrial plutocracy, the second chamber lived serenely on. There was, indeed, for several reasons, little or no discussion of its composition and constitutional authority. In the first place, "the attacking force of the new plu- tocracy was led by a group of the greatest landowning magnates, the Whigs; who, never doctrinaire in their Lib- eralism, and proud of their order (for they were always the most exclusive of aristocrats), were, on the one hand, loath to overthrow the House that had once been their stronghold, and were, on the other hand, able to make the political reconstruction easier for their fellow peers to accept." In the second place, the House of Lords "ac- cepted the guidance of leaders who recognized when defeat must be admitted." There was, as a consequence, no real second chamber at all; the Lords simply did not House will be conservative in character and its reconstitution will be accom- panied, in the Conservative plan, by the abolition of the Parliament Act. Now the Parliament Act is the guarantee to any Liberal or Labor government and it is the possibility of a Labor government that the Conservatives keep in view that they can get any large piece of reform substantially unchanged through the House of Lords, for any bill sent up by the House of Commons can only be re- jected twice with effect by the Lords; at its third appearance, whether accepted or rejected by them, it goes on the statute book. Really, therefore, the Tory party through Sir George Younger are asking that the Parliament Act, the hope of the Labor party, should be repealed before the present government go to a general election." "Lloyd George and the Ides of March," The New Republic, February 1, 1922. The King, in his speech opening Parliament on February 7, 1922, said: "Pro- posals will be submitted to you for the reform of the House of Lords and for the adjustment of differences between the two Houses." Substantially the same pledge was given the previous year: "My Ministers further trust that the work of the Committee now examining the question of the Reform of the Second Chamber will be finished in time to permit of proposals being submitted to Parliament during the course of the present Session." February 15, 1921. The Committee referred to was presumably within the Cabinet, for the Bryce Report of 1918 had already been published, and no announcement had been made of the appointment of any other body to consider the problem. SECONDARY CHAMBERS 43 assert their legal competence. There was "no check or effective criticism on the measures of one party, and only vexatious, timid, and partisan delays on the measures of the other. The second chamber seemed to be so weak as to be scarcely worth abolishing, and most men thought it was doomed to be merely one of those picturesque and useless forms with which the British system abounds." And, finally, it has been suggested that the commercial plutocrats of the Liberal party "had their full share of the characteristic British virtue of snobbery, and longed to become members of a class which they had for two genera- tions been attacking." 1 After 1886 the House of Lords rejected certain Liberal The parlia- measures, but its own composition and powers were not ment act brought into serious question. During the Unionist ascend- ancy there was, of course, no trouble; and the issue was not drawn until the Liberals came into power in 1906. 2 Thereafter the issue was joined and reached its climax in 1909-1911. As has been said, however, the Parliament Act of 1911 was a temporary expedient. Its preamble de- clared that a second chamber would be "constituted on a popular instead of hereditary basis"; and Mr. Asquith in a debate in the House of Commons declared that the pledge was a "debt of honor." 3 The war intervened before the Liberals could proceed 'Ramsay Muir, Peers and Bureaucrats, pp. 102-104 (London, 1910). *"In 1869 Lord Russell carried to a second reading a Life-Peerage Bill. In 1884 Lord Rosebery presided over a Select Committee which recommended certain changes in regard to the Scotch and Irish Peers. The same statesman tried to interest the Lords in larger schemes in 1884, and again in 1888, but on both occasions in vain. Lord Salisbury, in 1888, did actually embody certain definite proposals in a Bill which was read twice in the House of Lords, but he did not persevere, and thus the Tory party lost an opportunity of ' reform from within,' which will never recur." In December, 1908, a Committee headed by Lord Rosebery made recommendations, but they were very conservative and in any event it was too late for them to receive a hearing. J. A. R. Marriott, "The Problem of a Second Chamber," Edinburgh Review, July, 1917. MDn the issues raised by the Parliament Act, see McKechnie, Reform of the House of Lords (London, 1909); Lord Rosebery, The Reform of the House of Lords (London, 1910); Lord Selborne, The State and the Citizen (London, 1913); and "Second Chamber Supplement," The New Statesman, February 7, 1914. 44 NEW CONSTITUTIONS OF EUROPE The Second Chamber Conference of 1917 Opposition to Bryce Conference Report with their program. Nothing was done until August 25, 1917, when the Prime Minister appointed a Second Chamber Conference, composed of peers and commoners, under the chairmanship of Lord Bryce. The members were so far from unanimous that the report took the form of a letter from Lord Bryce to the Prime Minister, arguing at some length concerning the kind of second chamber that England should have and making recommendations as to its composition. 1 Democracy was so diluted in the scheme proposed that the Coalition Government hesitated to press for reform within the limits indicated by the Bryce Conference. The Unionists, however, would doubtless have welcomed such a pis alter in order to have a line of defense against a possible Labor majority in the Commons. The powers that Lord Bryce proposed for the second chamber would do much to nullify the victory won by the Commons in the 1909-1911 struggle. Since that time there has cer- tainly been no retrogression in the democratic movement in Great Britain. If the war seemed to result in some in- crease of prestige for the Lords, 2 this was due not to any change in the character or position of the upper house, but to a relative decline in the prestige of the Commons. 3 letter is reprinted below, Appendix V. 2 "For long years Liberals have been fighting for a thoroughly representative system and for imposing restraint upon the reactionary tendencies of the Upper House. And having accomplished then' aim, they find that they have to turn, for the experience of whatever remnant of enlightened and liberal-minded opinion there remains, from the House of Commons to the House of Lords. There at least an occasional weighty voice is heard in protest against the follies of the government. There at least is some reminiscence of the spirit of inde- pendent criticism, which has certainly vanished from a House of Commons that exists simply to register the decrees of a ministry." A. G. Gardiner, "The Twilight of Parliament," The Atlantic Monthly, August, 1921. 3 Lord Esher quotes C. F. G. Masterman on the condition of England: "The rather ignoble r&le played by the House of Lords during the past decade reveals its weaknesses. It will allow changes which it profoundly dislikes when com- pelled by fear. It will resist changes in action when that fear is controlled. It will altogether abandon the effort to initiate changes where change is essential. It can do little but modify, check, or destroy other men's handiwork. It has no single constructive suggestion of its own to offer to a people confronting dim- SECONDARY CHAMBERS 45 The wide extension of the suffrage under the Representa- tion of the People Act of 1918 assuredly does not lend aid and comfort to those who would find place for a powerful upper chamber, "different" but none the less undemo- cratic. Even so, Lord Bryce's proposals are of great interest; and they are none the less significant from the point of view of the alternatives that were passed over. For example, nomination for life, as in Canada and Italy, was rejected; so likewise was indirect election by local bodies. 1 The Bryce report suggested the recruitment of the second The Bryce chamber by a mixed process of derivation and cooptation. proposal The greater part of the members would be chosen by, though not from, the House of Commons, divided into geographical groups. The smaller part would be named by a joint committee of the two houses, in the fixed pro- portions of those great interests from which the House of Lords originally sprang: the Church and the Land. To this body, which would probably consist of aged or middle- aged members, predominantly conservative, would be given material powers, but not a veto on acts passed cult problems and harassed by the obligations of necessary reorganizations. It can neither breed leaders nor ideas." But, says Lord Esher, "what more could the most exacting reformer demand from a Second Chamber?" The Influence of King Edward and Other Essays, pp. 61-62 (London, 1915). 'The proposal of indirect election, says Professor Ramsay Muir, "is radically vicious. County Councils were not designed as electoral but as administrative bodies. It is highly important that, so far as possible, their members should be elected solely on the ground of their fitness for their work, and not on the ground of their opinions on national politics, which can have nothing to do with their work. Hitherto party politics have been largely kept out of these elections, or, at the most, have only been a secondary consideration. . . . The electoral function of the County Council would come to outweigh the ad- ministrative. . . . The candidates of each side for the Second Chamber would be nominated by the party caucuses, and the candidates for the County Council would be required to pledge themselves beforehand to vote for A or B. Thus the malign influence of the party caucus will be still further extended; the partisan character of the Second Chamber will be still more accentuated; and the administrative efficiency of a series of important public bodies will be seriously impaired. . . . And what applies to County Councils applies equally to all other methods of indirect election; for in a country dominated by party divi- sions any body which has an electoral function imposed upon it will lie open to the same dangers." Peers and Bureaucrats, pp. 181-183. 46 NEW CONSTITUTIONS OF EUROPE The Standing Conference Committee Criticism by the London Nation by the Commons. Disagreements between the two houses would be referred to a Standing Conference Committee composed of sixty members chosen in equal proportions from the two houses. This Committee would sit in secret and would make its reports to each of the houses. A proposal from the Committee must be rejected or ac- cepted without amendment. If one chamber accepted and the other rejected a bill, the final decision would rest with the Committee, acting by a majority of three. In other words, as Lord Haldane expressed it in the House of Lords debate, the Bryce scheme "proposed to get rid of the Parliament Act and to substitute for it power for the House of Commons to pass whatever measures it desired, provided it could obtain a majority of three on the Stand- ing Joint Committee of the two Houses." 1 Reference to the two houses in joint and open session, or a referendum on the measure, or the machinery provided in some of the new constitutions were all rejected in favor of the device of the so-called Free Conference. The debate in the House of Lords in March, 1921, showed great solicitude for a virile second chamber but no great enthusiasm for the Bryce report. The chief critics of the report are those whom the House of Lords fears. For ex- ample, the London Nation said : Now we cannot imagine the country emerging from the war and finding the ultimate control of legislation given over to a small body of elderly Notables, elected and derived, peers and commoners, clerical and lay. We cannot even see either House surrendering its forces into such hands. Whom does the Bryce scheme satisfy? Not the Conservatives, who prefer the inde- pendent dignity of the House of Lords to a Chamber owing its greater proportion to the House of Commons. Not, of course, the Single Chamber men, who reject the whole theory of the need of a bi-cameral "check" to democracy. Not the Radicals, who would sweep away hereditary peers and legislative bishops, and are indisposed to give a casting vote in legislation to any Parliamentary Debates (Lords), Fifth Series, Vol. XLIV, col. 706 (March 21, 1921). SECONDARY CHAMBERS 47 body founded on indirect election and nomination. The device of the Free Conference is not in itself an objectionable one, and Lord Bryce and his colleagues have come to the sound view of making the Second Chamber derive, in the main, from the First. Their mistake has been to create too large a body, and to endow it with undue powers, which in turn bring it into conflict with the representative principle. A Second Chamber which is the creature of the First cannot even indirectly aspire to become its master. If a Second Chamber is deemed necessary, we see no overwhelming objection to giving it a purely consulting and conciliatory function. But we see no reason for endowing it with votes, or if votes are conferred upon it, for creating a larger body than 100 or 120 members, chosen mainly from the House of Commons, but on a proportional system. Such a Second Chamber would never be able to upset the choice of the people, for under the method of proportional representation, the major- ity in a Joint Session would almost always be of the same party as the majority in the House of Commons, though the strength of that majority might be reduced. 1 Therefore the element of conflict is eliminated. Under the Bryce scheme the conflict remains, but is masked by the intervention of the Joint Com- mittee. This body will move inevitably towards compromises, and the House of Commons, deprived of the power of reasserting its full original will, is automatically reduced to the alternative of submission or a total shipwreck of its plans, maybe of the chief work of a session or the issue of a great electoral conflict. J In its issue of July 18, 1914, The Nation suggested the following plan for the reform of the House of Lords: "We would, therefore, invite the Government and the Liberal Party to follow the general example of modern States, and to set up a small Second Chamber, sharply contrasted with the mere undistinguished volume of the House of Lords. This would conveniently consist of 100 members, elected by, but not from, the House of Commons. The latter course would lower the new Chamber to the level of a Committee of the Commons, and might therefore be treated as an eva- sion of the preamble of the Parliament Act. Such a Senate would be a Rump Parliament rather than a fresh organ of political thought and action, and would therefore be almost useless for the special purposes of revision and reconsidera- tion to which we would invite it. The Second Chamber would properly include the Lord Chancellor, the ex-Lord Chancellor, and the Law Lords as ex qfficio members, and its non-partisan character would free the latter class from the repressed and shadowed existence which they lead in the House of Lords. An element of variety and distinction could also be secured by adding to the 100 elected members a small quota of nominated Senators, chosen either by the Executive or by the Chamber itself. But the number of elected, nominated, and ex officio members should not exceed 120." Under a system that provided for a joint session "between a Second Chamber so constituted and the House of Commons, the elected majority in the latter House could only have been once disturbed since 1837. This was in 1847, when the Liberals had only a majority of one in the Commons. Under this scheme it would have been turned into a Conservative majority of six an exception which may easily be held to prove the rule." Proposed Chamber is too large and powerful 48 NEW CONSTITUTIONS OF EUROPE The Bryce report seeks analogies Even finance, the historic right of the Commons, seems to us to be held under the Bryce scheme by a single strand. The Conference may attack it in detail, eviscerate it, or truncate it. This is to ignore the effort of 1906 to 1914 to reintegrate the democratic power and secure it against future encroachments by the Lords. Not to such issues will the after-war nation be touched, when once it resumes the broken thread of its political life." 1 In the Bryce report constitutional theory and practice in other countries are cited as showing that only a few un- important governments, by taking the risk of a unicameral legislature, fail to allow an appeal from "Philip drunk to Philip sober." And this argument for the check of one house against the other is reinforced by reference to the absence in England of the check of a written constitution. As the Earl of Selborne recently said in the House of Lords: "In this country alone of all civilized countries could a minority enact these things [the revolutionary program of a Labor Government] under the forms of the Constitution and against the wish of the majority. Here alone can the fundamental basis of society or the whole of our Constitution be changed by the same process as is applied to the passage of a Drainage Act." 2 These considerations, however, overlook, it would seem, funda- mental differences in the whole legislative process in Eng- land as compared with most other countries. In the l The Nation (London), May 4, 1918. ^Parliamentary Debates (Lords), Fifth Series, Vol. XLIV, col. 694 (March 21, 1921). This debate was of great interest, as the following excerpts show: The Earl of Selborne: "I want to put the matter before your Lordships and the country in the bluntest possible form, and I do not think that I am guilty of the least exaggeration when I say that all that has been done in Russia to destroy the constitution, the liberty, and the property of the people, could be done in England under the forms of the Parliament Act, some of it in one session, all of it within the space of a little more than two years." Viscount Bryce: "The problem is a double one. It is a problem of the powers which have to be given to the reconstituted House, and of the method of con- stituting that House. These two questions are closely interconnected. Lord Selborne observed that there ought to be large powers. I agree with him in thinking that there is no use in having a Second Chamber unless you give it substantial powers; but it is to be remembered that the more powers you give, the more popular must be the composition of the Chamber. You will not sue- SECONDARY CHAMBERS 49 United States, for example, there is a deplorable lack of centralization of control over the process of legislation. Depending upon the strength of his personality and his party position, the President exercises a more or less ex- ternal, but on occasion none the less powerful, influence. As between the two coequal houses, at any rate, he is, in important law-making, the principal focus of unity that exists. Moreover, strange as it may seem, although the constitution vests in him "the executive power of the United States," it is chiefly upon his success in legislative matters that he is held to accountability by the people. Apart from this changeful and somewhat extra-constitu- tional control of the President, there is in neither house of Congress any large degree of power and responsibility with respect to a program of legislation. Indeed, one can scarcely imagine legislative processes that would offer greater contrast than those of England and the United States. The methods by which and the conditions under Defect in analogy of United States ceed in having any considerable powers allotted to a Second Chamber unless there is a considerable popular element in the composition of the Chamber, in order to make sure that it represents adequately what I may call the best delib- erate, popular sentiment. . . . " . . . a Second Chamber which is to be successful and is to win the con- fidence of the country must not be a Party body. It should not be a body com- posed in such a way as to contain a permanent majority governed by Party feeling or subservient to Party organization. It must be a body in which every Party can have representation and every type of view can be freely and fairly stated. Lastly, a Second Chamber ought to possess, if possible, the largest measure of moral authority. By moral authority I mean besides the legal authority which may be vested in it, be that greater or smaller, the influence exerted on the mind of the nation which comes from the intellectual authority of the persons who compose the Chamber, from their experience, from their record in public life and from the respect which their characters and their ex- perience inspire. If an Assembly possesses that moral authority in large meas- ure, its legal powers need not be quite so extensive as they might otherwise have to be. Viscount Haldane: If "the Government were to propose a measure for enlarg- ing the powers of the House of Lords and correspondingly curtailing the powers of their own representatives, what would be the effect? I think the effect would be that you would, at last, have one among a number of things which would stir that democracy, and which would bring about the very state of things which you want to avoid. The one thing about which the Englishman is really sensi- tive is the violation of those traditional usages, which in a vague way he under- stands, and which he always has more or less in his mind. . . . "If you want to bring forward a Labour majority I know of no better plan than that of proposing to put restrictions on the House of Commons." Defect in analogy of France Role of the French Senate 50 NEW CONSTITUTIONS OF EUROPE which legislative proposals are introduced into and carried through the American House of Representatives are so utterly different from those obtaining in the House of Commons that arguments for the need of a second cham- ber in the United States can be applied to the English situation only by ignoring striking differences of impor- tance. Or take the situation in France, where the constitutional system more nearly approximates that of England. The French Senate acts as frequently in support of the Minis- try as against it; the Ministry sometimes uses the Senate to restore appropriations refused by the chambers. Under the operation of Lord Bryce's scheme, such an eventuality in England would be scarcely thinkable. The French Ministry occupies no such position toward the Chamber of Deputies as does the British Ministry toward the House of Commons, for the simple reason that it cannot dissolve the Chamber without the consent of the Senate; which means that the upper chamber, not the Ministry, has the power of dissolution. This is a point of no mean signifi- cance. The Bryce report does not argue for a second chamber vested with power to interpose itself between the Ministry and the lower chamber. It does not contem- plate an emasculated or hair-trigger Ministry that may be hurried out of office over night, because, forsooth, it lacks the power to seek its own justification by appealing to the electors to turn the recalcitrant chamber out. Such an arrangement cannot fail to weaken the Ministry, to strengthen both houses as against the Ministry, to approxi- mate the system of fixed terms for legislative bodies, to decentralize responsibility in a word, to dilute the es- sential virtues of cabinet responsibility and parliamen- tary government. It may reasonably be argued that the instability of cabi- net government in France is due to the existence of a second chamber vested with this power over dissolution. SECONDARY CHAMBERS 51 But it certainly cannot be argued that a second chamber that is not vested with such power is necessary simply because France has a second chamber. The French Senate does not act as a check upon the Deputies; as the case may be, it acts as a check upon, or aid to, a Ministry pitted against the Deputies. It is, in short, a stabilizer of ministerial instability. The multiple party system and the French Senate's failure to exercise its power over dissolution are responsible for the kaleidoscopic changes of cabinets. But it is open to question whether the sanity and wisdom of French law and policy may properly be referred to the check of this second chamber. In any scheme of government the arguments for a second chamber can be tested only by considering the legislative process as a whole. It is not solely a matter of compelling a first chamber to hasten slowly. It is also a matter of how slowly and maturely the lower chamber has in the first instance been forced to proceed. In this connection an English authority on constitutional law has said: This is an aspect of the case which is worth dwelling upon for it goes far to limit the application of the theory that Upper Houses are a check upon hasty legislation. That theory has found expression in the writings of all apologists for a dual legis- lature Montesquieu, Hamilton, Story, Tocqueville, Laboulaye, and Esmein. Now, it is a curious fact not, I believe, hitherto remarked upon that every one of these writers begins with the assumption that the executive and the legislature are separate an assumption which was, and is, true, or approximately true, of the countries with which they were most concerned. They assume that the Lower House has an unrestricted initiative in legislation, independently of the Ministry, and that it is the Ministry, quite as much as the people, which required to be pro- tected against the Lower House. An unrestricted initiative calls for an unrestricted veto, and a chamber which, without the sense of collective responsibility possessed by a Cabinet, without its continuity of programme, its trained draughtsmanship, its Treasury experts, can initiate legislation and carry it through as, for example, the Lower Houses in France and America do must be subject to an Upper Chamber which may supply these defects. Test of argument for a second chamber The English process of legislation NEW CONSTITUTIONS OF EUROPE Law-making by ministries But with us this unrestricted initiative does not exist, because our executive and legislature are not separate in fact whatever they may be in law. There is what I may call a prior veto upon the legislation of the House of Commons in the responsibility of the Cabinet for legislation and its consequent control of the time of the House, and, believe me, that veto is no inconsiderable check upon the kind of hasty legislation which the Upper Cham- bers of foreign countries are designed to control. A Government Bill is the product of many trained minds: the Parliamentary draughtsman sees that it is dovetailed into the body of existing statute law; the Treasury are called in to consider what charges upon the national revenue it may involve; the departments are consulted to advise what administrative duties it may throw upon them. 1 In continental countries, moreover, ministries have wide powers of collateral legislation which are seldom fully disclosed in the provisions of written constitutions. This tradition will doubtless be continued by the governments of the succession states. In Prussia, a Ministry unable to secure the enactment of a statute could usually reach the same end by an ordinance. 2 The notorious Article 14 of the Austrian constitution 3 gave this power explicitly; but it was a power that was derived almost as effectively by implication from other constitutions. In France, if the Senate is troublesome, the Ministry can frequently resort to a decree which can be challenged only by an ad- ministrative tribunal. What Professor Dicey has called the "rule of law" is not without its importance in connec- tion with the problem of a second chamber. If it is unable to fall back upon administrative legislation, a ministry is 1 J. H. Morgan, The Place of a Second Chamber in the Constitution, pp. 9-10 (London, 1910). Professor Morgan points out that this control is a development of the nineteenth century and that the English constitution copied by foreign countries is that of the eighteenth century. Under this earlier constitution the Lords as frequently supported the Ministry as opposed it. The Ministry could carry on the government independently of the Commons by a civil service which was a fixed, not an annual, charge. And most of the legislation was private bill legislation and not public legislation. *Willoughby and Rogers, op. cit., p. 363. J For the text see ibid., p. 377. The provision is copied in the Japanese con- stitution. SECONDARY CHAMBERS 53 more apt to act with reference to possible support or opposition from the upper house. Such an arrangement is not conducive to responsible government. As Professor Morgan has said: A strong Upper House, in fact, everywhere means either a Strong weak or a subservient executive. The exceptions to this rule second are apparent rather than real. In France, the executive, al- chamber though, as we have seen, possessed of considerable powers of makes weak independent legislation, is singularly weak in the face of the ministry Chamber of Deputies, which, contrary to all English precedent, exercises an initiative in finance independently of the executive. The deputies can, in fact, turn the Cabinet's Finance Bills, like any other Bill, inside out. Not infrequently, therefore, the Cabinet looks to the Senate to support it against the Chamber of Deputies by restoring appropriations and taxes which the latter has omitted or reduced. A very similar condition of affairs prevailed at one time in Prussia. In the German Empire the Upper Chamber not only supports the executive, it is iden- tical with it; so much so, indeed, that Bismarck always treated the demand of the German Liberals for a Cabinet responsible to the Reichstag as absolutely incompatible with the continued existence of the Upper House. If we turn to the English col- onies, we shall find that Upper Houses are only strong in pro- portion as Cabinets are weak the English tradition, now operative for something like fifty years, that a Government which cannot command a majority or secure the passage of its egislation, may dissolve, has not equal force. And Professor Morgan summarizes his conclusion as follows : Whereas in our own country the Government is dependent on Unique the Lower House of the Legislature (the House of Commons), position of in foreign countries it is more often dependent on the Upper House of House, in so far as it is dependent on the legislature at all; and Lords that, therefore, the large powers accorded to the Upper House in those countries are more often used to support the Govern- ment of the day than to oppose it. Now, with us, exactly the reverse is the case, and the problem which confronts us is that of an Upper House able, willing, and determined to bring the Government of the day to a standstill. In that respect our problem is unique, and the pretensions of our Upper House are both higher and more dangerous than those advanced by any other country living under a constitutional system. 1 'Morgan, op. cit., pp. 14-15. Relation of problem of cabinet dominance 54 The English Cabinet is the most powerful and indepen- dent responsible Ministry in the world. It has been able to exert a very complete control over the House of Com- mons. Not the least of its levers has been the possibility that it might order a dissolution. The danger of a strong second chamber in England is that the power of dissolution might be transferred in whole or in part from the Cabinet to the Lords. That would destroy the balance of the con- stitution. There may well be strong arguments in favor of abolishing a fairly uncontrolled cabinet dictatorship, but this may be accomplished by measures short of the creation of a strong second chamber. Cabinet dominance, with the ever- present possibility of emergency action by the House of Commons, has much to commend it in comparison with the possibility of a powerfully reinvigorated upper chamber. The manner in which the bicameral arrangements of the new constitutions will work is, of course, highly con- jectural. 1 Almost without exception, as has been said, the idea of a second chamber equal in strength to the lower, has found little favor. Every effort has been made to avoid the evils indicated in Benjamin Franklin's descrip- tion of a bicameral legislature: "It is a cart with a horse hitched to each end and both pulling in opposite direc- tions." But how effectively the cart will be pulled and in what direction remains to be seen. Professor Morgan ventured to prophesy concerning the workings of the Parliament Act. "I think," he said, "that it will enormously increase the legislative activity of the House of Lords; that, if conscientiously worked, it will give it a prestige of a more practical and less superstitious kind than it has ever enjoyed before." The Lords will be able to transform a Bill and send it back, whereas, the Commons, by the terms of the Parliament Act, only repass the same measure. "During the whole of the statutory two years, the House of Lords will be the centre and focus of all the agitation in the country against the particular Bill, the Areopagus to which every interest affected will look for consideration of its grievance." Op. cit., pp. 21-22. The adjournment of politics during the war and the abandonment of party for coalition government prevent any estimate of the correctness of Professor Morgan's prophecy. The same reasoning would suggest that in the succession states the second chambers, uninfluenced by the necessity of compromise in order to reach an agreement, will be active in amending bills and shifting the responsibility to the lower house or the executive. CHAPTER IV SEGMENTATION AND FEDERATION THE segmentation of Empires and the decisions of the Peace Conference created a number of new small states. This reversal of the apparent tendency of political units to coalesce in great composite organizations is probably of greatest importance in international matters. It is fairly obvious that the fewer the members of the commun- ity of states, the fewer will be the possibilities of friction. International law depends for its validity upon the agree- ment, tacit or otherwise, of sovereign states. Its possibil- ity for growth is lessened by an increase in the number of states whose agreement is necessary. Divide et impera is not a maxim appropriate to the end of world organi- zation. There is, indeed, something of inconsistency between increasing the membership of the international community and at the same time promoting a League of Nations and diplomacy by conference. Treitschke ob- jected to small states on the ground that " weakness is the most reprehensible and the most contemptible" of political sins; but apart from this callous count in the indictment, serious objections may be raised. Belgium and Serbia are never-to-be-forgotten examples of the opportunities that the small states offer for aggression. Economic exploitation is more insidious, more frequent, and in many cases just as disastrous as avowed political conquest. The new states in Europe will be politically and economi- cally jealous of one another. 1 For economic purposes 1 " Now that they [the little nations] have achieved great success, dazzling suc- cess, almost blinding success, there is a real danger of their emulating the faults of great countries. . . . The spirit of expansion is beginning to possess 55 Interna- tional effects of numerous small states Economic exploitation 56 NEW CONSTITUTIONS OF EUROPE Pettiness of civic life Value of small states larger units would be advisable: tariff walls could be raised and the integration of rich and poor sections would mean little loss to the former and much advantage to the latter. "In a small state," moreover, as one very sympathetic critic has summarized the case, "civic life must necessarily be petty, humble, unambitious. The game of politics must center around small issues, and thus circumscribed in scope, loses the ethical value of scale." A small state "can never be a source of that triumphant pride and hope which lifts citizenship up to the plane of heroism." Sooner or later the small states must go. "They will be absorbed in larger political aggregates. They will follow the line of historical development which has created the large modern states of Europe out of a mosaic of tiny and war- ring fiefs. And nobody will regret their demise, least of all the citizens themselves." It is even contended "that patriotism in its fullest sense is only possible to large nations. Great states march on, little states mark time. . . . Guided by the hand of God, the mighty organs which are the chosen vessels of the highest culture upon earth take up, one after another in due sequence, each item of their sacred and providential programme." 1 On the other hand, it must be recognized that small states have distinct values. The almost fulsome admira- tion which was given them at the outbreak of the war was due to a very natural sentiment against the furious de- spoilment of Belgium and Serbia, and to the necessity of presenting an alternative to the ruthlessness of the Prussian political philosophy that contemned them. Per- them. It is the most fatal error that any people, great or small, can possibly make. Their strength to-day and their strength for all time is in serving the liberty of their own race." Mr. Lloyd George, Address at the Welsh National Festival Dinner (March 3, 1919). Two years later, with particular reference to Poland, Mr. Lloyd George remonstrated with the children of the Peace Treaty for breaking up the crockery. J H. A. L. Fisher, The Value of Small State*, pp. 4-5 (Oxford, 1914). SEGMENTATION AND FEDERATION 57 haps also the judgment of students is still influenced by the glorious although temporary brilliance of the ancient city-states and by the fact that three small com- munities Holland, Switzerland, and Scotland saved the principle of self-government from ultimate denial. Indeed the view has been expressed that "almost every- thing which is most precious in our civilization has come from small states, the Old Testament, the Homeric poems, the Attic and the Elizabethan drama, the art of the Italian Renaissance, the common law of England. Nobody needs to be told what humanity owes to Athens, Florence, Geneva, or Weimar. The world's debt to any one of these small states far exceeds all that has issued from the militant monarchies of Louis XIV, of Napoleon, of the present Emperor of Germany." 1 Even so, from the selfish viewpoint of the student of government, the creation of new political entities is to be welcomed. The more democracies there are at work, the more materials he will have for a study of different phases of popular government. There may be, as Lord Bryce says, most important "results within the next thirty years of setting up democracies in countries that have heretofore formed part of the Russian and Austro- Hungarian monarchies; or (to take a still more startling case) of trying the experiment of popular government in India, in China, in Russia, in Egypt, in Persia, in the Philippine Islands. If any of the bold plans of social reconstruction now in the air are attempted in practice Wisher, op. ciL, p. 9. There is a well-known passage in which Aristotle gives his opinion of the ideal state. He is much concerned about the question of size. " For law is order, and good law is good order; but a very great multitude cannot be orderly : to introduce order into the unlimited is the work of a divine power of such a power as holds together the universe. . . . To the size of states there is a limit, as there is to other things, plants, animals, implements; for none of these retain their natural power when they are too large or too small, but they either wholly lose their nature, or are spoiled." When a state is composed of too many, it is "almost incapable of constitutional government. For who can be the general of such a vast multitude, or who the herald, unless he have the voice of a Stentor?" Politics, VII, 4 (Jowett's translation). Their world contribu- tions Sources for study of popular government they will apply new tests to democratic principles and inevitably modify their working." 1 Moreover, small states have the same value that federal states have in providing opportunities for political exper- iment; and, as will be seen later, the new states of Europe, in their constitutional arrangements, electoral devices, and canons of social justice, have not been content to fol- low beaten paths; they have attempted invention. The point is well stated by the chief defender of the small states: Laboratories Indeed, one of the advantages flowing from the existence of for social smaller states consists in the fact that they serve as convenient experiments laboratories for social experiment a point likely to be appre- ciated in America, in view of the great mass of material for the comparative study of social and industrial expedients which is provided by the enterprise of the American state legislatures. Such experiments as woman suffrage, or as the state prohibi- tion of the public sale of alcoholic drink, or as a thoroughgoing application of the reformatory theory of punishment, would never be seriously discussed in large, old, and settled communi- ties, were it not for the fact that they have been tried upon a smaller scale by the more adventurous legislatures of the New World. Man is an imitative animal, and a study of such an organ as the Journal of Comparative Legislation exhibits the in- creasing uniformity of the problems which confront the legisla- 1 Modern Democracies, Vol. I, p. x. Lord Bryce's opinions as to the value of small states underwent some changes. In his book on The Holy Roman Empire he was an enthusiastic champion of the big-state movement; but in 1905 he lamented the fact that "the most conspicuous feature in the evolution of the modern world has been the effacement of the smaller and the growth of the larger nations and nationalities" with the result that "local patriotism, with all that diversity and play of individuality which local patriotism has evolved, withers silently away." Quoted by J. A. R. Marriott, The European Common- wealth, p. 145 (Oxford, 1918). In Modern Democracies, Lord Bryce said: "It was in small communities that Democracy first arose: it was from them that the theories of its first literary prophets and apostles were derived : it is in them that the way in which the real will of the people tells upon the working of govern- ment can best be studied, because most of the questions which come before the people are within their own knowledge. The industrial and commercial forces which draw men together into large aggregations seem to forbid the hope that small self-governing units may reappear within any period to which we can look forward. Yet who can tell what may come to pass in the course of countless years? War and the fear of war were the chief causes which destroyed the little states. If the fear of war could be eliminated there might be some chance of their return." Vol. II, pp. 444-445. SEGMENTATION AND FEDERATION 59 tor, and the increasing monotony of the solutions which he finds to meet them. All over the world industrial, educational, penal legislation tends to conform to type. And within limits the tendency is the necessary and wholesome consequence of the unifying influence of modern industrial conditions. But our enlarged facilities for imitation present obvious dangers, and among them the fatal temptation to borrow a ready-made uniform which does not fit. Small states may fall into this pit- fall as well as big ones, but at least their continued existence presents some guarantee for diversity of life and intellectual adventure in a world steadily becoming more monotonously drab hi its outer garment of economic circumstance. 1 Manifestly, however, the principal problem of small states arises from this same "outer garment of economic circumstance," no matter how drab may be its appearance. In the modern world small states are seldom self-sufficient economically. Industrial Czechoslovakia and Austria have need of agricultural Rumania, Jugoslavia, and even Hungary. Units of transportation and communi- cation are embarrassed and impeded by the multiplication of such artificialities as state boundary lines. Countries having no access to the sea are grievously handicapped in the struggle for material prosperity. And however contemptuous one may be toward a policy of materialism that is pursued as an end in itself, one must recognize that some degree of material prosperity is indispensable to a realization of the "good life" in almost any form. In his essay on " The Action of Centripetal and Centri- fugal Forces on Political Constitutions" Lord Bryce enumerated a number of factors that draw men or groups of men together in an organized community and keep them in union. Among the most important of these factors he mentioned trade, a common law and system of courts, religion, and a system of education that inculcates common ideas and aspirations. 2 The absence of some of these factors in certain of the pre-war states of Europe 'Fisher, The Value of Small States, pp. 17-18. 2 Bryce, Studies in History and Jurisprudence, p. 216 (New York, 1901). Economic problems of small states Centripetal and centrifugal forces 60 NEW CONSTITUTIONS OF EUROPE Formation of the Little Entente Its future development unquestionably operated centrifugally. The existence of others, and especially of the economic factor, will undoubt- edly serve to draw some of the small states into a closer union than their complete independence implies. Already, for example, the Petite Entente of Czechoslo- vakia, Jugoslavia, and Rumania 1 appears to have emerged into "something closely resembling a Great Power." 2 "So far from following any aggressive aims, the Little Entente exists to preserve peace on a basis of the new territorial status quo and the sanctity of treaties. It ex- ists as a check upon Hungary's military and political ambitions, and is resolved to prove to her by its members' solidarity the utter hopelessness of recovering her lost provinces. It regards the House of Hapsburg and Magyar monarch ism as identified with reaction and subversion. . . . Each of its members asks nothing better than to continue in close accord with the Western nations, with- out whom its unity and independence could not have been achieved. But not even from them is any one of the three prepared to accept dictation in matters such as Hungary's frontiers or the regime of the Danube, which they re- gard as vital to their own development. They are bent upon economic consolidation and freer mutal intercourse, and intend to provide the proof that the break-up of Austria-Hungary does not involve anarchy or Balkan - ization." 3 It is impossible to say whether the Little Entente will ever grow into a true and effective confederation of the small states of central Europe. Austria was drawn partially into the group by the Treaty of Lana which was J The Little Entente rests upon a series of bilateral agreements. The agree- ment between Czechoslovakia and Jugoslavia was signed August 14, 1920; that between Czechoslovakia and Rumania, April 23, 1921; and that between Jugo- slavia and Rumania, June 7, 1921. D. Thompson and M. W. Fodor, "The Menace of the Little Entente," The New Republic, April 19, 1922. R. W. Seton-Watson, "The Little Entente," The New Europe, October 14, 1920. SEGMENTATION AND FEDERATION 61 concluded with Czechoslovakia early in 1922. 1 And Poland was drawn in to the extent of agreeing to stand with the Little Entente " both politically and economically " at the Genoa Conference in the spring of 1922. But Mr. Benes, Prime Minister of Czechoslovakia and foremost spirit of the Entente, has been quoted as being "opposed to either a political or economic federation of these states" or even to a customs union or a free trade agreement; he favors only "the consummation of political and economic treaties between state and state, such as the one just con- cluded between Czechoslovakia and Austria." 2 Certainly there are many centrifugal forces that will operate against the possible transformation of the Little Entente into a close confederation. There have been indications also that the Baltic States desire to modify their separatist status by acting jointly in respect to certain matters of common concern. Thus in March, 1922, a treaty was signed between Finland, Es- thonia, Latvia, and Poland on the basis of "the community of their mutual political and economic interests." The treaty provided for arbitration of disputes between the signatory states, the negotiation of administrative and economic agreements, the protection of minorities, a "benevolent attitude" by the other states if one of them is attacked, and immediate consultation in such circum- stances "as to measures to be undertaken." 3 Whatever may be the ultimate result of such arrange- ments as the Little Entente and the Baltic States' Treaty, they at least signify the early recognition of a necessity for striking some kind of compromise between national- istic aspirations for complete independence and the sternly 'Austria agreed to execute the Treaties of St. Germain and Trianon to the full extent, to observe neutrality in case Czechoslovakia were attacked, and to prevent anti-Czech irredentist organizations on Austrian territory. 'Interview in The Manchester Guardian Weekly. March 31, 1922. '"The Baltic States' Treaty of Warsaw," Current History, June, 1922, p. 470. The Baltic States' Treaty of 1922 NEW CONSTITUTIONS OF EUROPE The federal idea in Germany and Austria Prussian preponder- ance in German federalism practical considerations that urge concerted action in some matters of common concern. Of the European states engaged in the World War the German Empire was the only one with a federal system of government. The Austro-Hungarian Monarchy operated under a unique "dual" system that was far from being federal in character. 1 Indeed federalism had been the high ambition of the non-German and non-Hungarian nationalities of Austria-Hungary when the dual scheme was agreed upon between the Germans of Austria and the Magyars of Hungary in 1867; and toward this ultimate goal some of these "subject" nationalities had never ceased to aspire. It is a curious though not inexplicable fact that in the gray twilight of military defeat and disillusionment the federal idea waned in Germany, while in Austria, although the races that had formerly advocated federalism were now organized into new states, the federal idea gained great headway among a population that was almost exclusively German. 2 The problem of federalism in the new Germany was inextricably interwoven with the problem of Prussia's preponderance in the old Empire. 3 If federalism was to be preserved, how could this preponderance be weakened or destroyed? If a unitary state was to be created, how could Prussia, with four-sevenths of the population of the country, be prevented from controlling the entire policy of the Reich? These were the most difficult questions that the makers of the German constitution faced. They were debated at great length and with great passion. 4 Naturally the lesser states held Prussia especially respon- sible for the catastrophe that had fallen upon them all. ^e below, pp. 241 ff. "See below, pp. 254, 255. "See below, pp. 213 ff. 4 For a brief account of the controversy in the Constituent Assembly, and the proposals that were brought forward, see Brunet, The New German Con- stitution, Chapter II (New York, 1922). SEGMENTATION AND FEDERATION 63 And naturally the Prussians clung with desperation to their post of ascendency. In the solution that was reached if solution it can be called the status of Prussia in the Reich was unquestionably changed; but it is impossible to say in advance of events whether her power was increased or diminished, or whether it was, after all, not fundamentally altered in degree. The most obvious way to diminish the importance of Prussia in the federal system, if that was to be continued, was to dismember her and to establish certain new states within her old territory. There were the Rhenish prov- inces, for example, which had never been enamored of their absorption into Prussia and of their domination by the Prussian bureaucracy. There was Hanover, which had been annexed to Prussia by force in 1866 and which had never been completely Prussianized. There were the provinces of Upper Silesia and of East Prussia, the latter now separated from the body of the Reich by Poland and the Danzig corridor. The plebiscites which were to be held in parts of both of these provinces to deter- mine whether they would or would not remain with Ger- many might be favorably influenced by a separation of the provinces from Prussia. Among the small states of central Germany there was a movement for amalgamation into a single state which would also claim a slice of Prussian territory. In the Constitutent Assembly the deputies from the Rhineland strenuously urged that the Rhenish provinces be formed into a new western state of the Reich, which would embrace also a part of Westphalia and the territories of Oldenburg and Bremen. Indeed it was the Rhineland that figured chiefly in all of the discussions of Prussian dismemberment. While the Prussians presented many arguments in opposition to the creation of a Rhenish state within the Reich, perhaps the most powerful opposing influence was the danger of the development of a Rhenish Possible ways of dismember- ing Prussia Possibility of a Rhenish state 64 NEW CONSTITUTIONS OF EUROPE No segmen- tation of Prussia by the constitution Constitu- tional provisions Difficulty of operating state outside the Reich. In spite of the Peace Conference, France was leaving little doubt as to her own welcome atti- tude toward such an eventuation. In fact, it may well be that it was France, unwittingly, rather than Prussia, wit- tingly, that prevented the carving up of the latter's terri- tory within the Reich. The decision was at length reached that no immediate segmentation of Prussia was to take place. The consti- tution itself made no changes in the boundaries of the states. Instead, provisions were made by which future changes might be effected. These provisions are some- what complicated and must be read largely in the light of the problem of Prussia's relative size and power. 1 "The alteration of state boundaries and the creation of new states within the Reich shall take place by virtue of national law modifying the constitution." But a "nation- al law modifying the constitution " requires a two-thirds vote of the Reichstag; 2 hence Prussia could readily block any proposal to alter her boundaries. Needless to say, however, "where the states directly affected consent, an ordinary law shall suffice," such law being enacted by an ordinary majority vote. But what if one of the states Prussia, for instance does not consent? In such case, an ordinary law may likewise serve the purpose, provided "the alteration of a boundary or the creation of a new state is demanded by the wishes of the population." But note the difficulty of making these wishes known. "One- third of the residents of the territory to be separated who are qualified to vote for members of the Reichstag" must demand a referendum upon the proposal. Manifestly this is an almost prohibitively high proportion of the voters, especially in consideration of the huge electorate composed of both men and women. Moreover, the proposal must be ratified by an absolute majority of all the electors, in- 1 Art. 18 of the constitution. 'Art. 76. SEGMENTATION AND FEDERATION 65 eluding those who do not participate, and by three-fifths of those who do participate. 1 It is perhaps not to be presumed that Prussia would interpose opposition to a popular demand so overwhelmingly expressed; but it ought to be noted that even in respect to "ordinary laws" Prussia, having a majority of the population of the Reich, will doubtless also have a majority of the members of the Reichstag, 2 although not of the Bundesrat. 3 Having had no experience in the working of demo- cratic institutions, the framers of the German constitution may have been over-sanguine concerning the ease with which initiative petitions and popular referenda are operated. Whether from largeness of faith, however, or from cleverness of design, they have made the process of segmenting Prussia extraordinarily difficult of ac- complishment. And even at this, lest anti-Prussianism should attempt to ride the waves of the new democracy immediately, it was provided that this difficult process could not be tried for two years after the constitution went into effect that is, not until August 11, 192 1. 4 It was not until January, 1921, that the plebiscite required in a part of Upper Silesia by Article 88 of the Treaty of Versailles was set for March 20, 1921. Meantime, how- ever, it was desirable to offer every available attraction to the Silesians. The Prussian-owned coal mines in the plebiscitary area were of immense importance to Ger- many. 5 Possible transformation of the Prussian province of Upper Silesia 6 into the member state of Upper Silesia 'For other details see Art. 18. *Since under the electoral law the number of members of the Reichstag is not determined by apportionment on the basis of population, but depends upon the number of voters who participate in an election, it is impossible to say that Prussia will always have an absolute majority. See below, p. 99. 'Art. 61. 4 Art. 167. "Bowman, The New World, pp. 345, 346 (Yonkers, 1922). The province was created by a Prussian law of October 14, 1919. Preussiche- gesftzblatt, 1919, No. 169. Largeness of faith or clever- ness of design Constitu- tional amendment for Upper Silesia 66 NEW CONSTITUTIONS OF EUROPE Results of Upper Silesian plebiscite might have a favorable influence upon the vote. But the creation of this state prior to August 11, 1921, could apparently be effected only by a constitutional amend- ment. 1 An amendment making possible the establish- ment of this state was adopted November 27, 1920. 2 The result of the plebiscite was on the whole more fa- vorable to Germany than to Poland; but differences of opinion arose among the members of the Inter-Allied Commission in respect to the allocation of territory to Ger- many and Poland respectively. In the end the matter was referred to a Commission of the League of Nations, and on October 12, 1921, the text of the award of the League was made public. In addition to fixing a boundary, the League proposed that for a provisional period of fifteen years the plebiscitary area should be placed under an "Upper Silesian Mixed Commission" composed of an equal number of Germans and Poles under a "neutral" presidency. 3 On May 14, 1922, during the Genoa Confer- ence, an agreement was signed by Doctor Rathenau and M. Skirmunt, the German and Polish foreign ministers, which generally confirmed the decision and proposal of the Council of the League of Nations. In view of these complications arising out of the indecisive result of the plebiscite, and in view of the extensive award of territory that was made to Poland, it is improbable that the state of Upper Silesia, as provided by the constitutional amend- ment, will be established. What remains of Upper Silesia will doubtless as heretofore be administered as part of the Regierungsbczirtk Oppehi, a subdivision of the Prussian province of Silesia. "Article 167 did not postpone the date of making changes in state boundaries by constitutional amendment or "where the states directly affected consent." But Upper Silesia was not a state and therefore could consent only by a referen- dum, the taking of which was postponed. 2 Reichsgesetzblatt, 1920, No. 1987; see below, German constitution, Art 167. ^League of Nations Official Journal, 2d year, Nos. 10-12, December, 1921, pp. 1223-1232. SEGMENTATION AND FEDERATION 67 Almost immediately after the revolution the two small states of Reuss (elder and younger lines) united; and a movement was started for creating a state of "Great Thuringia" to embrace eight of the small states of central Germany and an important segment of Prussian territory with the Prussian city of Erfurt as capital. Both Prussia and Erfurt interposed violent opposition, and the project as a whole was abandoned. The state of Thuringia was nevertheless formed by the union of seven states Saxe- Weimar, Saxe-Altenburg, Reuss (the two branches having previously united), Saxe-Gotha (not including Coburg), Schwarzburg-Rudolstadt, Schwarzburg-Sonderhausen, and Saxe-Meiningen. The consolidation of these states was effected by a "treaty." Their consent having thus been given, the state of Thuringia was recognized by an "ordinary law" of the Reich of April 30, 1920. Shortly after the war Coburg detached itself from the Duchy of Saxe-Coburg-Gotha without any legal sanction. On Oc- tober 30, 1919, the question of whether this "irregular" state should unite with Bavaria or with the new state of Thuringia, then in the making, was overwhelmingly decided by the voters of Coburg in favor of union with Bavaria. 1 On March 11, 1920, the Bavarian government consented, and the union was legalized by an ordinary law of the Reich of April 30, 1920. The former German Empire consisted of twenty-five units exclusive of the Imperial Territory of Alsace-Lorraine. The Reich now consists of eighteen units; for counting Reuss as two states, seven of the old states merged into the new state of Thuringia, while an eighth state (Saxe- Coburg-Gotha) disappeared partly into Thuringia and partly into Bavaria. In net result, therefore, the constitu- tional provisions for the alteration of state boundaries and entities have, for the present at least, left the huge territory of Prussia unaffected. ! This referendum was apparently extra-constitutional. Formation of state of Thuringia Coburg unites with Bavaria Eighteen states in the Reich 68 NEW CONSTITUTIONS OF EUROPE American provision for admitting new states Definition of federal government The constitution of the United States provides that "new states may be admitted by the Congress into the Union; but no new state shall be formed or erected within the jurisdiction of any other state ; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states con- cerned as well as of the Congress." With the single exception of West Virginia, which was admitted to the Union under unusual and irregular circumstances, the territory of no state has ever been affected under this provision. The clause has not been used except to admit states formed out of territory not included within the jurisdiction of any existing state. The corresponding clauses of the German constitution have already been pressed into service; but it remains to be seen whether the difficult machinery provided for the possible partition of the overshadowing state of Prussia can be and will be made to operate. Federal government as distinguished from unitary government is usually defined as a system under which a division of powers is made between a central government on the one hand and local units of government on the other, which division of powers is made by the national consti- tution and may be altered only by amending the consti- tution. It might be argued that this definition and the distinction it attempts to make are more legalistic than realistic. It might be urged that under most federal systems there can be and usually is a gradual increase in the centralization of powers without formal amendment of the constitution, and that under most unitary systems the complete obliteration of all powers of local self-govern- ment would be unthinkable outside the realm of legal speculation. It may be readily admitted that the difference is merely one of degree ; but it is one of very im- portant degree both in fact and in law. SEGMENTATION AND FEDERATION 69 The essential tests of federalism, it would seem, are two in number: first, the powers that are conferred upon or reserved to the local units must be of some genuine po- litical significance; and second, these powers cannot be withdrawn from the local units at the unrestricted will of the central government. A system that leaves only a negligible dross of powers to the component states is a federal system only in name. A system under which the central government is empowered to extend its own competence at pleasure is not a federal but a unitary system. Judged by either of these tests, the new German system leaves doubt as to the reality of its federalism. The legislative powers of the former imperial govern- ment were by no means inconsiderable; but the powers of the Reich have been enormously increased under the new constitution. As a French commentator has said, the centralizing tendency "has gone as far as possible without completely suppressing the reason for the exist- ence of the states." 1 Indeed it is not certain that their raison d'etre has not been suppressed. The constitution, like the old constitution, confers power upon the Reich in respect to three different groups of subjects. Over the first group 2 the Reich is given exclusive control. Over the second group 3 it is given priority of jurisdiction, for the states may legislate only "as long as and in so far as the Reich does not make use of its powers of legislation. " 4 In respect to the third group 6 the Reich "may prescribe fundamental principles," leaving only matters of detail to the states. In one important field of economic legisla- tion not only do the laws of the Reich take precedence over those of the states, but without legislating itself the Reich Tests of federalism 'Brunet, op. cit., p. 62. 'Art. 6. 'Art. 7, 8, 9. Cf. Art. 4 of the old constitution. Art. 12. Arts. 10, 11. Legislative centraliza- tion in Germany 70 NEW CONSTITUTIONS OF EUROPE Little power left to the states Increase of administra- tive cen- tralization may also veto the laws of any state. 1 In the realm of finance the Reich may not only claim such sources of revenue as it requires, with "due consideration" for the "needs of the states," but may also determine the fun- damental principles of state taxation and revenue. 2 Reading this list of subjects in respect to which the Reich is vested with exclusive or potential control, one can but wonder what sphere of action will remain to the states if the Reich elects to exercise the full measure of its competence. Tendency toward centralization has been the experience under most federal systems of govern- ment. It will require heroic opposition on the part of the states of Germany to resist this tendency. As a German commentator has remarked: "According to the con- clusions of the Constitutional Committee, a constitutional competence is secured to the states free from control by the Reich, only in so far as the constitution fixes this competence by special provision. In case of doubt, power belongs to the states solely under the legislation and su- pervision of the Reich." Therefore, he says, "We can understand it when the governments of states were not acquiescent in respect to this matter and when Saxony in her declaration and protest of April 16 [1919J spoke of the use of force by the states." 3 It should be noted also that there is under the new con- stitution a very considerable increase in the administrative powers of the central government. Under the Empire nearly all laws including imperial laws were executed by the states and not by imperial officials. To an extent this is still true indeed the largest sphere of competence that is left to the states appears to be administrative. But in the realm of its exclusive powers the Reich also has a large administrative competence of its own. Moreover, 'Art. 12. 'Art. 11. s Ervvin Jacobi, Einheitsstaat oder Bundesstaat, p. 10 (Leipzig, 1919). SEGMENTATION AND FEDERATION 71 "in the entire sphere of possible legislation, the Reich now enjoys by constitutional grant also the power of supervi- sion over the administration of the states, so that the Reich can exercise this supervision where it wills, unless perhaps a line is drawn by special and exceptional provisions of the constitution. Moreover, the means of supervision are strengthened; a commissioner of the Reich may be sent to the government of the state, and the Reich may, upon the failure of the central officers of the state, forward instructions direct to the intermediate and subordinate officers." 1 Finally, of course, if the Reich is not content with its immense grant of powers, there remains the possibility of amending the constitution. Under the old constitution the Bundesrat represented the state governments, and the provision that fourteen votes in the Bundesrat were suffi- cient to defeat a proposed amendment to the constitution operated, not only to safeguard the paramountcy of Prussia, but also to protect the small states against Prussian encroachment by the route of constitutional amendment. It is quite otherwise in the new constitution. An amend- ment requires a two-thirds vote in the Reichstag and the Reichsrat; but the former may by the same extraordinary majority adopt an amendment over the veto of the latter, in which case the Reichsrat may only demand a referen- dum. 2 Moreover, the new Reichsrat is scarcely in any sense a counterpart of the old powerful Bundesrat which it nominally replaces. At the very least, then, it may be said that the German constitution may be amended as easily as a presidential veto may be overridden by the American Congress. But if Congress could add to its powers by such a process, only a high and unfamiliar sense of constitutional morality could delay the progress of the federal system in the United States toward the institu- tional scrap-heap. tfacobi, op. cit. t pp. 9. 10. 'Art. 76. Central powers may be increased by amend- ment The legislature may amend the constitution NEW CONSTITUTIONS OF EUROPE Prussia makes question of federalism important In one aspect of the matter, it may be, as Hugo Preuss has said, that "whether the German Republic should now be called a federation of States (Bundesstaat) with strong national central authority, or a unified State (Einheitsstaat) with strong territorial decentralization, is hardly more than a theoretical controversy about terminology." 1 But the question of the position of Prussia is inextricably bound up in the question of " Einheitsstaat oder Bundes- staat "; and until the role and the competence of Prussia in the new scheme of things are fully comprehended, neither the Germans themselves nor the rest of the world will be satisfied with this cavalier dismissal of the matter as "a theoretical controversy about terminology." Brunet says that "nearly all the German jurists have attempted to answer this question and are almost equally divided in the answer." 2 Unquestionably some of their arguments are directed to points of no interest or importance whatever. 3 A federal system is not changed into a unitary system by rechristening the units Lander in lieu of Staaten. Federal- ism is a matter of the location of power and of nothing else. What is the power of Prussia in the new German scheme? In the words of a professor of law in the University of Leipsig, it is somewhat as follows: But the neich in relation to Prussia finds itself in the situation here described. A Prussia, comprising more than four-sevenths of the Reich in area as well as in number of inhabitants, together l The Encyclopedia Britannica, Vol. XXXI, p. 251 (London and New York, 1922). In the article on "Germany" the subdivision entitled "The Republican Constitution" was written by Dr. Preuss, who was chiefly responsible for draft- ing the constitution. 2 Brunet, The New Constitution of Germany, p. 70 (New York, 1922). He cites as holding the view that Germany has become a unitary state : Giese, Die Reichsverfassung, vom 11. August 1919, p. 65; Jacobi, Einheitsstaat oder Bundes- staat, p. 6, et seq.; Poetsch, Handausgabe der Reichsverfassung, p. 25, et seq.; Wenzel, Festgabe fur Bergbohn, 1919, p. 159, et seq. He cites as taking the op- posite view: Stier-Somblo, Reichsverfassung, p. 79 etseq.; Walter Jellinek, Revolu- (ion und Reichsverfassung, in Jahrbuch des offentlichen Rechts, p. 81; Arndt, Reichsverfassung, 1919, p. 35. 3 Brunet, op. cit., pp. 70, 71. SEGMENTATION AND FEDERATION 73 with Prussian particularism which is incontestably strongly Is developed and remains in full vigor, makes of the unresisting Germany German unitary state simply an extended Prussia. Prussia an extended runs no risk when for the event of a unified transformation of Prussia? the Reich, she places at its disposal her power over customs and railroads. For in reality the "merging of Prussian administra- tion into the administration of the Reich" can for the present only lead to a transformation of the administration of the Reich into Prussian administration. But in connection with this stroke only two possibilities pre- The sent themselves for the event of a transformation of Germany alternative into a unitary state : Either Prussia in her hitherto existing form will take possession of the state, in which case one must be con- scious of this, that the German unitary republic in reality means a Prussian unitary republic, within which the non-Prussian districts in all questions to be decided must follow the Prussian will. Or if one would avoid this Prussian unitary state and will at least make an effort to erect a unitary state with a so-to- speak neutral central will then the end of Prussia is a prelim- inary condition, whether this be accomplished in the way of a self-undertaken decomposition or of a destruction decreed by the Reich. Both the proposal of Preuss and the proposal of the Consti- Only tutional Committee counted upon such a dissolution of Prussia internal and provided a legal route toward this end; in doing so they disintegra- thought first of all of a decomposition from within, but the Con- turn of stittitional Committee also opened up the possibility of destruc- Prussia is tion. At all events it must be thus apparent that not the idea possible of an extended Prussia but the idea of a unitary Reich over Prussia would be realized. On the contrary the proposal in respect to the ministry permitted no change in its permanency by Prussia, certainly not in the interest of a Reich governed by a unitary Prussia but in behalf of a federal state. If we continue for the present with the unitary state, so is the contrast between a destruction of Prussia and her decom- position from within not so great as at first appears. For in connection with a partition of Prussia by the Reich the determi- nation by a law of the Reich is not conclusive. Always the question still arises whether the Reich is also competent to give ultimate effect to its order by force. And once more the sim- ple fact is of weight that the Reich is powerless in the face of a closed Prussia. Only when within Prussia great districts fall away from her can the Reich partition Prussia. Moreover, the much discussed destruction of Prussia is possible only under the hypothesis of an internal disintegration. 1 ^acobi, Einhetisstaat oder Bundesstaat, pp. 27-29. 74 NEW CONSTITUTIONS OF EUROPE Prussia is still above the Reich The Austrian Bund Prussia has lost the tremendous asset of having a King who was ex officio German Emperor and who appointed, usually in one and the same person, the powerful Imperial Chancellor and the powerful Minister President of Prussia. 1 She has lost certain specified vetoes 2 and privileges, as well as a leadership derived from her dominating in- fluence in the most powerful organ of the Empire, the Bundesrat, now sadly reduced to the status of a gesturing Reichsrat. Even in this emasculated upper chamber she has been compelled to share her representation with her provinces. 8 But these losses cannot gloss the fact that Prussia, with four-sevenths of the population of Germany, can elect the President of the Reich and control a majority of the seats in the Reichstag. "Prussia is still above the Reich." The union of Austria with Germany was contemplated by both the German 4 and the Austrian 5 constitutions but was prohibited by the Treaty of Versailles. 6 Even if Austria, with a population of more than six millions, had been permitted to join Germany, whether as one state or as several states, Prussia would still have had a substan- tial majority of the population of the Reich. 7 Needless to say, however, her relative strength would have been somewhat decreased. The federal character of the Austrian Republic is em- phasized throughout the constitution by the prodigal use 'See below, p. 13. 2 Arts. 5, 11, 35, and 37 of the old constitution. 3 Art. 63. 4 Art. 61. *See below, p. 255. Article 80 reads: "Germany acknowledges and will respect strictly the inde- pendence of Austria, within the frontiers which may be fixed in a Treaty between that State and the Principal Allied and Associated Powers; she agrees that this independence shall be inalienable, except with the consent of the Council of the League of Nations." 7 According to the 1919 census there were 60,837,579 people in the German Reich. Of these 37,665,013 (more than four-sevenths, but slightly less than three-fifths) were in Prussia. Under the census of 1920 the population of Austria was approximately 6,711,859. SEGMENTATION AND FEDERATION 75 of the word Bund. It is not a Republik or a Reich but a Bundesstaat that recurs again and again in the Bundes- verfassungsgesetz. It is, nevertheless, no difficult matter to comprehend the thin essence of the federalism that is provided by this prolix and circumlocutional instrument of government. The Union consists of only eight com- ponent states, 1 but in the problem of the state of Lower Austria there is reproduced in miniature a situation some- what similar to that of Prussia in Germany. Lower Austria contains about half of the population of the country. No doubt this accounts in large measure for the curious and complicated arrangements of the constitution in respect to the state of Lower Austria and the city of Vienna. 2 For certain purposes these two divisions of Lower Austria are regarded as separate states, and a kind of "dualism" between them is set up within the consti- tution. 8 In matters of legislation the powers of the central government in Austria appear to be even more compre- hensive than those of the German Reich. As in the German constitution there are three groups of subjects, but the basis of division is somewhat different; there is, for example, no group of subjects over which the states may legislate until the central government elects to occupy its field of competence. Over the first group the Federal State has both legislative and executive control. 4 Over the second and much less important group 6 it has a legis- ir rhe constitution makes provision for the state of Burgenland, or German West Hungary, when that territory, which was assigned to Austria, shall have been completely handed over by Hungary. This constitutes the eighth state. 'Arts. 3, 34, 108-114. would have supposed that the experience with "dualism" under the old Monarchy would have been sufficient to cause an avoidance of the principle; although of course the dualism between Lower Austria and Vienna is of a quite different variety. 4 Art. 10. See also Art. 102 in re the administrative competence of the federal government. Art. 11. Lower Austria comparable to Prussia Legislative and admin- istrative centraliza- tion in Austria 76 NEW CONSTITUTIONS OF EUROPE Federal power of veto and dissolution Austrian federalism attenuated Reason for centraliza- tion in Czecho- slovakia lative competence that is apparently exclusive; but "the states have the power of execution," which is nevertheless subject to federal supervision. 1 Over the third group it has no power of execution and has the power to legislate only as to "fundamental principles." 2 The Federal State has practically complete control over the sources of national, state, and local revenue, 3 while the division of competence in respect to education was left for later determination by a federal constitutional law. 4 Resid- uary powers belong to the states; 6 but it is difficult to imagine any power of importance that is not covered by the constitutional enumeration in favor of the Federal State. Even within the manifestly restricted field of state legislative competence, the Federal Ministry may impose a suspensory veto upon any state law; 6 it may even bring about the dissolution of a state Landtag. 7 Moreover, there are in the federal constitution a great many details regulating the organization not only of the state governments but also of the municipal governments. It is difficult to assess a governmental system from the naked language of its fundamental law. But judged by other federal systems Austrian federalism appears to be highly attenuated. It is an idea rather than a fact, an impression rather than a reality an impression created chiefly by repetitious reference to the Bund. Because of their composite character and diversity of nationalities the introduction of federalism into the new states of Czechoslovakia and Jugoslavia would in many respects have been logical and natural. In Czechoslovakia there are five nationalities. Of the nearly fourteen million inhabitants, the Czechs (seven million) and the Slovaks (two and a half million) constitute about 65 per cent. There are nearly four million Germans, nearly seven hundred thousand Magyars, and six hundred thousand See also Art. 16. 'Art. 15. 'Art. 12. Art. 98. 3 Art. 13. 7 Art. 100. SEGMENTATION AND FEDERATION 77 Ruthenians. 1 These several nationalities are so distributed that, if a federal system were established with large local autonomy in the hands of the component units, the Czecho- slovaks would find it difficult if not impossible to control the governments of some of these units. Silesia, for example, would doubtless be controlled by the Germans and Ruthenia by the Ruthenians, while in Slovakia the Slovak majority over the combined Magyars, Germans, and Ruthenians is so small that their control would be pre- carious. 2 It was because of this fact that federalism was not seriously considered by the Czechs and Slovaks. Manifestly they could dominate the political situation much more easily under a unitary system of govern- ment. In Jugoslavia the issue between federalism, or decentrali- zation, and unitarism, or centralization, was hotly fought. This was as might have been expected; for Jugoslavia was formed of the independent Kingdoms of Serbia and Montenegro; of Croatia-Slavonia, which had enjoyed a considerable measure of autonomy under Hungary; of Bosnia-Herzegovina, which since 1910 had had a measure of autonomy under the joint administration of Austria and Hungary; of the Austrian province of Dalmatia and parts of the Austrian provinces of Carniola, Carinthia, Styria, and Istria (these parts constituting Slovenia) ; and of parts of Banat,Backa, and Baranja, which had been inte- grated with Hungary proper. In view of the difference of political tradition in these several units and of diversity of sub-race, language, and religion, a federal system would 'The figures given by Bowman, The New World, p. 231 (New York, 1922), do not entirely agree with those given by Masaryk in his article on "Czechoslovak- ia" in The Encyclopaedia Britannica, Vol. XXX, p. 785 (London and New York, 1922). '"Only 60 per cent, of the people of this district are Slovaks; a quarter are Magyars; 8 per cent, are Germans, and 7 per cent, are Ruthenians. The total population is about 3,000,000. Therefore, in any local Slovak parliament there would be a bare majority of Slovak members. In a crisis involving the Czechs, Slovakia might lean toward Hungary in a way that would imperil the existence of Czechoslovakia." Bowman, op. cit., p. 212. Composition of Jugo- slavia 78 NEW CONSTITUTIONS OF EUROPE Jugoslavia or a "Great Serbia" Idea of British imperial federation dead "Devolu- tion" in the United Kingdom seem to have been highly appropriate. 1 A genuine Jugo- slav program called for a federation; but the program of a "Great Serbia" called for centralization. In the end the principle of centralization triumphed; but the constitution that embodied it was accepted by the Croats and Slovenes not with grace but apparently because any constitution was better than none. It was only in the official designation of the new state as the "Kingdom of the Serbs, Croats, and Slovenes" that their "separate- ness" found recognition. No discussion of the recent development of federalism in Europe would be complete without some mention of the situation in Great Britain. For a quarter of a century or more there has been considerable discussion of the matter of imperial federation, looking to the establishment of more satisfactory relations between the self-governing Dominions and the mother country. But imperial federa- tion is no longer a subject of practical politics in the British Empire. To any possible application of the federal idea the Dominions appear to prefer then- present indefinite status, which nets them complete independence in nearly all but name. A British imperial constitution is probably wholly out of the question. 2 As applied, however, to the United Kingdom itself, the agitation for federalism under the designation of "devolu- tion" is by no means a dead issue. And the agitation rests not so much upon a demand for self-government among the units of the Kingdom as upon the practical necessity of bringing some measure of relief to an over- ^'The total number of inhabitants is about 12,000,000, divided as follows: Serbs, 6,000,000; Croats, 2,500,000; Slovenes, 1,000,000; Macedonian Slavs, 550,000; Magyars, 450,000; Albanians, 250,000; Moslem Serbs, 625,000; Ru- manians, 150,000; Germans, 450,000; others, 175,000." Bowman, op. cit. r p. 253. 2 For a discussion of some of the schemes for imperial federation see Dicey, The Law of the Constitution, Introduction (8th ed., London, 1915); Duncan Hall, The British Commonwealth of Nations (London, 1920); and Pollard. The Evolution of Parliament. SEGMENTATION AND FEDERATION 79 burdened Parliament and Cabinet. The Parliament of the United Kingdom acts in four more or less distinct capacities: first, as a local legislature for the separate interests of England and Wales, of Scotland, and formerly of Ireland; second, as a national legislature for the in- terests of the United Kingdom as a whole; third, as an imperial legislature that is peculiarly responsible for the partially self-governing dependencies, crown colonies, and protectorates; and fourth, as the "single, sole, and sover- eign authority finally responsible for the control and pro- tection of the interests of the British Empire as a whole and in all its parts." 1 In these several capacities the Parliament of the United Kingdom is responsible directly or indirectly for the peace, order, and good government of a quarter of the total population of the earth. The bur- den upon it has of recent years become almost intolerable. Imperial interests have grown in number and complexity. The internal legislative and administrative problems of the people of the British Isles, like the similar problems of most other peoples, have likewise become more numerous and more complicated. Merely because of the ever-increasing concentration of business many persons have thought that some measure of decentralization was not only de- sirable but also indispensable. To this end, and wholly apart from the unique and difficult Irish problem, pro- posals have been made for a devolution of some part of the authority of the English Parliament to local legislatures created for England, Scotland, and Wales. 2 JMacDonald, The Case for Federal Devolution, p. 8 (London, 1920). 2 Mr. MacDonald lists a number of effects that congestion has on the English parliamentary system. (1) Closure of debates is necessary, but the rules in force can be used to override the rights of minorities, and "to accept them as per- manent parts of the procedure of the House must inevitably tend to aggrandize the power of governments and to diminish in a corresponding degree the power of control by the House over them." (2) Legislation by reference is a device that is successfully used in order to save time; but it makes the law more diffi- cult to understand and adds greatly to the cost of litigation. (8) The with- drawal of bills from the consideration of the House as a whole and their refer- ence to committees results in a saving of time; but the practice divides the Parliament over- burdened 80 NEW CONSTITUTIONS OF EUROPE Conference on "Devo- lution" The Speaker's plan In October, 1919, the Prime Minister appointed a Con- ference on Devolution, which was presided over by the Speaker of the House of Commons. This action was taken in response to a resolution passed by the House of Commons by a large vote on June 4, 1919. * The Con- ference was unable to reach an agreement but made a report in April, 1920. Two schemes were proposed, one by the Speaker and the other by Mr. Murray MacDonald, a member of the Conference. 2 The Speaker's plan favored the experimental establishment of a subordinate legislature for each of the three national units of Great Britain England, Scotland, and Wales. These subordinate legis- latures, called Crown Councils, would be composed of two chambers, a council of commons and a council of peers. Each council of commons would be made up of the responsibility of the House of Commons and has many other objections. (See also Willoughby and Rogers, op. cit., p. 249.) (4) "The rapidly growing and still more injurious practice of referring difficult and controversial points of legislation from parliament as a whole to public departments to be dealt with by them through orders in council, provisional orders, and departmental commit- tees" furnishes one explanation of the outcry against the increasing bureaucracy of administrative departments. (For an interesting discussion of the nature and consequences of this administrative legislation see C. T. Carr, Delegated Legislation [Cambridge, 1921]). (5) Moreover congestion is not without im- portance in respect to Cabinet responsibility. "The work of the Cabinet, and particularly the legislative and more onerous side of it, has branched out in so many and such different directions that no single member of it can possibly make himself acquainted with or responsible for it all. It is notorious that, in conse- quence of this, collective responsibility of the Cabinet for the proposals it submits to Parliament has ceased to be a reality and become a mere form." MacDonald, op. cit., pp. 17-30. 1 It was resolved: "That, with a view to enabling the Imperial Parliament to devote more attention to the general interests of the United Kingdom and, in collaboration with the other Governments of the Empire, to matters of common Imperial concern, this House is of opinion that the time has come for the creation of subordinate Legislatures within the United Kingdom, and that to this end the Government, without prejudice to any proposals it may have to make with regard to Ireland, should forthwith appoint a Parliamentary body to consider and report " (1) upon a measure of Federal Devolution applicable to England, Scotland, and Ireland, defined in its general outlines by existing differences in law and administration between the three countries; upon the extent to which these differences are applicable to Welsh conditions and requirements; and upon the financial aspects and requirements of the measure." *See Conference on Devolution: Letter to Mr. Speaker from the Prime Minister (with Appendices). Cmd. 692, 1920. Donald's SEGMENTATION AND FEDERATION 81 members of the House of Commons elected from the area of its jurisdiction. Each council of peers would consist of peers nominated by the committee of selection of the House of Lords, and its membership would be limited to half that of the council of commons. Sessions would be held in the autumn, it being assumed that Parliament would continue its practice of sitting during the spring and summer months. The alternative scheme framed by Mr. MacDonald Mr. Mac- differed from the Speaker's scheme in the important par- ticular of proposing the permanent establishment of sub- ordinate parliaments separately elected. The question of whether these legislatures should be bicameral or uni- cameral was left to the determination of the Government; but it was urged that if the decision of the Government favored the bicameral system, the recommendations of the Bryce Conference should be followed in the matter of the composition and the powers of the second chambers. 1 In respect to the "devolution" of powers, which of course amounted to a division of powers between the British Parliament and the local legislatures, the proposals were substantially identical. 2 The division would be somewhat different from that of any other federal system; but, apart from the fact that it would be subject to alteration at the J See above, pp. 45 ff.; below, Appendix V. *On the local legislatures, it was proposed to devolve powers over the following matters : (1) internal commercial undertakings, professions, and societies (advertise- ments, amusement places and theatres, auctioneers, building societies and loan societies, licensing [liquor], markets and fairs) ; (2) order and good government (cruelty to animals, betting and gaming, charities and charitable trust acts, inebriates, police other than Metropolitan Police, poor law and vagrancy, prisons, reformatories); (3) ecclesiastical matters (burial law, and matters affecting religious denominations); (4) agriculture and land (commons and en- closures, game laws, drainage, improvements, settled land acts, distress and tenure); (5) judiciary and minor legal matters (coroners, county courts, minor criminal offences [procedure, definition, and punishment], law of inheritance, intestates' estates, conveyancing and registration of land, minor torts, trustees, guardians, and wards); (6) education primary, secondary, and university (except Oxford, Cambridge, and London); (7) local government and municipal undertakings (county council and municipal bills, fire brigades, local legislation private bills, gas, water, and electricity undertakings municipal government, 82 NEW CONSTITUTIONS OF EUROPE will of the central government, it would be none the less intrinsically federal in character. including local franchises) ; (8) public health (preventive measures, contagious diseases, hospitals, housing, national health insurance, lunacy and mental deficiency). To the United Kingdom it was proposed specifically to reserve control over the following matters: (1) the Crown and matters relating thereto (succession to the Crown, regency, civil list, Crown properties, treasure trove); (2) peace and war; (3) navy, army, and air services; (4) foreign affairs and extradition; (5) dominions, colonies, and overseas possessions; (6) dignities and titles; (7) treason and alienage; (8) postal, telegraph, and telephone services; (9) submarine cables; (10) wireless telegraphy; (11) aerial navigation; (12) lighthouses, buoys, and beacons; (13) currency, coinage, legal tender, weights and measures; (14) trade marks, patents, and copyrights; (15) regulation of trade, banking, and commercial law (law of agency, banking, census of production, internal commerce, company law, bills of exchange and negotiable instruments, insurance companies, sale of poisons, bankruptcy, bills of sale, sale of goods, shipping and pilotage, quaran- tine); (16) fisheries, forestry, and certain agricultural services (forestry commis- sion, ordnance survey, import and diseases of animals, inland and sea fisheries, wild birds' protection; (17) industrial legislation (employers' liability and work- men's compensation, factories and workshops, industrial disputes, regulation of hours and wages, truck acts, law of master and servant, unemployment insur- ance, mines and quarries, trades unions, friendly societies, old age pensions, development commission); (18) railways and canals; (19) registration and cen- sus; (20) food regulations; (21) marriage and divorce; (22) vivisection; (23) major criminal offences (procedure, definition, and punishment); (24) major civil torts; (25) university education at Oxford, Cambridge, and at London; (26) Metropolitan Police. It was proposed that power over the following matters be exercised partly by the United Kingdom Parliament and partly by local legislatures: (1) corrupt practices; (2) explosives; (3) harbours; (4) acquisition of land for public purposes; (5) transport (roads and highways). It was proposed that all other matters not expressly enumerated in these lists should be reserved to the United Kingdom Parliament. CHAPTER V PROPORTIONAL REPRESENTATION IN ONE respect all of the new constitutions agree: they provide for the application of the principle of proportional representation. It is possible that this was in part the result of the provisions of the special peace treaties for the protection of the minorities. 1 These treaties, however, contained no mention of such matters as suffrage and representation; they were aimed not so much at securing political rights as at guaranteeing civil, religious, racial, linguistic, and educational rights. They sought equality before the law rather than equality at the polls. 2 More- over, the so-called minorities treaties could not account l " Among the achievements of the Conference a not unimportant place must be assigned to a series of separate treaties which were attached to, but distinct from, the main Treaties of Peace with Germany and the other enemy States. The parties to them were, on the one side, the Principal Allied and Associated Powers, viz., America, the British Empire, France, Italy, Japan; on the other side, Poland, Czecho-Slovakia, the Serb-Croat-Slovene State, Rumania, and Greece. These treaties provide for the protection of racial, linguistic, or reli- gious minorities included within the boundaries of the specified States; they also contain provisions for certain general principles affecting commerce and inter- course, and were so drafted as to include a formal confirmation of the recog- nition of Poland and Czecho-Slovakia as sovereign States. Almost identical are certain provisions which have been introduced into the Treaties of Peace with Austria, Hungary, Bulgaria, and Turkey." Temperley, Ed., A History of the Peace Conference of Paris, Vol. V, p. 112 (London, 1921). Chapter II of this Volume contains an excellent account of the origin and purport of these treaties. 2 "To sum up: the principle on which the Treaty [with Poland, which was the model for all the minorities treaties] is based is not that there is any right to impose upon an existing State any principle of government, however admirable, nor does it lay down as a general principle that it is incumbent upon any State to admit to the full rights of citizenship all inhabitants of its territories or de- termine the principles on which nationalization shall be allowed. It is much more limited. What the Great Powers do is in the act of assigning new terri- tories to an already existing State, or constituting a new State, to lay down con- ditions on which they transfer the territories to such State. These conditions are that all bona fide inhabitants of the territories in question shall receive full rights of citizenship and that in the future no distinction shall be made between citizens in consequence of difference of race, religion, or language." Ibid., Vol. V, p. 143. 83 Progress of pro- portional representa- tion since the war 84 NEW CONSTITUTIONS OF EUROPE Rapid spread in Europe Results of majority or plurality elections for the fact that during or since the war a number of the other states of Europe have adopted or extended schemes of proportional representation under their old constitutions. Indeed, it is little short of remarkable that this plan of electing representative assemblies, having made only a modicum of progress throughout the sixty or more years of its agitation, should suddenly have been widely accepted in Europe almost without disputation. Apart from certain local elections, it was, prior to the opening of the war, applied to the election of one or both houses of the national legislature only in Denmark (partial), Belgium, Sweden, 1 Bulgaria, 2 Serbia, and Portugal, 3 and to the elec- tion of the lower chamber in the Grand-Duchy of Finland. During the war it was extended in Denmark and adopted in Holland. Since the war it has been further extended in Denmark and adopted in Germany, France (modified), Italy, Czechoslovakia, Austria, Jugoslavia, Switzerland, Poland, Danzig, Esthonia, and Greece. The disproportionalities of result that obtain under the usual system of electing one or several representatives from a geographical district by majority or plurality vote are so well known as to require no recital here. 4 They are J For a description of the Swedish system, not outlined in this chapter, see Humphreys, Proportional Representation, Appendix III (London, 1911); E. von Heidenstam, "System of Proportional Representation," in Historical and Statis- tical Handbook, published by order of the Swedish Government, 2d. English ed, 1914 (J. Guinchard, Ed.). 2 An electoral law of 1909 introduced proportional representation into Bulgaria for departmental and municipal elections. In 1911 the national constitution was revised, and an experiment in proportional representation was inaugurated in the two departments of Trnvo and Philippopli. This was extended to all elections by a law of March 8, 1912. For a description of the simple list system adopted, see Blatter fur Wirtschaft- und Socialpolitik (Switzerknd, 1914); W. S. Munroe, Bulgaria and Her People, pp. 194197. 3 Minority representation by the plan of limited voting was adopted in Portu- gal by a law of August 8, 1901. When Portugal became a republic in 1911, this system, as applied to the lower chamber of the legislature, was retained for some of the districts, and proportional representation following the Belgian system (see below, pp. 92 S.) was applied to the four largest constituencies two each in Lisbon and Oporto. Senators are elected by a plan of limited voting. 4 For illustrations, see Humphreys, Proportional Representation, Chapter II (London, 1911); WUloughby and Rogers, op. cit., Chapter XV. PROPORTIONAL REPRESENTATION 85 a matter of common knowledge, being in fact merely a matter of common fractions. Over-representation or under-representation in proportion to the party vote is more usual than otherwise. Occasionally an actual minority wins a majority of the seats. Indeed, the possi- bilities of vagarious results are almost limitless. More- over, wholly apart from such results, it is perfectly mani- fest that even where a balance of inequalities as among districts operates to secure for a party its approximate share of the total number of seats, the voters of the party in districts that it fails to carry have no representative in the assembly for whom they themselves have voted. On the contrary, their entire district is in theory represented by a member or members of some opposing party. Above all, however, if political parties mean anything of value, they imply a grouping of the voters on the basis of opinions and beliefs. But the obvious fact is that a grouping of the people for purposes of representation on the basis of their places of residence results only to a limited extent, if at all, in grouping them with reference to their opinions and beliefs. In view of the complexity of human nature and of hu- man society, no doubt every scheme of representation involves something of artificiality. Inevitably it smacks more of device than of principle. But upon the commonly accepted hypotheses of politics, the logic of proportional representation is fairly unavoidable. It is usually as- sumed, for example, that the voters of a country are divided (or would divide if they were given adequate opportunity) into two or more relatively permanent groups each united by a common set of political beliefs and opinions, or upon a definite program of political action, or upon both opinions and program. 1 It is for the most '" Democracy really means nothing more nor less than the rule of the whole people expressing their sovereign will by their votes." Bryce, Modern Democ- racies, Vol. I, p. viii (New York, 1921). In this definition there is a clear as- sumption of a free and rational "will." Faults of geographical district groups Common assumptions of politks 86 NEW CONSTITUTIONS OF EUROPE Assumptions do not correspond to facts part assumed, moreover, that in the formation and activi- ties of these groups the voters act in purely voluntary and rational fashion. And it is further assumed that the purpose of representative government is to reflect the opinions and effectuate the program of a majority of the voters. 1 If happily an absolute majority form them- selves into a single-minded political group, this task ought to be relatively simple; but if the people divide into a number of more or less irreconcilable and contending groups, the task of compromise in the matter of belief, opinion, and program is obviously more difficult. These are some of the basic assumptions of politics in modern democracies. A complete consideration of their relation to facts would necessitate a detailed discussion of the origin, the purposes, and the operative methods of political parties. Such a discussion is impossible here. It is sufficient to say, perhaps, that in consideration of the number and complexity of the problems of modern government, it is open to question whether the people of any sizeable country do or can divide themselves on the basis of common opinions into two or three, or for that matter any small number, of more or less permanent and cohering groups. If they are to reach practical problems, group programs must of necessity be somewhat elabo- rate in character, and their very elaboration will of like necessity weaken the foundation of common opinions upon which the group presumably rests. It may be argued, indeed, that the complex character of modern life, with its rapidly changing and diversified needs and interests, offers no useful place for the large and perma- nent political party. Certain it is that a union of members upon the basis of genuine beliefs and a fairly stated pro- gram of action is by no means a universal characteristic 'But see the distinction that is sometimes drawn between "delegative" and "representative" government. Ireland, Democracy and the Human Equation (New York, 1921). PROPORTIONAL REPRESENTATION 87 of political parties. The more rigid the principles and the program of a party and the sharper its discipline, the more apt is the party to split upon the rocks of dissension as its numbers increase. The larger the party, the more necessary it is that it should have loose principles, a vague program, and lax discipline. This means that it rep- resents in less degree any genuine division of the voters. Thus it happens that the range and intricateness of the problems of modern government play into the hands of party leaders who naturally desire to increase the party membership. The result is attenuation of program and purpose, with a consequent weakening of the foundation of common opinion upon which the group in theory rests. In order to bolster up this crumbling foundation resort is had to the agency of organization. Party becomes an end rather than a means. The group must be preserved whether or not it has sufficient intellectual vitality and purpose to warrant preservation. In consequence it is sometimes difficult to say whether this or that group is held together chiefly by common opinions or by party organization and activity. Lord Bryce was not alone in thinking that party organization "has rendered some services, but far greater disservices," that "it is possibly the source of more evil than good." 1 Another distinguished commentator, Mr. Ostrogorski, has expressed the opinion that the day has passed when large and permanent political parties can perform any useful role in democracies. Arguing for their abolition and for the substitution of a scheme of imperma- nent, single-issue organizations, he says: Party as a wholesale contractor for the numerous and varied problems, present and to come, should give place to special organizations, limited to particular objects and forming and reforming spontaneously, so to speak, according to the changing problems of life and the play of opinion brought about thereby. ^Modern Democracies, Vol. II, p. 453 (New York, 1921). Weakening the theoretical foundation of parties Substitute of organization Ostrogorski opposes permanent parties 88 NEW CONSTITUTIONS OF EUROPE Citizens who part company on one question would join forces on another. The basic conditions for the corruption and tyranny engen- dered by the present party regime will disappear with their material foundation, which is permanence of organization, and their moral foundation, which is the conforming habit of the party adherents. The temporary and special character of the parties created on the new method will not permit of the enroll- ment and maintenance of those standing armies with whose help power was won and exploited. On the other hand, party "regularity" will no longer have an object: permanent homage is not to be paid to what is transitory. No longer able to rely on sentimental devotion to its name and style, party will have, in spite of itself, so to speak, to rest on the adhesion of minds and consciences to something well defined, to a clearly specified cause identified with a public interest. Enlisted in the exclu- sive service of that cause, party organization will revert to its function of means and will cease to be an end; formerly a tyran- nical master, it will have to become a docile servant. The problem contained in these propositions is certainly a most serious and complex one and requires thorough scrutiny. 1 But per- But whatever may be thought of the wisdom or un- wisdom, the effectiveness or ineffectiveness, of permanent exist political parties, they nevertheless exist and must be reckoned with in every democratic country. The two- party system, however unreasonable and illogical it may be in some of its aspects, has unquestionable advantages over a multiple party system in point of simplicity, re- sponsibility, and efficiency. It has been urged against proportional representation that it would tend to break up such a system; and probably there is considerable justifi- cation for the fear that it would do so. But to oppose proportional representation on such ground is to exalt expediency over principle. It is to admit that the two- party system perdures, not because the voters desire to divide into no more than two groups, but because they are offered no ready avenue of escape from such division. It 'Ostrogorski, Democracy and the Party System, pp. 441, 442 (New York, 1910). For a more elaborate discussion of this whole topic see his larger work Democ- racy and the Organization of Political Parties, Vol. II, pp. 651-695. PROPORTIONAL REPRESENTATION 89 is to confess that, contrary to all demagogic profession, the cohering agency of these groups is not so much common political opinions as it is something else a combination no doubt of tradition, of system, of organization, of size, of legal status, of civic indifference, and above all perhaps of shrewdness on the part of party managers in not balking active and widespread public opinion too boldly or too long and in keeping the two parties somewhat apart on public questions but not too far apart. Most of the states of Europe, new or old, did not have to consider the possible effect of proportional representation upon the two-party system. Such a system was unknown. In practically every country the voters were already divided actually or potentially into three or more groups. From Right to Left there ranged a series of minority parties, with the resulting necessity of securing majority action in the legislative body only by the unstable bloc, or coalition, of two or more of them. Govern- ment by coalition being inevitable, the introduction of proportional representation was inexorably logical. More- over, the Socialist parties had long advocated the system; and, by and large, the Socialists of varying hues were in nearly every state the most important minority. Innumerable schemes have been devised for accom- plishing the purposes of proportional representation. 1 But none of the new constitutions goes further than to require that elections shall be held according to the principle of proportional representation. Not even in broad outline do they prescribe any specific plan. The general scheme as well as its details are left to be supplied by electoral law. In view of the fact, however, that the several schemes constitute integral and important parts of the actual The two- party system Multiple parties in European states Constitu- tions establish principle of proportional representa- tion 'For a discussion of some of them see Humphreys, op. cit.; Commons, Pro- portional Representation (New York, 1912); Williams, The Reform of Political Representation (London, 1918). 90 NEW CONSTITUTIONS OF EUROPE The Danish system Recent extension in Denmark working plans of government, and that they cannot be studied from the constitutions themselves, it seems ad- visable, even at the necessity of some tedious detail, to describe as briefly as possible one or two of the old and a number of the new schemes that have been adopted. The Danish system deserves mention, not only because in its full application it is a very recent development, but also because it was in Denmark in 1855 that the earli- est scheme of proportional representation was actually launched. It was first applied to the popular election of the single-chambered Parliament (Rigsraad) of the King- dom of Denmark, Slesvig, and Holstein. But such whole- hearted application of the plan was shortlived. When Slesvig and Holstein were lost to Prussia and Austria, the Danish constitution of 1863, as well as that of 1867, re- tained proportional representation only for the indirect election of the upper chamber (Landsting). Electoral colleges were chosen in each constituency by the usual majority method; and these colleges used proportional representation (by the single transferable vote) in electing the members. In this limited form proportional representation re- mained static in Denmark for more than half a century. At length, in 1908, it was extended to municipal elections. And in 1915 it was adopted in diluted form from the elec- tion of members of the lower house (Folketing) of Parlia- ment; but the scheme was a hybrid a mongrel com- promise with the system of single member constituencies. 1 Employed in the parliamentary election of April 22, 1918, it disclosed serious disadvantages. In the spring of 1920 electoral reform was still on the tapis in Denmark when a ministerial crisis arose over the Slesvig question and a new parliamentary election was ordered. But the Socialists 24 Copenhagen members were elected by proportional representation; 93 members were elected in single member districts; and 23 additional seats were distributed so as to secure more approximate proportionality. PROPORTIONAL REPRESENTATION 91 refused to participate in another election under the law of 1915, which they claimed would force them into unwelcome alliance with the Radicals. Through the medium of a general strike they succeeded in compelling the formation of a "business ministry" which undertook to carry a new election law through the old parliament. Only a few days were given to considering the law of April 11, 1920; but in spite of this haste and of the turbulence of the period it appears to be a fairly well-conceived scheme. 1 Apart from the Faroes, which return one member, Danish Denmark (including Slesvig) is divided into 23 electoral law of areas (3 Copenhagen and 20 county areas), and these areas are divided into 117 nominating districts. Each area returns primarily one member for each of its nominat- ing districts. There are 31 additional seats for distribu- tion to the several parties, 2 making a total of 149 members. The names of the nominees are placed upon the ballot in party lists. In each nominating district the name of the party nominee from the district is placed first in the list and is printed in heavy type. The other names follow either in an order determined by the party managers or in alphabetical order. The voter may cast his ballot for the party list as it stands, or he may mark the name of a particular candidate, which operates to cast his vote for the list as well as to indicate his first preference. To this extent, therefore, the voters may alter the order of prefer- *For a description of the law and some comments on its operation at the elections of April, July, and September, 1920, see Zeuthen, "Denmark A Com- plete Victory for P. R.," Representation, No. 38, December, 1920, pp. 168 ff. "The Chief Electoral Officer "first divides 148 seats (i. e., 'ordinary ' and 31 'additional' seats) among the parties in strict proportion to their vote-totals for the whole country. The difference between the proportionate share as cal- culated and the number of 'ordinary' seats already gained gives the number of 'additional' seats for any party. The distribution is subject to the further condition that six must fall to the region of the capital, ten to the Islands, and fifteen to Jutland. The Chief Electoral Officer determines according to a pre- scribed method the number of additional seats each party shall hold in each of the three regions mentioned, and further allots the addition-seats obtained by each party to the P. R. area in which the party has the highest proportion of unrepresented votes." Ibid., p. 177. 92 NEW CONSTITUTIONS OF EUROPE Results of 1920 election The Belgian system ence determined by the party managers 1 as well repudiate the first-place position given to the local nominee. The distribution of seats to the several parties within each elec- toral area is made in accordance with the so-called d'Hondt system, 2 which, as will appear, is also used in many other countries of Europe. In the election which was held on April 26, 1920, the following results were obtained: The Liberals, with 350,407 votes, secured 48 seats; the Social- ists, with 299,892 votes, 42 seats; the Conservatives, with 201,031 votes, 28 seats; the Radicals, with 122,144 votes, 17 seats; the Trade Party (Conservatives), with 29,279 votes, 4 seats. 3 The proportionality was almost exact. The Danish scheme of 1920 was in many of its essentials modeled after that of Belgium. Indeed, it seems worth *By an amendment of June 28, 1920, a party in any county area may decide not to declare any order of precedence, in which case the elected candidates of the party are those who receive the largest number of individual votes. system is illustrated by Humphreys, op. cit., pp. 178, 179, as follows: "Let it be assumed that three lists have been presented; that they have obtained 8,000, 7,500, and 4,500 votes respectively, and that there are five vacancies to be filled. The total number of votes for each list is divided successively by the numbers 1, 2, 3, and so on, and the resulting numbers are arranged thus: List No. 1. 8,000 4,000 2,666 List No. 2. 7,500 3,750 2,500 List No. 4,500 2,250 1,500 "The five highest numbers (five being the number of vacancies to be filled) are then arranged in order of magnitude as follows: 8,000 7,500 4,500 4,000 3,750 "The lowest of these numbers, 3,750, is called the 'common divisor' or the 'electoral quotient,' and forms the basis for the allotment of seats. The number of votes obtained by each of the lists is divided by the 'common divisor' thus: 8,000 divided by 3,750 = 2 with a remainder of 500 7,500 " " 3,750=2 4,500 " " 3,750 = 1 with a remainder of 750 "The first list contains the 'electoral quotient' twice, and the second twice, and the third once, and the five seats are allotted accordingly. Each party obtains one representative for every quota of voters which it can rally to its support, all fractions of 'quotas' being disregarded." 'Figures taken from Representation, No. 36, May, 1920. while to outline the Belgian plan in brief detail in view of the fact that it is the oldest thoroughgoing system in Europe and in some respects may be regarded as the parent of many of the other systems. Proportional representation was applied to the Belgian House of Representatives and part of the Senate by an elec- toral law of December 29, 1899. Although this law has been amended a number of times since that date, the latest revision being that of 1919, 1 and although the prin- ciple of proportional representation was not written into the constitution until the revision of 1921, the original plan has not been altered in any important particular. 2 The country is divided into nine provinces; in each of these 3 or more Senators are elected by the provincial councils by a plan of proportional representation. The provinces are divided into arrondissements ; and another group of Sen- ators are popularly elected, in varying numbers, either from single arrondissements or from two arrondissements joined for this purpose. A third group are elected by these two groups, proportional representation being also used here. All the Representatives are elected by the voters of the several arrondissements, the number varying from 3 to 26. In the popular elections candidates are nominated in lists, the order being determined by the party or group that makes the nomination. The elector casts his vote either for a list as such (vote de liste), which means that he also approves of the preferences indicated by the order of names, or for a single candidate on a list (vote nominatif), 1 Dispositions du code Electoral modifiees et completees par lea loia du 9 Mai et des 17 et 22 Octobre 1919. s For discussions of the Belgian scheme see Georges Lachapelle, La reprexenta- tion proportionnelle en France et en Belgique (1911); T. Petit jean, La representa- tion proportionnelle devanl les chambres franyaises (1915); F. Goblet d'Alviella, La representation proportionnelle en Belgique; La representation proportionnelle integrate (1910); Barriety, La representation proportioned en Belgique (1906); Dubois, La representation proportionnelle soumise a I' experience beige (1906); Humphreys, op. cit., Chapter VIII and pwsim. In operation since 1899 Distribution and assign- ment of seats 94 NEW CONSTITUTIONS OF EUROPE which means that he votes for the entire list but that his first preference is for a candidate who has not been given first place on the list. The party vote is obtained by adding the ballots cast for the list and the ballots marked for any candidate of the list. The distribution of seats is made according to the d'Hondt system, which originated in Belgium. The assignment of seats to the candidates is made with reference to the order of names upon the list as well as with reference to the individual votes polled by the several candidates. 1 Provision is also made for the elec- tion at the same time and in the same manner of sub- stitutes (suppleants) . In the event of a vacancy in the office of a Representative or Senator during his term, his place is taken by the first substitute on his party list in his election unit. Results This thoroughgoing Belgian scheme of proportional of the representation has had longer trial than any other in Europe. On the whole it has had salutary results, not the least of which was to lessen the sharp and somewhat bitter division of the Flemish and Walloon districts be- tween the Catholic and the Liberal parties. It is not without its flaws and its critics. Owing to the fact that many of the election units are small (returning only two, 'Taking the same example as that given above (page 92, note 2), Humphreys says: "Assume that List No. 1 consists of three candidates, A, B, and C, ar- ranged in the order named, and that the 8,000 supporters of the list have given their votes as follows : Votes at the head of the List . . ' . . . . . 4,000 Preferential votes for A 500 " " B 500 ' C 3,000 Total . . ...'. . 8,000 "Candidate A, being the first in order on the list, has the first claim on the votes recorded for the list. The electoral quotient is 3,750, and A's total 500 is raised to this number by the addition of 3,250 votes taken from those recorded for the list. This secures his election, and there remain 750 list votes which are attributed to candidate B, this candidate being second in order on the list. B, however, also had 500 votes recorded against his name, and his total poll there- fore amounts to 1,250. But candidate C has obtained 3,000 votes, all recorded for himself personally, and as this total exceeds B's total of 1,250, C would be declared elected." Humphreys, op. cit., p. 181. PROPORTIONAL REPRESENTATION 95 three, or four members), and to the fact that no attention is paid to surpluses, there being no provision for a final na- tional distribution of seats based on compounded surpluses, representation is seldom if ever exactly proportional to the vote. The limited power that is given to the voter in the matter of expressing his preferences among candidates has unquestionably played into the hands of the party ma- chines; the actual choice of candidates almost invariably follows the predetermined choice of party managers as rep- resented in the order of names upon the ballot. While interest in politics has been increased, party discipline has also been quickened. But proportional representation is gaining, not losing, in Belgium. In 1895 it was applied in diluted form to communal elections. By a law of February 19, 1921, adopted almost unanimously, it was applied in full vigor to these as well as to provincial elections. 1 The local elec- tion scheme, however, differs in some respects from the national plan, especially in that the elector may vote for as many candidates as there are offices to be filled and may " split " his ticket. 2 J " Proportional representation is applied in Belgium to-day to the election of all our political assemblies the two chambers of our parliament (Senate and House of Representatives), our provincial councils, and our communal councils. . . . It is only in connection with the naming of the executive committees in the provinces (deputations permanentes) and in the communes (college des echevins) that the Belgian Parliament hesitated to apply P. R." Leon Dupriez, "P. R. in Belgium," Proportional Representation Review, January, 1922, p. 17. "'The law of February 19, 1921. established a new system which differs from that which was in force during the operation of the law of September 12, 1895, and from that which the Electoral Code has provided for legislative elections. "In principle, the elector may vote for as many candidates as there are seats to be conferred. " He may vote for all the candidates of one list accepting the order in which the candidates are written upon the ballot. In this case, he votes in the space at the head of that list. "He may vote for one or for several of the candidates of a single list. In this case, he votes in the spaces which are found at the side of the names of the candidates. "He may 'split his ticket' (panacher), that is to say, vote for candidates of different lists (for as many as there are seats to be Blled). In this case, he marks his vote at the side of the names of candidates that he intends to favor." Del- croix, Guide pratique pour lea flections communoles, p. 28 (Brussels, 1921). Recent extension in Belgium 96 NEW CONSTITUTIONS OF EUROPE The Finnish system "Compacts" of lists Proportional representation was made applicable to the Diet, or Landtag, of the Grand-Duchy of Finland by an electoral law of July 20, 1906, which was enacted in con- junction with the organic law of the Landtag of the same date. 1 The constitution of the Republic of Finland, of July 17, 1919, did not in any respect change the system that had previously been in force. The single chambered legislature (in Finnish, Eduskunta; in Swedish, Riksdag) consists of 200 members elected in 16 districts. The dis- trict of Lapland has only one member; the other districts return from 6 to 23 members each, the average being 13. Although the districts are large, no list may contain more than three names; and the voter may vote for only one list, although he may change the order in which the names have been presented by the party managers. Manifestly a sizeable party in a district returning 13 or 17 or 27 mem- bers could not reasonably be restricted to the nomination of three candidates. Permission is therefore given to combine these lists of three names into groups known as "compacts." In other words, the party puts up a series of lists, containing in all at least as many candidates as it can hope to elect in the district. The idea seems to be, not only that small groups of voters, perhaps united upon a transitory issue or a matter of local or specific interest, may nominate a list unaffiliated with any regular party, but also that there may be a degree of mobility and of consideration of local or special interests within the party ranks. But in view of the fact that a name may be placed in any number of lists whether within or without a particular compact (although the voter may not vote in more than one list and although no compact may contain more different names than there are seats to be filled) , it is needless to say that this flexibility lends itself more read- ily to party manipulation than to the encouragement of 1 For a brief account of events which led up to these enactments, see below, Chapter XIX. PROPORTIONAL REPRESENTATION 97 independent or insurgent candidacies. An unpopular can- didate fitted into a number of lists headed by popular candidates may easily be carried to victory. For the voter casts his ballot, not only specifically for the three candi- dates (usually in the named order, although he may change the order), but incidentally also for the entire compact. The method of counting the vote and of distributing seats is almost as complicated to describe as it is to ac- complish. 1 The details cannot be set forth here. 2 Suf- fice it to say that there is one calculation to determine the order of the candidates within the list, another to deter- mine the order of candidates within the compact, and a third to determine the order of candidates within the district, which in effect determines the distribution of seats. "In its internal party arrangement," says Mr. Humphreys, "the Finnish system shows boldness, orig- inality, and, it must be added, no little complexity of procedure." But, he adds, it "gives a greater freedom to the elector than the Belgian system." The Constituent Assembly that drafted the new Ger- man constitution was elected on January 19, 1919, under a system of proportional representation. 3 According to a "Cabinet" decree of November 30, 1918, the several ir The results of elections are not usually announced for two or three weeks. *For a full description see Humphreys, op. cit., pp. 314 ff.; J. Deck and G. von Wendt, "La representation proportionnelle et la recente loi electoral de grand- duche de Finland," Cahiers ae la Quinzaine (Paris), 9 serie, 4 au 7 cahier, cin- quieme cahier de la neuvieme serie. See also British Blue Book, Report of the Royal Commission Appointed to Enquire into Electoral Systems, 1910. 'Proportional representation Mas not wholly unknown in Germany before the revolution. It was applied to the election of certain members of the lower house in Wiirttemberg by a law of July 16, 1906, and to the election of the un- paid members of, municipal councils in cities of over 10,000 inhabitants by the WUrttemberg municipal code of July 28, 1906. In the same year it was applied to the election of 152 of the 160 members of the lower house of the legislature in the free city of Hamburg. In 1908 proportional representation was intro- duced in Bavaria as applied to municipal councilors. It was likewise applied to municipal councils in Oldenburg in 1907 (where, however, it was optional), and in Baden in 1910. In 1913 a proposal to use proportional representation in electing members of the Imperial Reichstag was defeated in that body by only one vote. In February, 1918, as an act of death-bed repentance, the Bundes- rat approved and forwarded to the Reichstag a bill increasing the size of the Complicated method of counting The German system of 1919 98 NEW CONSTITUTIONS OF EUROPE parties were empowered to nominate by petition in each electoral district or circumscription a number of candi- dates not to exceed the number of delegates assigned to the district. 1 The names of the candidates, arranged in the order determined by the nominating party, appeared upon the ballot in their respective groups or lists. The voter cast his ballot primarily for a party list. The count and distribution of seats followed the d'Hondt sys- tem. In its operation at the election this plan of proportional representation did not give complete satisfaction. Chief objection was raised to the matter of combinations of lists, which operated to the disadvantage of the parties of no compromise. It was demonstrated also, as the Belgian scheme had disclosed, 2 that the d'Hondt method, taking no account whatever of "remainders," worked to the advantage of the larger parties. In addition to this it was urged that the circumscriptions, or election dis- tricts, returning an average of eleven deputies each, were far too large. 3 In January, 1920, the Ministry put forward for discus- sion three different proposals for an application of what came to be known in Germany as the Baden system of proportional representation. Article 22 of the new Baden constitution provided that "each party or group of elec- tors shall have one deputy for each 10,000 votes cast for its list of candidates. The votes remaining unused in each circumscription shall be totaled for the entire country and distributed in accordance with the foregoing principle. Reichstag and providing for proportional representation in the election of 80 members from 26 electoral districts. The bill was adopted by the Reichstag but never went into effect. ^or the text of the decree and some particulars in respect to the election, see Representation, No. 33, March, 1919. 2 Humphreys, op. cit., pp. 188 ff. 3 For a discussion of these criticisms, as well as of the projects proposed by the Ministry and the scheme finally adopted, see Brunet, The New German Con- stitution, pp. 103 ff. (New York, 1922). PROPORTIONAL REPRESENTATION 99 Every remainder of more than 7,500 votes shall be given one seat." It is unnecessary to discuss in detail the differences con- tained in the three proposals of the Ministry. As a result of the attempted coup d'etat of the militarists in March, 1920, a ministerial crisis arose which precipitated the elec- tion of a new Reichstag on June 6. The electoral system had to be reformed immediately, if at all. The imminence of the election, if nothing else, made it unwise to undertake the redistricting that was involved in the Ministry's pro- posals. The scheme that was adopted, therefore, was not identical with any of them. The German system may be described as an " automatic ' ' system. The number of members of the Reichstag and the number of members per district are fixed neither by the constitution nor by statute. They depend upon the number of votes that are cast, one deputy being assigned for every 60,000 votes cast for a list. The total number of members, therefore, and the number from each district are determined after the fact of the election. The several parties nominate lists for each of the 35 circumscriptions into which the territory of the Reich is divided. If the parties desire to do so, they may associate their lists in neighboring circumscriptions into a "union" of circum- scriptions; 1 17 of these unions of circumscriptions are established by law. In case a party associates its lists in one of these unions, a first distribution of seats is made upon the basis of the circumscription vote in the ratio of one to 60,000 votes. Thereafter the surplus, or fractional, votes in the several circumscriptions of the union are added together to make a union total for each party ; and for every 60,000 votes in this total the party is given an "unions" are quite different from the Finnish "compacts"; for in Germany the party is not limited to the nomination of three names upon a list, but many nominate a full set of candidates. Moreover, the "union" is a union of election districts, whereas the Finnish "compacts" are unions within one election district. Immediate action necessary The "automatic'' system adopted Circum- scription "unions" 100 NEW CONSTITUTIONS OF EUROPE additional seat. There is, however, no separate list of candidates for such unions; the seats are assigned in order to the next candidates on the circumscription list that furnishes the largest number of surplus votes. Finally each party must associate its circumscription lists with a national list nominated by the central managers of the party. Surplus votes from the several unions are then totaled for the entire country, and seats are assigned in the same ratio to this national party list. If the party has not created circumscription unions of its lists, the surplus votes go direct from the circumscriptions to make up the national total. Two qualifications to the above-mentioned rules must be noted. If a party has united its circumscription lists, such unions are of no avail unless at least one-half of the quota of 60,000 votes has been polled in at least one single constituency. This is true even though the total of the party's surplus votes for the several circumscriptions of the union is more than 60,000. The manifest object of this provision is to put weak and scattered parties at a disadvantage; it is to discourage the formation of "freak" parties. The second qualification of the general rule is that no party may elect from its national list a larger number of members than it has elected from its circum- scription lists. Here again the result is to prejudice a party of inconsequence. But the primary purpose of the provision is to prevent a party from being represented in major part by candidates who are the choice of the national party machine rather than by those who are nominated and voted for locally. The introduction of the intermediate unions between the circumscription lists and the national list was likewise directed to the end of weaken- ing the central party control. 1 1 "In trying to apportion the votes cast by the electors for the National Assem- bly according to the mechanism provided by Project A [one of the projects of the Ministry which provided for no unions of circumscription lists], it was seen PROPORTIONAL REPRESENTATION 101 In the election of June 6, 1920, the Communist party suffered from both of these "penalties." They polled 4,381,000 votes, which was seven times the quota; but they secured only two seats, partly because their unions were of no avail, and partly because, having secured a scat in only one circumscription, they could be allotted only one seat from their national list. On the other hand, the vote of the larger parties was very accurately reflected in the number of seats they obtained. The Social Democrats polled 21.6 per cent, of the votes and secured 22.2 per cent, of the seats. The German Democratic party polled 8.5 per cent, of the votes and secured exactly the same per- centage of seats. The German National People's party polled 13.9 per cent, of the votes and obtained 14.1 per cent, of the seats. The Independent Socialists, with 18.8 per cent, of the votes, filled 19.1 per cent, of the seats. 1 It must be recognized, of course, that this German system places immense power over the personnel and the relative chances of candidates in the hands of the party organizations far greater power, for example, than does the Belgian system. The voter can express no preferences whatever; he must take the candidates in the order in which they are presented to him. Moreover, a number of seats are assigned from a national list that is not presented to the voters at all. On the other hand, this national list not only assists toward exactitude in the matter of propor- tionalities (by compounding surpluses from all over the country) but also makes it possible for parties to assure the election of leaders who might otherwise be defeated in particular circumscriptions. Like most expedients cf politics it has both advantages and disadvantages. that 18 per cent, of the members of the Reichstag, that is nearly one-fifth, would be elected on the ticket for the Reich, and it was estimated that such a result in the elections of future Reichstags would be but little compatible with the consti- tutional principle of the direct vote. It was decided in rejecting 'group-of- district tickets' to create, nevertheless, groups of districts." Brunei, op. cit., p. 108. J For an analysis of the vote, see Representation, No. 37, August, 1920. Results in 1920 election Effect of national lists Proportional representa- tion in the German states The Italian system of 1919 Method of voting 102 NEW CONSTITUTIONS OF EUROPE The German constitution prescribes that the principles of proportional representation shall be applied, not only in the election of members of the Reichstag, but also in the election of members of the state Landtags. 1 The states, therefore, have no option in the matter. The Prussian electoral law of December 3, 1920, establishes a scheme of elections that is practically identical with that of the Reich. 2 The main principles of the system have been applied also to the election of the municipal council of Greater Berlin, although in these municipal elections no provision is made for the grouping of wards into unions. By a law of June 30, 1912, manhood suffrage was in- troduced in Italy, the number of electors being increased from three and a half to more than eight and a half millions. By a law of August 15, 1919, proportional representation was applied to the election of the 508 members of the Chamber of Deputies. 8 The Italian scheme provides for the election of not less than ten deputies from each election district, the districts being formed of provinces or groups of provinces. The largest districts are Milan, Turin, and Naples, returning respectively 20, 19, and 17 deputies. Lists of candidates are nominated by from 300 to 500 electors; a list may contain fewer but not a greater number of names than there are seats to be filled. The voter is given a ballot which, prepared by the nominating party, contains in a circle printed on each side the party em- blem but the names of no candidates whatever. Instead of names there are a few dotted lines, in number equal roughly to one-fifth of the members to be chosen from the district. Upon these, if he can write, and if he happens to know and J Art. 17. See also the Prussian constitution, Article 33. *Prcussische Gesetzsammlung, 1920, pp. 559 S. 3 In November, 1918, a bill of Deputy Camera proposing the introduction of the scrutin de liste in place of the single member constituencies was referred to a parliamentary committee. This led to an elaborate report on the whole subject of proportional representation and the presentation of a bill on the sub- ject. Camera dei Deputati. No. 1065- A. Relazione delta Commissione Sulla proposta di legge d'iniziatwa del deputato Camera. March 8, 1919. PROPORTIONAL REPRESENTATION 103 to remember the nominees of his party, the voter may inscribe, in the order of his preference, as many names as there are lines; and having done this on one side of the ballot, he must repeat the process on the other side. Otherwise, without marking the ballot at all, the voter may deposit the ballot of his party and thereby cast his vote for the list, which is actually before him only in the form of an emblem; he thus records himself as being in favor of the order in which the names have been officially nominated. More than half of the voters of Italy are illiterate. One can readily understand, therefore, the mechanism of a ballot that requires no marking. It is more difficult to understand, however, why the literate voter should be put to the maximum of difficulty to express his preferences among the candidates ; he must not only commit the names to memory or personal memorandum, but he must also write them down twice on the ballot. The law also per- mits a kind of panachage. If the voter does not express preferences by writing the names of candidates of his own party, and if his party has not nominated a full ticket, he may write on the dotted lines the names of candidates of another party to a number equal to the difference between the number of members to be elected and the number of candidates that his own party has nominated. In this case, therefore, the voter must remember, not only names, but also the number of vacant places upon his party list. In determining the number of votes that go to the party list, all of the ballots containing the party emblem are first counted. To these are added the "additional votes" resulting from panachages, these additional votes being determined by dividing the number of them by the number of seats to be filled. 1 Needless to say, perhaps, 'If, for example, ten members are to be chosen, and if a voter of party A writes the name of a candidate of party B upon his ballot (party A not having nomi- nated a full ticket), his ballot is counted as a whole vote for party A and as a one- tenth vote for party B. Panachage The count 104 NEW CONSTITUTIONS OF EUROPE Assignments of seats Results in 1919 election the number of these additional votes will probably not often be sufficient to affect net results. The distribution of seats among the parties is thereupon made by applying the d'Hondt rule. The determination of the order of election is strikingly different from that which prevails under the Belgian system. To the first name is not given the number of list votes that are necessary to make up the quota. On the contrary, the entire list vote is given to every candi- date. To this is added his preference votes and his "additional" votes. It is these latter, therefore, that determine the order in which candidates are declared elected to the seats which the party has won. Relatively speaking, the number of preferential and additional votes will probably be small; at least, this was the result in the election of November, 1919. Certain it is that the order of election will always be determined by the literate ele- ment of the voters; for preferential and additional votes can be cast only by the writing of names on both sides of the ballot. It has been said of the election in 1919, which was the first election held under proportional representation and the second under the manhood suffrage law of 1912: "The outstanding feature is the large increase in the Socialist representation. . . . The contrast . between North and South has been mitigated and reduced to a correspondence with realities. Of the deputies who served in the last Chamber only 305 presented themselves for election, and of these one- third were defeated. Thus a large quantity of fresh blood has been infused into the Chamber. On the whole, the Italian Parliament is now much more representative of all the interests and phases of national life than it has ever been before." 1 l " Italy The First General Election under P. R. Just and Inclusive Representation Secured," Representation, No. 35, January, 1920, pp. 20 ff. In this article the working of the system is described, and the text of the law is given. PROPORTIONAL REPRESENTATION 105 In France proposals to substitute the scrutin de liste for the scrutin d' arrondissement and to apply a plan of proportional representation to the election of members of the Chamber of Deputies have been agitated for many years. 1 But down to 1919 the Senate was unswerving in its opposition to every such proposal. In the immediate aftermath of the war, however, electoral reform was taken up by the French Parliament, and on July 12, 1919, a new electoral law was enacted. 2 This law is a bungling make- shift, a product of compromise between irreconcilable ideas, "un melange incoherent" as the Journal des De- bats expressed it. The feature of proportional rep- resentation is so emasculated as to be scarcely recogniz- able. It can operate under certain circumstances; but at best the scheme is curiously inapt, inequitable, and illogical. The department has been substituted for the arrondisse- ment as the election district; 3 each department returns one deputy for every 75,000 inhabitants and an additional deputy for a majority fraction of that number; but in no case may a department return less than three deputies. 4 The departments vary widely in this matter; some depart- ments return only the minimum, but the department of the Nord elected 23 deputies in 1919. Nominations are made in lists which may vary in names from one to the number of seats to be filled. But the voter does not cast his ballot for a list as such, either by one mark that signifies his ad- herence to the list, or by marking one name on the list and thus implying a list adherence. On the contrary, he votes J Sait, Government and Politics of France, pp. 146 ff. (Yonkcrs, 1^20). text of the law see below, Appendix II. 8 The law permits a division of populous departments into districts returning not less than three deputies each. 4 For the election of 1919 the existing apportionment of seats among depart- ments was retained. With the 24 seats assigned to the 3 departments in Alsace- Lorraine, the total number was 626. The French system of 1919 "Un melange incoherent" Method of voting 106 NEW CONSTITUTIONS OF EUROPE Election by majority vote When pro- portional representa- tion oper- ates for specific candidates; and he has as many votes as there are seats to be filled, though he need not exercise his full rights in this regard. He is not restricted to voting for names in any one list but may "split the ticket" (pana- chage). The number of voters in the district is determined by the number of ballots cast. Any candidate who receives a vote on an absolute majority of these ballots is declared elected. In other words, it is quite possible for a bare majority party to nominate a full ticket, to urge its electors to vote for every name on the ticket, and thus to secure the election of its entire delegation by a simple majority vote for each of its candidates. In the election of November, 1919, this is precisely what happened in a large number of departments; for in many instances the parties of the Right and Center coalesced in order to create a more or less fictitious absolute majority against the extreme Socialists. 1 This is not proportional rep- resentation at all; it is the old familiar block system in the multiple member district. Its result exactly the reverse of the Italian result was to decrease the representation of the Socialists, although their rela- tive strength among the voters showed considerable in- crease. The proportional feature of the law comes into play only if the number of deputies to which the department is entitled are not elected by absolute majority votes. In such case an electoral quotient is obtained by dividing the number of ballots by the number of seats; and a list average is obtained for each list by adding the number of votes polled for the several candidates of the list and dividing the total by the number of candidates. In other words, the theory is that the average number of votes per *In consequence, "the Unified Socialists polled 1,700,000 votes, or roughly one-quarter, and have won 70 seats, about one-ninth. In 1914 the party polled 1,100,000 votes, or about one-sixth, and obtained over one hundred seats." Representation, No. 35, January, 1920, p. 35. PROPORTIONAL REPRESENTATION 107 candidate is approximately the number of voters support- ing the list. A primary distribution of seats to the several lists is then made by determining how many times the electoral quotient is contained in the list average, frac- tions being ignored. A secondary distribution, if neces- sary, is made by awarding all the remaining seats to the list having the highest average vote. Within the lists the seats are allotted to the candidates in the order of their respective number of votes. It is doubtless unnecessary to point out not only that this scheme does not secure anything approaching exact proportionality but also that the secondary distribution of seats greatly favors the largest party in the district. Moreover, the assignment of seats to candidates in the order of their votes is an almost chance arrangement, if indeed it does not lend itself to the worst kind of political chicanery. In most instances the candidates on any list will receive nearly equal votes. Unpremeditated differences may result from carelessness on the part of some voters, from the occasional splitting of tickets, especially by the voters of a party that has not nominated a full ticket, and from the isolated likes and dislikes of in- dividuals. But it is easy to see that, where it can be assumed that the candidates of any list will be very nearly on a par as to votes, a relatively insignificant number of voters, whether within or without the party, can by con- certed action wield an enormous and wholly unjustified influence for or against a particular candidate. On the other hand, a voter of this or that party can indicate a preference for this or that candidate of his party only at the expense of his vote for the list as such; he must "scratch" other names and thus lower the list average in order to express a preference. It can scarcely be believed that this muddled electoral system will remain long unaltered in France. It is neither one thing nor another. In quieter tunes it is Faults in method of assigning seats A muddled system The Czecho- slovak system of 1920 National lists certain to invoke constant hostility and not without reason. In Czechoslovakia proportional representation was provided for by a law of February 29, 1920. There are 23 parliamentary constituencies each of which returns from 6 to 45 members of the lower house of the legislature. The parties nominate lists of candidates, the several lists being printed upon separate but uniform ballots. The voter has no opportunity but to vote a straight party ticket; it is the system of the "strictly binding lists"; and the order of precedence of the candidates is fixed by the nominating party. Even if one or all of the names are "scratched" the ballot is nevertheless counted for the en- tire fist as it stood. The sum of all the valid ballots of all of the parties is divided by the number of seats assigned to the district. This "electoral number" or quotient is then divided into the sum of the ballots of each party; and the parties are allotted seats in accordance with the resulting numbers. Thereafter the surpluses of all the parties from all of the constituencies are added together to make a grand total of surplus votes for the entire coun- try. 1 This total is divided by the number of seats that remain unallotted and to this quotient one is added. This number is the "electoral number" or quotient for the second scrutin. It is divided into the total surplus votes of each of the parties, and seats are allotted accordingly. The candidates to whom these seats are given are taken from lists which have been drawn up by the several parties after the first allotment of seats in the constituencies, which lists consist exclusively of names of candidates who have unsuccessfully stood for election in the constituencies. The order in which they are presented on the list is a mat- ter determined wholly by the party managers. If there 'The surplus votes of a party which has not obtained 20,000 votes (or the electoral number, if that is less than 20,000) in at least one constituency are not included in this total. PROPORTIONAL REPRESENTATION 109 still remain seats to be filled, these are assigned to the parties having the largest numbers of unused fractional votes. The members of the Senate in Czechoslovakia are elected in precisely the same manner. There are, how- ever, only 13 senatorial constituencies, these being com- posed in general of two deputy constituencies. They severally return from 4 to 23 senators. This system of proportional representation is notable for its simplicity. 1 Moreover, it will probably result in obtaining almost exact proportionality. It may be chiefly criticized no doubt because of the very great power that it vests in the party machines. The voter is not only put into a strait-jacket of party control of nomina- tions and of party regularity in voting, but he is also, as in Belgium and more recently in Holland, compelled to vote no matter how much he may object to the alternatives that are proffered. The first election under the system was held in 1920 April 18 for the Chamber of Deputies and April 25 for the Senate. The principal parties that participated were the National Democrats, Agrarian, Popular (Conservative and Catholic), and the Socialists. 2 In Switzerland proportional representation was first introduced in the canton of Ticino in 1891, where it was made applicable to practically all elections within the canton. Gradually the system was adopted in numer- ous other cantons for cantonal and municipal elections. 3 In 1900 and again in 1910 amendments proposing to apply proportional representation to elections to the National Assembly, the lower house of the central legislature, were defeated at the polls. Vote on a similar amendment, J The details of the system are briefly described by V. Joachim in an introduc- tion to The Constitution of the Czechoslovak Republic (Edition de la Soci6t6 1'Effort de la Tchecoslovaquie, Prague, 1920). ^Representation, No. 36, May, 1920. *It is now found in 18 of the 22 cantons. Encourages party control The Swiss system of 1919 "Cumul officiel" "Cumul prive" 110 NEW CONSTITUTIONS OF EUROPE proposed by initiative petition for a referendum in 1914, was deferred by reason of the war until October 13, 1918, when it was adopted by an overwhelming majority. Only the principle was written into the constitution; the specific plan was elaborated by a law of February 14, 1919. The first election under the system was, by a transitional con- stitutional amendment, advanced from 1920 to October 26, 1919. By the new law the 25 cantons and half-cantons are made the election units, returning from 1 to 16 members each Vaud 16, Geneva 8, Neuchatel and Fribourg 7 each, Valais 6, and so on. Nomination is by lists bearing party designations, which lists may contain a full ticket of nominees or a less number of names. A single name may be given two places, but not more than two, upon a list (cumul officiel) .* Separate ballots are printed for each party list. 2 The voter may deposit an unaltered ballot; he may "scratch" (biffer) one or more names upon his party ballot; he may substitute for scratched names, or he may complete an incomplete list, by writing on his ballot the names of candidates of other parties (panachage) ; or finally, he may cumulate two votes (but not more than two) for one or more candidates by writing the names of such candidates a second time upon the ballot (cumul ir rhe reasons for this provision have been explained as follows : "First. It was desired to institute a corrective for panachage; it was feareu that some individuals would be given the word to 'scratch' certa;6 candidates of their party and thus run them ashore; it was feared also that some electors of party A would 'split' their votes in favor of the weaker candidates of party B and that the latter would thus be placed in first rank on the B list to the det- riment of the leaders of the party. These mano3uvres might result in the elec- tion of candidates little known or of little value and in ousting the party leaders. "Second. It was desired also that a party or rather the group of electors who prepare the list should be able to indicate which of its candidates it pre- ferred and desired to see elected in any case. "Third. Finally it is in the interest of small parties to have in their lists as few blank lines as possible." Krafft et Leresche, L'Slection et le renoutellement du Conseil National d'apr&s le systeme proportionnel, p. 9 (Lausanne, 1919). 2 Blank ballots are also provided; but the use of these and their effect upon the count need not be described. PROPORTIONAL REPRESENTATION 111 prive). 1 The total votes of the several parties, upon which the distribution of seats depends, consist of two distinct kinds of votes. In the first place, one vote is counted for the party for every vote given to any candidate of the party, whether on the party ballot or on the ballot of some other party by panachage (suffrages nominatifs). In the second place, what are known as complementary votes are accredited to the parties (suffrages complementaires) . These are the number of votes that are necessary to com- plete a full list on each ballot, whether because the party has not nominated a full ticket, or because the voter has scratched names without substituting others, or because he has written in the names of persons who have not been nominated by any party. 2 The electoral quotient is determined by dividing the total votes (nominatifs and complSmentaires) of all the parties by one more than the number of seats to be filled. 3 The several parties are then 1 The cumul price" "enlarges the freedom of the voter"; but it has been de- nounced as "favoring the manoauvres of a small coterie within a party." "This objection loses much of its force because of the permission granted to the parties to "cumulate" upon the printed list the candidates whom the party prefers." Krafft et Leresche, op. cit., p. 18. 2 "The system of complementary votes, already in force in the laws of Geneva and Neuchatel, was introduced in order not to do injury to small parties. Sup- pose that in an arrondissement there are 8 deputies to be elected and that there are two parties, party A having 5,000 adherents and party B having 10,000. Party A nominates 4 candidates and party B 8. Party A obtains 5,000 X * = 20,000 nominative votes, and party B, 10,000 X 8 = 80,000. If party A could not have the additional benefit of complementary votes, party B, having four times as many votes, would have four times as many representatives, although it counted only twice as many electors as party A. This injustice could have been corrected in three ways other than that adopted by the law: (1) by permit- ting unlimited cumulation (the parties would thus always have the possibility of presenting complete lists); (2) by distributing the seats according to the number of lists drawn from the ballot box (system of competition between list votes [concurrence des suffrages de listes] used in the cantons of Soleure, Saint- Gall, Zoug, Lucerne, and in the canton of Valais for communal elections); (3) by dividing the number of votes of a party by the number of names that it carries upon its list. For various reasons, which we cannot consider summariz- ing here, these three systems were rejected." Krafft et Leresche, op. cit., p. 19, n. 2. 'Naturally the result is a large figure; it does not at all correspond to the quotients or quotas under systems which count each party ballot as giving only one party or list vote. For in Switzerland each elector, generally speaking, is regarded as having cast for one or more parties a number of votes equal to the number of deputies to be elected from the canton. Allotment of seats to parties 112 NEW CONSTITUTIONS OF EUROPE Assignments of seats to candi- dates Results of 1919 election allotted as many seats as the electoral quotient is con- tained in their respective totals. If after this allotment some seats remain to be filled, the plan is followed of redividing the total of each party by one more than the number of seats that have already been allotted to the party; and the remaining seats are assigned to the several parties in the order of the resulting quotients (quotients definitifs). 1 The candidates are assigned to seats in accordance with the numbers of their individual votes. 2 The differences between the votes of candidates of the same party will result from the cumul officiel, from the cumul prive, from the scratching of names without substitution, and from panachage. The differences will be large or small in ac- cordance with the extent to which these several practices are followed. It is at least possible, however, that they may be determined by the action of relatively small groups of voters. It was said of the election in October, 1919: "Propor- tional Representation has made it possible for it [the Socialist group] to obtain the number of seats to which the number of its adherents entitles it. One may regret that the number of its adherents is so high. One may de- plore particularly that a crowd of functionaries who are not at all Bolshevist voted for the most extreme Left. But one ought not to regret that a party obtains the l This seems to be merely a complicated way of awarding the seats to the par- ties having the highest surpluses after the first distribution. It is known as the Hagenbach-Bischoff rule. As Mr. Humphreys has shown, its results are identical with results under the d'Hondt rule. Op. cit., Appendix XI. z Where large complementary votes have been added to the nominative votes the total vote of even the leading candidate will naturally be much smaller than the electoral quotient; for complementary votes do not count for any specific candidates. A candidate whose name has been printed twice upon the ballot by the nominating party is not declared elected unless he has received a number of votes equal to the average vote of his party candidates. In other words, the voters may by generous scratching of such a candidate defeat the effort of the party managers to guarantee his election; but to that extent they also lower the party total. A candidate whose name has been printed only once upon the ballot cannot be assigned a seat unless he receives at least one-half of the average vote of the party candidates. PROPORTIONAL REPRESENTATION 113 representation to which it has a right according to its numerical force. By securing an equitable parliamentary representation the Socialists lose all pretext to have re- course to unconstitutional action." 1 In the spring of 1922, while the constituent assembly of Poland was still acting as a provisional parliament, an electoral law for the permanent Parliament was brought to its third reading. 2 This bill proposed that the 408 deputies of the lower chamber (Sejm) should be elected in 69 electoral districts returning from 4 to 16 members each an average of 6 deputies per district. Nominations are made by district lists; and after the determination of the electoral quotient and the allotment of seats in the dis- tricts, the surpluses for each party are added to make a party total for the entire country. Seats are thereafter allotted to the several parties from their national lists. 8 ^Journal de Geneve, October 28, 1919; quoted in Representation, No. 36, May, 1920. The election results were as follows: PABTT VOTES POLLED SEATS WON SEATS IN EXACT PROPORTION Radical-Democrat 213,653 61 53 Socialist (including Grutleans) . People's, Catholic and Conservative Peasant, Artisan and Middleclass Liberal-Democrat Democratic and Labor 197,458 157,186 144,538 28,497 12,193 43 41 29 9 4 49 39 36 7 3 Evangelicals 6,031 1 1 Union Helvetique 2,360 1 1 Total 761,916 189 189 This proposed law is briefly outlined in Weekly News Release Issued by the Polish Bureau of Information, May 31, 1922 (New York). It was merely a proposal of law and therefore may have been changed in some particulars before 6nal enactment. 'From the only summary of the law that is available at this early writing it does not appear: (1) whether the voter is limited to voting a straight ticket or may mark preferences; (2) whether the d'Hondt or some other rule is applied; (3) how the district quotient is ascertained; (4) how the national quotient is ascertained; (5) whether the national lists are prepared before election or are made up of candidates not elected in the districts; (6) nor how the final seats are allotted in case some seats remain unfilled after applying the national quo- tient. The Polish system proposed in 1922 114 NEW CONSTITUTIONS OF EUROPE Proportional representa- tion in other Euro- pean states It is provided, however, in order to discourage parties of little consequence, that no party may be assigned a seat from its national list unless it has secured one or more deputies in at least three districts. This provision is of special importance in Poland because of the large number of miniature parties that exist. It will no doubt operate to force some of them out of existence or into affiliation with stronger groups. 1 The 102 members of the Senate are elected by a similar system of proportional representation in the 17 voyvod- ships into which Poland is divided, each voyvodship returning a number proportionate to its population. By the constitution, however, the electorate for the Senate is smaller than for the lower chamber, for the age require- ment is thirty years instead of twenty -one. 2 Proportional representation was adopted in Norway in 1919, and the first parliament (Storting') was elected under it in October, 1921. In 1917 the principle was by amend- ment of the constitution applied to the Holland Chamber of Deputies, 3 though not to the Senate, 4 and the principle was elaborated by an electoral law promulgated in Novem- ber, 1917. In Austria the constituent assembly which met on March 4, 1919, was elected by proportional repre- sentation, and the requirement of the constitution to this end was met by electoral laws of July 20, 1920. 5 The Jugoslavian electoral law of September 3, 1920, provided a list system of proportional representation with a unique >In the constituent assembly there were fifteen parties; but eight of them constituted nine-tenths of the membership, and these eight fell into four prin- cipal groups. 2 Art. 12, sec. 2; Art. 36, sec. 2. 'Constitution of Holland, Art. 143. *The 50 Senators are elected from the 11 provincial states in numbers ranging from 2 to 10. One-third of them are elected every three years. Under this system it would have been impracticable to apply proportional representation to the election of Senators in most of the states. 'Staatsgesetzblatt, 1920, Xos. 317, 351. PROPORTIONAL REPRESENTATION 115 plan of casting ballots. 1 The Esthonian and Danzig systems embody no unusual features. The short-lived Russian constituent assembly, which was elected under the Keren sky Government in November, 1917, was chosen by a scheme of proportional representation closely follow- ing the Belgian plan; 2 but proportional representation finds no place in the Soviet constitution. It seems unnecessary to outline here each of these several systems in detail. Like the systems sketched above, each has its own peculiarities; but none of them contains any feature of importance that is not found in one or more of the plans already described. These serve to illustrate practically all of the principles involved as well as most of the striking differences cf mechanism. The principle of proportional representation is mani- The festly no longer a political issue in most of the countries principle of Europe; it is an accepted phenomenon of the new era. an issue Doubtless the several schemes will be revamped from time to time as weaknesses and injustices are disclosed. But the principle itself is not likely to be abandoned. What its actual fruits may be only the future can reveal. Wise or unwise, reasonable or unreasonable, it will, of course, be no panacea for the desperate illness of Europe. In- deed, for peoples who are tyros in the high art of self- government, it has, despite its logic, some obvious dis- advantages; for as Lord Morley has remarked: "But this is not to say that the State will be fortified in its tasks by special electoral devices with a scent of algebra and decimals about them. These are not easily intelligible ^'In each polling-booth there are placed voting-urns on which are posted the names and possibly some pictorial designation of the party lists. Each elector on his arrival is handed by the returning officer an electoral token sufficiently small to be completely concealed in a closed hand. The voter proceeds to the urns and inserts his hand in each in turn, dropping the token in the urn of his own party." Representation, No. 38, December, 1920, p. 182. There were 73 electoral districts returning varying numbers of delegates. The largest district returned 36. The total number was 730. 116 NEW CONSTITUTIONS OF EUROPE either in principle or working to plain men; they are more likely to irritate than to appease, to throw grit instead of oil among the huge rolling shafts and grinding wheels of public government." 1 Worley, On Politics and History, pp. 197, 198 (New York, 1914). CHAPTER VI FUNCTIONAL REPRESENTATION FUNCTIONAL, occupational, interest, or class representa- Functional tion by whatever name it is called is by no means a re P resen - modern idea. Indeed modern systems of representation ^ old idea in Europe were in most instances evolved out of the rep- resentation of three or more distinct classes or estates the nobility, the clergy, and the commons, for instance which estates were, at least originally, usually represented in separate bodies. Survivals of this kind of representa- tion were found in a number of the upper chambers of Europe before 1918 and are still found in the English House of Lords and to a less degree in such a second chamber as the Italian Senate. 1 Needless to say also the ownership of property as a qualification for suffrage and for office-holding has played an important role in the history of representation, the most significant modern in- stance having been in Prussia under the famous three- class system of voting. 2 Prior to 1907 members of the Austrian lower house (Abgeordnetenhaus] were chosen by five classes of voters, at least two of which the cham- bers of commerce and the great landowners 3 could very properly be said to have been "functionally" represented. Other instances might be cited, but these are sufficient to demonstrate the venerable character of the general idea of functional representation. 4 iArt. 33. 'See below, p. 214. 3 The other classes were the cities, the rural communes, and a general class. See below, p. 249. 4 For an interesting discussion of the subject, see Beard, The Economic Basis of Politics, pp. 46 ff. (New York, 1922). 117 118 NEW CONSTITUTIONS OF EUROPE Theoretical proposals Benoist Duguit G.D.H.Cole The Webbs With the advent of the modern industrial era functional representation of a somewhat different kind has been pro- posed by many political writers. For the most part, however, their proposals have been vaguely theoretical. They have not often specified and defined the groups to which representation should be given; nor have they at- tempted the even more difficult task of allotting represen- tation to the several groups they have in mind. Among the numerous French writers upon this subject M. Benoist worked out a unique scheme of functional representation combined with proportional representation; 1 while M. Duguit has proposed that representation be established in one chamber of the legislature on the usual basis of num- bers of individuals in geographical districts, and in a second chamber on the basis of functional groups. 2 Among English writers, Mr. G. D. H. Cole would divide economic and political power among a number of functional as- sociations independent of one another within their re- spective spheres, and at the top he would have a "joint council or congress of the supreme bodies representing each of the main functions in society." But this council would not be a vocational second chamber; it would be a "democratic Supreme Court of Functional Equity" to decide questions of dispute between the state, exercising power over political questions, and the various vocational associations, exercising power over vocational questions. 3 On the other hand, while Sidney and Beatrice Webb propose a "political parliament" and a "social parlia- ment," each supreme within its sphere, they do not con- template that either one of these parliaments shall be 'Charles Benoist, La arise de Vital maderne, de {'organisation du suffrage univer- sal (Paris, 1898). *Duguit, Traitt de droii constiiutionnel, pp. 506-512 (Paris, 2d ed., 1921); "La representation syndicate au Parlement," Remie politique et parlementaire, July, 1911. 'Cole, Social Theory, Chapter VIII (New York, 1920). FUNCTIONAL REPRESENTATION 119 constituted upon any principle of functional representa- tion. 1 The various indefinite schemes of functional representa- tion that have been put forward cannot be discussed here. Suffice it to say that the general idea of having people represented in a legislative body upon the basis of their functional, occupational, or other group associations is easy enough to understand however difficult it may be to elaborate a satisfactory scheme for such representation. The specification of the groups to be represented, the probable necessity of reorganizing existing groups with reference to purposes of representation, the allotment of representation to the several groups on the basis of relative importance, the question of plural voting by the individual who belongs to more than one group, the determination of whether there should be a single assembly in which all "functions" were represented or many functional as- semblies coordinated in some fashion all of these would be problems of no ready solution. On the subject of func- tional representation it is less difficult to philosophize than to specifize. Meantime, however, it has remained for Germany to make a first halting step in the direction of a new kind of functional representation. It is elsewhere pointed out that with the advent of the revolution in November, 1918, there arose all over Germany organizations of Soldiers and Workers Councils, 2 and that a Congress of these Councils met in Berlin in December, 1918, and again in April, 1919. In this spontaneous system of Councils there was naturally an enormous amount of confusion and ir- regularity. Potentially and actually, however, they were Sidney and Beatrice Webb, A Constitution for the Socialist Commonwealth of Great Britain (London, 1920). *See below, pp. 170 ff. The groundwork had been laid for these organizations by the National Patriotic Service Law, introduced in December, 1916, which, as a concession to the demands of labor, provided for the establishment of Com- mittees of Workers in all sizeable factories. See Temperley, Ed., A History of the Peace Conference of Paris, Vol. II, p. 455 (Ix>ndon, 1920). Difficulties of working out a plan Origin of German Council system 120 NEW CONSTITUTIONS OF EUROPE Councils "anchored" in the constitution Article 165 a constitu- tional landmark none the less a powerful agency. In fact, even after the die had been cast in favor of convoking a constituent as- sembly, and after the assembly had come together in February, 1919, the Council system was so strongly in- trenched that the Provisional Cabinet, resting upon the politically elected assembly, was in no position to ignore it. Adopting at first an attitude of opposition to the Councils, the Government was in the end compelled by strike and threat to modify its stand and to find a place within the constitutional edifice for a legally recognized system of Councils. Needless to say this outcome was far from satisfying the demands of the Independent Socialists and communists, who had hoped to realize a thorough- going soviet system. 1 Difficult as it may be to forecast its ultimate effect, Article 165 of the new German constitution unquestion- ably marks an important landmark in modern constitu- tional development. To be sure it is for the most part extremely vague in purport; it is manifestly a compromise that deliberately leaves not only all details but also many matters of principle wholly undetermined. It is neverthe- less fundamentally significant both economically and politically. In the realm of economics it piously invokes the principle of cooperation "on an equal footing" be- tween employers and employees "in the regulation of salaries and working conditions, as well as in the entire field of the economic development of the forces of produc- tion." But it provides no specific means whatever by J As one sympathizer with the radicals remarked: "At the same time, schemes are being continually put forward by the less reactionary elements for drawing the teeth of the [Council] movement by 'diddling' concessions. Among such may be counted the clauses 'anchoring' the Councils in the Constitution. The word itself shows how rapidly the German politicians are picking up the devices of parliamentary democracy. Again and again, on the platform and in the Press, the workmen are assured that ah 1 is well with the Councils because they are 'anchored' in the Constitution. What the workmen want is not to see them 'anchored' so much as under way; but it is creditable diddling is that catchword, 'anchored in the Constitution.' " Young, The New Germany, p. 184 (New York, 1920). FUNCTIONAL REPRESENTATION 121 which this millennium of cooperation inter pares is to be effected. " For the purpose of looking after their economic and social interests," it calls for the establishment of three grades of Workers Councils for factories, for districts, and for the Reich. And "for the purpose of performing eco- nomic functions and for cooperation in the execution of the laws of socialization," it calls for two grades of Economic Councils for districts and for the Reich. These latter Councils are apparently to include respectively the Dis- trict and the Reich Workers Councils, as well as repre- sentatives of employers and other groups, and are to be "constituted so that all important economic groups shall be represented therein proportionately to their economic and social importance." Thus does the constitution pass along the quicksandy question of relativity of importance among groups. Manifestly such nebulous provisions as these do not reach a goal; they do little more than point a direction. Their vitality depends wholly upon the manner in which these several Councils are constituted and the specific powers with which they are endowed. From the econo- mic point of view it is difficult to say which of these pro- posed Councils will prove to be the most important. But from the political and constitutional point of view it is certain that the Economic Council of the Reich is of chief significance. For this is the only one of the councils that is vested with any specific power. "Before proposing drafts of politico-social and politico-economic bills of fundamental importance," the Ministry must submit such bills to this Council. Moreover, the Council may itself propose bills and may submit them to and defend them before the Reichstag even over the protest of the Ministry. Here indeed is a power of some essence. An economic parliament, a chamber constituted on the basis of func- tional representation, is vested with the power to initiate and the right to be consulted upon social and economic Its terms Economic Council of chief political significance 122 NEW CONSTITUTIONS OF EUROPE Possibilities of Economic Council of the Reich Legislation under Article 165 legislation. It is not a third chamber standing along- side the Reichstag and the Reichsrat; for it has no power either to enact or to veto; it can only advise and propose. Speaking before the constituent assembly former Un- der Secretary of State von Delbriick said: "We are on the eve of a period in which the Reichstag and the Reichsrat will be considered as one side of the balance and the Economic Council as the other. Behold in this a wholly new political evolution. There will come a day when the Economic Council will seek to become the heir of the Reichsrat and to take its place." 1 Such a development is surely within the range of possibility. Indeed it is con- ceivable that by the quality of its personnel and its po- litical sagacity the Economic Council may sow in public confidence and esteem that it may not only seek to take the place of the somewhat emasculated Reichsrat, but may also actually rival or dominate the Reichstag. Judged, however, in the light of the history of advisory councils, this is not a probable development unless the character and worth of the Economic Council should lead to a constitutional amendment vesting it with larger powers. It remains to be seen, then, whether a body representing all important economic groups in proportion to "somebody's" view of their economic and social im- portance will spend its energy in internal dissensions arising out of conflicts of interest or will by concert of action exert a powerful constructive influence. 2 It is naturally of interest to inquire how the require- ments of Article 165 have been met. As yet no attempt has been made to establish the complete system of Coun- cils for which the constitution makes provision. Only two steps have been taken : the creation of Factory Work- ers Councils and the setting up of a Provisional Economic Council of the Reich. Even in the enactment of these 'Quoted in Brunet, The New German Constitution, p. 268 (New York, 1922). *See below, pp. 131, 132. FUNCTIONAL REPRESENTATION 123 two laws tremendous difficulties were encountered and much opposition was aroused. Almost immediately after the promulgation of the con- stitution a bill was introduced into the constituent as- sembly for the establishment of the Factory Workers Coun- cils. As finally enacted on January 18, 1920 (effective February 4), this law was an elaborate measure set forth in 106 articles. 1 It can be only briefly summarized here. 2 The organization of the Factory Workers Councils, some- times referred to simply as Works Councils, 8 has been described as follows: The Factory Workers Councils Law, 1920 There is first of all the "Factory Workers Council," properly so-called, which exists in every industrial or commercial unit and in all the public and private administrations where there are at least twenty workers. The wage-worker members of the Factory Workers Council constitute a "Workers Council" and the salaried employes mem- bers make up an "Employe Council." If the Factory Workers Council has more than nine members it elects according to the principles of proportional representation a "Factory Committee" of five members. If the Factory Workers Council comprises both representatives of workers and of employes, each of these two groups must be represented in the Factory Committee. A "General Factory Workers Council" must be created for enterprises of the same kind situated in the same locality or in adjoining localities and belonging to the same owners, if the Factory Workers Council in each plant so decide. This organ- ization may either remain in juxtaposition with the Factory Workers Councils of the different plants, or it may replace them. In that case it functions as a common Factory Workers Council. A "shop chairman" must be elected in the place of a Factory Workers Council in establishments employing less than twenty workers, of whom at least five must be electors. There is finally a "Factory Assembly" composed of all the regular employes of the factory. It is convened by the presi- iDeutsche Nationalveraammlung, 1920, No. 2028. *See "German Works Council Law," Monthly Labor Review, May, 1920, pp. 172 ff.; "Problems of Labor and Industry in Germany," Special Report Number 15, National Industrial Conference Board, September, 1920, pp. 30 ff. J The constitution uses Betriebsarbeiterrat: the law uses Betriebsrat, which is divided into an Arbeiterrat and an AngesteUienrai. Organiza- tion of Councils 124 NEW CONSTITUTIONS OF EUROPE Powers mostly advisory dent of the Factory Council. He must convoke it if the em- ployer or at least one-quarter of the workers demand it. 1 In spite of this elaborate organization the powers of the Factory Workers Councils are almost wholly advisory. 2 They may support with advice, cooperate, invoke concilia- tion, carry out awards that have been accepted, agree with the employer, promote harmony, receive complaints, support the factory inspectors; but they are not vested with any legal power to render and enforce decisions or otherwise to participate in any effective way in the actual management of the business against the will of the em- ployer. It is true that in enterprises that are managed by a board of directors a Factory Workers Council may designate one or two of its members to sit on this board; Brunei, op. cit., pp. 250, 251. law assigns to them the following duties: "1. In establishments with economic (commercial or industrial) aims, to sup- port the management with advice in order to assist it to bring the establishment to the highest possible state of efficiency. "2. To cooperate in the introduction of new labor methods. "3. To safeguard the establishment from violent disturbances, and, without prejudice to the rights of economic organizations of manual workers and salaried employees, to invoke the conciliation committee or some other conciliation or arbitration board agreed upon in case of disputes between the works council, the workers, or a part of the workers, and the employer which cannot be settled by agreement. "4. To see to it that awards made by a conciliation or arbitration board in matters concerning the entire establishment and accepted by the interested parties be carried out. "5. To 6x, in agreement with the employer, general shop regulations and any modifications of the same within the terms of collective agreements then in force. " 6. To promote harmony among the workers and between them and the em- ployer and to safeguard the workers' right of combination. "7. To receive complaints of the workers' and salaried employees' council and to dispose of them in agreement with the employer. "8. To take measures to combat danger to health and accidents in the estab- lishment; support the factory inspectors and other officials in the task of com- bating these dangers by information, advice, and calling them in when necessary, and by supervising the carrying out of the orders of the industrial authorities and of the provisions for the prevention of accidents. "9. To take part in the administration of pension funds, company-owned workmen's dwellings, and other welfare institutions of the establishment." "German Works Council Law," Monthly Labor Review, May, 1920, p. 178. The powers of the "Workers Council" and of the "Employ6 Council" into which the Factory Workers Council is divided, are as applied to their re- spective groups practically identical with the powers of the Factory Workers Council with respect to both groups. FUNCTIONAL REPRESENTATION 125 but these members constitute a negligible minority. It is true also that the Council may demand the wage sheet and a quarterly report on the condition and output of the plant, and that in sizeable establishments it may request an annual balance sheet and the profit and loss account; but it is given no general access to the books of the enter- prise, and even the meager information that it may de- mand must be held in strictest confidence. In the matter of hiring and firing the Councils are vested with the power to entertain appeals only in certain limited cases of dis- missal, to "negotiate" with the employer, and in the event of disagreement to pass the matter on to an arbitration board. It must not be thought that the system of Factory Workers Councils was proposed or accepted as a substitute for the more powerful organizations of the trade-unions. At the outset, in fact, the trade-unions had bitterly opposed the establishment of a council system; for in November and December, 1918, they had concluded with the big associations of employers highly satisfactory agreements for the establishment of "labor partnerships" (Arbeits- gemeinschafteri) composed of equal numbers of workers and employers. 1 In the end, however, they were compelled by the radical elements to accept the proposal for Councils ; and they agreed to assist the Factory Workers Councils on condition that the Councils operated in accord with the unions. The law creating the Councils expressly provides that "the right of the economic organizations of workers and of employees to represent the interests of their members is in no way prejudiced by the provisions of this law." By a number of other provisions, moreover, it is fairly implied that the Councils are to cooperate with and be in supplement of the trade-unions. Although the law does not mark a sharp line of functional distinction between the two, it was almost certain that the success 'Brunei, op. cit., pp. 238-244. Councils not a substitute for trade- unions 126 NEW CONSTITUTIONS OF EUROPE Similiarity o f the Factory Workers Councils would depend in large measure upon the extent to which they cooperated with and depended upon the older, larger, more resourceful, and more powerful trade-unions. An isolated Factory Council could not possibly develop the strength of a na- tional organization. Moreover, the growth of the trade- unions in Germany since the close of the World War has been almost incredible. 1 On the other hand, the radicals maintain that there is an essential difference of purpose between the trade-union and the Council; the former's mission is to promote the interests of labor under a capital- istic regime; the mission of the latter is to prepare the working class to take over the whole function of produc- tion. It is simply a fact, however, that there is not the most remote hint of this larger mission in the law itself. Elections of members of the Factory Workers Councils took place in April and May, 1920. Basing its opinions upon the reports of the German factory inspection service, the United States Bureau of Labor Statistics, making due allowance for the brief period of ten months' operation of the law, reaches the following conclusions in respect to its effectiveness: Results of 1. The works council law . . . was a compromise prod- operatioa uct of the coalition parties of that time. The principle of the of Councils right of co-management was almost entirely surrendered by this compromise. The compromise character of the law had the particular result that, from a technical legal standpoint, it was interpreted inaccurately and ambiguously. If one studies the commentaries on the law which have been written by jurists and by representatives of the employers and of the workers they are found to lack uniformity. The elastic inter- pretations of the law since it has been put to practical use be- tray this lack of uniformity even more than the commentaries. It is, therefore, but natural that during the first ten months of l " Viewed in the large, it may be said that the number of employees in Ger- many, whether manual or clerical workers, who are not organized is small. Only here and there one finds a workman who is not a member of a labor organi- zation." "Problems of Labor and Industry in Germany," Special Report Num- ber 15, National Industrial Conference Board, September, 1920, p. 8. FUNCTIONAL REPRESENTATION 127 the operation of the works councils the workers in many in- stances attempted to exceed the rights granted them by the law, while, on the other hand, many employers endeavored to with- hold from the workers even those rights to which the latter were entitled. Thus these ten months have been spent to a large ex- tent in conflicts over the interpretation of the law and in efforts of the political parties to secure control of the works councils. 2. The comparatively large number of disputes that have arisen out of the operation of the works council law have nearly always been settled amicably through the intervention of the factory inspectors. . . . 3. The most outstanding fact revealed by experiences from the first year's operation of the councils is that in disputes be- tween employers and councils both sides, as a rule, do not act on their own initiative but are generally guided by their respec- tive organizations. This accounts for the fact that many dis- putes were initiated as mere test cases and were fought out through both tribunals of appeal permitted under the law. 4. The works councils, and still more the workers councils [i. e., the councils of manual workers as distinguished from the councils of salaried or clerical employees], are entirely controlled by the trade-unions. In view of the phenomenal development of the trade-union movement in Germany since the end of the war the unorganized workers now form only a small minority in nearly all establishments this seems but the natural out- come. It often leads, however, to attempts on the part of the works councils to discriminate against the unorganized workers and to force them into joining an organization. Friction has often arisen among council members themselves when they be- longed to rival labor organizations. 5. The councils so far elected are mostly composed of younger workers with pronounced radical tendencies. The older and more conservative workers either are not being consid- ered in the nominations or refuse election. The office of coun- cil member seems to be no sinecure and is little sought after. The duty of mediation puts the council members, and especially the chairman of the council, in a rather difficult position. If the council in its dealings with the employer upholds the in- terests of the workers only, there is continuous friction with the employer, and if it observes a more moderate attitude, it is accused by the working force of subserviency to the employer's interests. This has led many councils to resign in a body. 6. So far the councils have failed to take seriously one of their principal duties, that of "supporting the management with advice in order to assist in bringing the establishment to the highest possible state of efficiency. . . ." Control by trade- unions 128 NEW CONSTITUTIONS OF EUROPE 7. All reports agree in one point, namely, that the smooth operation of works councils depends largely on their make-up. . . . A great deal depends also upon the intellectual and technical fitness of the council members for their office. The trade-unions seem to be fully aware of this fact and have estab- lished training courses for council members in all industrial centers. . . . 8. Works councils have operated most satisfactorily in estab- lishments in which, from the beginning, both sides showed good will and an honest desire for successful cooperation. . . . 9. There seems to be little need for works councils in small establishments. . ..*! = 10. The majority of employers are adapting themselves to the new institution, and facilitate the operation of the councils by providing them with office rooms, clerical help, telephones, etc., and by exempting a reasonable number of the council mem- bers from productive work. . . . 11. Women workers show scant interest in works coun- cils. . . . 12. All works councils are supporting the factory inspection service to the best of their ability in combating health and ac- cident hazards. 1 Law of 1920 for Provisional Economic Council At no time apparently has the Government been pre- pared to bring forward a comprehensive proposal for the entire system of Councils mentioned in the constitution. Having provided for the lowest order of Councils the Factory Workers, or Works, Councils it turned its at- tention to the highest Council, the Economic Council of the Reich. It was difficult if not impossible, however, to create this Council in constitutional form without also creating at least the Workers Council of the Reich; for Article 165 evidently contemplates that members of the central Workers Council should unite with representatives of other economic interests to form the central Economic Council. It was therefore decided to establish a Provi- sional Economic Council of the Reich. A law to this end was enacted in Mav, 1920, and the Provisional Economic l " Factory Inspectors' Reports on Operation of German Works Councils," Monthly IJibor Review, February, 1922, pp. 10-12. FUNCTIONAL REPRESENTATION 129 Council met for the first time on the thirtieth of June following. 1 As might have been expected extraordinary difficulty was encountered in allotting representation to various in- terests "proportionately to their economic and social importance." It was finally determined that of the 326 members, representation should be distributed as follows: 68 representatives 68 representatives 44 representatives 36 representatives (handicrafts) 34 representatives transport and 6 representatives 30 representatives associations, 16 representatives 24 representatives of agriculture and forestry of general industry of commerce, banking, and insurance of small business and small industries of transport services (water and railway postal service) of market industries and fisheries of consumers (municipalities, consumers and organizations of women) of civil servants and the professions named by the government Most of these divisions comprise enterprises or services in which there are employers and employees; in such divisions it is expressly provided that there shall be parity of representation between the two. So far as the election or appointment of labor representation is concerned, use was of necessity made of the trade-union organizations. Greater difficulty was encountered in determining the mode of choosing the representatives of employers and property owners. A complicated compromise was finally reached by which some of these representatives were chosen with reference to the national associations of em- ployers organized on the basis of specific industries, while others were chosen with reference to the local or regional organization of employers in chambers of commerce and similar associations. For the purpose of actually naming 'The original project of the law is outlined in "Problems of Labor and Indus- try in Germany," Special Report Number 15, National Industrial Conference Board, September, 1920, pp. 38 ff. As finally enacted the law is best described by Brunei, op. cit., pp. 263 ff. Apportion- ment of represen- tation Parity of employers and employees Representa- tives of general industry as illustration Functions of Provisional Economic Council 130 NEW CONSTITUTIONS OF EUROPE the delegates, power was in many instances vested in Arbeitsgemeinschaften, or "labor partnerships," consisting of equal numbers of representatives of trade-unions and of associations of employers. For example, of the 68 rep- resentatives of general industry, 48 represent national trade groups. Of these 48, 21 employers and 21 employees were designated with due regard for specific industries, by the central or national Arbeitsgemeinschaft of all the employers and employees of Germany; 2 employers and 2 employees were named by the Coal Council of the Reich (Reichskohlenrat), consisting of both employers and em- ployees; and 1 employer and 1 employee were named by the similarly constituted Potash Council. Of these same 68 representatives of general industry, the remaining 20 represent regional groups; 10 of these are employers chosen by the national Chamber of Commerce from among local chambers of commerce in regions not otherwise adequately represented, and 10 are employees chosen by the trade- union members of the central Arbeitsgemeinschaft from regions similarly unrepresented. Whether the basis of representation in the permanent Economic Council of Reich, which is yet to be established, will be identical with or similar to the basis provided for this Provisional Council has not been determined. If a similar basis is adopted, it would seem that, according to the literal terms of Article 165, the Workers Council of the Reich would of necessity consist of the labor mem- bers of the Economic Council. On the other hand, it would in many ways seem appropriate that the three grades of Workers Councils (Factory, District, and Reich) should be constituted in some hierarchical relationship to one another. This Provisional Economic Council is regarded primar- ily as a kind of "constituent assembly" convoked for the purpose of proposing a "constitution" for the several councils (except the Factory W 7 orkers Councils already FUNCTIONAL REPRESENTATION 131 established) required by the constitution. This appears to be its main task. Meantime, however, it is to a con- siderable extent performing the functions of a permanent Economic Council. Certain bills of a socio-economic or politico-economic character have been submitted to it by the Ministry. 1 For example, a bill for the organization of employment information bureaus and a bill for the estab- lishment of a system of arbitration for the settlement of industrial disputes were vigorously debated both in the committees and the plenary sessions of the Provisional Economic Council. In December, 1921, those bills were adopted in such form that a majority of the trade-union delegates voted against them. It is interesting to note that there appears to be more solidarity among the em- ployer group than among the labor group; the latter tends more frequently to split into smaller groups representing various shades of radical opinion. Even so the line be- tween employer representative and employee representa- tive is fairly drawn, with the result that the balance of power lies with the 24 appointees of the government, who are likely to reflect the views of the government. It was this fact no doubt that led the organ of the General 'The Korrespondenzblatt des Allgemeinen Deutschen Gewerkschaftsbundea of April 8, 15, and 22, 1922, contains long articles on the results of bills considered by the Provisional Economic Council of the Reich. One of the first bills con- sidered by its socio-political committee was concerned with the hours of labor for industrial workers. This bill was referred to a sub-committee (Arbeiiaonisschuss) which attempted to consider the whole question of labor conditions in industry. The employer members thereupon absented themselves from the meetings of the sub-committee, and the matter was referred back to the socio-political com- mittee, which passed a resolution restricting the scope of the sub-committee's inquiry. Thereupon the labor members absented themselves, and the matter again went to the socio-political committee, which finally referred it to a com- mittee of 14 experts. Other matters considered by the socio-political committee have been the status of house-servants and social insurance. On January 19 and 20, 1922, the finance committee considered tariff questions; and on Febru- ary 4-7, the Council itself discussed export duties. On March 15-24, it consid- ered the matter of duties on ink and paper with reference to the needs of the German press. On March 8, the politico-economic committee had under con- sideration the agenda of the Genoa Conference. On March 22, the reparation committee considered the problem arising out of the Wiesbaden agreement on reparations. This brief review serves to illustrate the kind of questions that are being brought to the attention of the Provisional Economic Council of the Reich. Balance of power is with government appointees Little progress with District Economic Councils 132 NEW CONSTITUTIONS OF EUROPE Federation of German Trade-Unions to declare after the vote on the above-mentioned bills: "The Economic Coun- cil of the Reich is not a favorable ground for the free trade- unions to realize their fundamental principles. The em- ployers have more opportunity for doing so, but they also are kept in check by their class politics. Thus it remains for the Government to make the final decision. The Economic Parliament has of its own accord ruled itself out" 1 Ever since the opening of the Provisional Economic Council its committee on constitution has been endeavor- ing to outline a plan of organization for the District Economic Councils. Great difficulties have been en- countered. The trade -unions demand the abolition of chambers of commerce and other existing associations of employers, and the election by some plan of proportional representation of District Workers Councils and of District Employers Councils which together and in equal numbers would form the District Economic Councils. The em- ployers as well as the Government are opposed to the abolition of the existing employers organizations. Down to January, 1922, the committee on constitution had not reached any decision on this matter; nor had they settled the question of the powers of District Councils or the question whether they should be organized according to industries, or existing political divisions, or newly created geographical districts, or some other criterion. 2 l Korrespondenzblatt des AUgemeincn Deutschen Gewerkschaflsbundes, Decem- ber 17, 1921. 2 In the Korrespondenzblatt des Attgemeinen Deutschen Gewerkscliaftsbundes of February 4, 1922, there is reprinted from Afa, the organ of the Allgemeine Freie Angestelltenbund, an article entitled: "What is becoming of the District Economic Councils?" The author, Herr Aufhauser, is a trade-union member of the committee on constitution of the Provisional Economic Council of the Reich. He contends that the continued existence of chambers of commerce and employers' associations without any organic connection with the District Economic Councils would reduce the latter to impotence. On the other hand, unless some substitute based on economic conditions and not on constitutional paragraphs can be found, these existing units cannot be abolished. The im- portant task is to create local economic councils, but the big capitalists are absolutely opposed to this. They will not admit the workers into their cham- FUNCTIONAL REPRESENTATION 133 Although the matter is wholly outside the sphere of the constitution, no discussion of the functional representation of labor in Germany would be complete without reference to the important events that followed the short-lived military coup de main of March, 1920, which was effected under the leadership of von Kapp and von Llittwitz. Taken by surprise and deprived of the support of the troops upon whom they had counted, the Government fled from Berlin and, together with members of the politi- cal parties which had supported it, issued a proclamation calling for a general strike. The strike immediately broke the back of the monarchist insurrection; but the radicals were quick to take advantage of the chaotic situation that ensued. Before they would call off the strike or permit a restitution of the old Government, the trade-unions forced the Government to sign an agreement recognizing: (1) their right to dictate future Cabinet appointments both in the Reich and in Prussia; (2) their right to have a de- cisive voice in the formulation of economic and socio- political legislation; and (3) their right to approve a re- form of the administration "on a democratic basis." 1 bers or give them a direct share in the management of industry. In this connection it should be remembered what a powerful influence the chambers of commerce exert upon the Reichsrat, which is continually curbing both the Reichstag and the Economic Council of the Reich. "It is not too much to say that the value of all the council organizations stands or falls with this: whether it will be possible to reorganize the employers' chambers into true economic chambers in which the workers will have equal rights." ! The terms of the agreement between the Government and the trade-unions were as follows: "1. That in the approaching creation of new Governments in the nation and in Prussia, the question of personnel be solved by the several parties after agree- ment with those trade-union organizations of manual workers, clerical employ- ees, and officials who had taken part in the general strike; and that these organ- izations, with due regard for the rights of the representatives of the people, be accorded a decisive voice in the formulation of economic and socio-political legislation. "2. Immediate disarmament and punishment of all those who had partici- pated in the overthrow of the Constitutional Government and also of all those officeholders who had placed themselves at the disposal of the unlawful Govern- ment. "3. Thorough house-cleaning of all public administrative offices and of the managements in industrial establishments of all persons who had taken part in Agreement between Government and trade- unions in 1920 134 NEW CONSTITUTIONS OF EUROPE Significance The recognition of such far-reaching claims was, of of agree- course, nothing short of revolutionary. Only time can tell whether this documentary contract between the trade- unions and the Government of the day must be regarded as the ephemeral product of a turbulent period, binding upon no Government of the future because it is no part of the fundamental law of Germany; or whether it will take its place as among the world's famous charters of rights a charter indeed that might prove to be far more important the counter-revolution, particularly of those who had held leading positions and the substitution for them of trustworthy leaders; reinstatement of all rep- resentatives of organizations who have been disciplined for industrial or political reasons. "4. The promptest carrying out of administrative reform on a democratic basis with the approval of the trade-union organizations of manual workers, clerical employees, and officials. "5. Immediate extension of existing social legislation and the enactment of new laws which would guarantee complete economic and social equality to manual workers, clerical employees, and officials; immediate enactment of a liberal civil service law. "6. Immediate beginning of the socialization of those branches of economic activity which are ripe for it on a basis of the recommendations of the Commis- sion on Socialization; convening of the Commission on Socialization; Govern- ment ownership of the Coal Syndicate and the Potash Syndicate. "7. Effective control and, if necessary, seizure of available articles of food and the severest repression of extortionate charges and profiteering in cities and in rural regions; assurance of the fulfilment of promises of delivery through the establishment of delivery organizations and penalty of severe punishment for malicious violation of these promises. "8. Disbandment of all associations of counter-revolutionary troops that were unfaithful to the Constitution and the substitution for them of military organizations formed from among that body of trustworthy Republican popula- tion, particularly from organized manual workers, clerical employees, and of- ficials without discrimination against any class. In this reorganization, the well-earned legal claims of those troops and Security Guards who remained loyal shall not be disturbed. "9. Withdrawal from the Government of Noske, Minister of Defense, and of Heine, who have already handed in their resignations." In connection with this agreement, the German General Federation of Trade- Unions, the Industrial League of Free Unions of Clerical Employees, and the Federation of Government Employees issued the following proclamation: "The Conference of representatives of those organizations of manual workers, clerical employees, and employees in the public service, who participated in the general strike, announces that although it is not entirely satisfied with the terms of the agreement arrived at in its negotiations with the representatives of the political parties in the Government, it nevertheless approves these and hereby declares the general strike terminated as of this day. Berlin, March 20, 1920 7.05 A.M." "Problems of Labor and Industry in Germany," Special Report Number 15, National Industrial Conference Board, September, 1920, pp. 45-47. The general strike was not in fact called off until March 23, after further negotiations and agreement with the Independent Socialists. FUNCTIONAL REPRESENTATION 135 than the constitution itself. Certain it is that, if for all time to come the trade-unions of Germany are to have the right to make and unmake ministries and to have a de- cisive voice in the formulation of all important legislative policies, functional representation of labor has arrived in Germany full grown and full panoplied. Although the Austrian constitution contains no pro- vision on the subject, it is nevertheless of interest to note that a Workers Chamber (Arbeiterkammer) has been set up in each of the Austrian states by national law. 1 These Chambers, varying in size from state to state, consist of representatives of (1) manual workers and of (2) clerical employees in private industry, and of (3) manual workers and of (4) clerical employees in certain public services. 2 The functions of these Chambers are almost wholly eco- nomic. The mere fact, however, that they are involun- tary creatures of the law cannot fail to give them a measure of political signification. Finally, attention must be directed to the brief pro- nouncements of three other constitutions. "For the framing of social and economic legislation the economic council is created" in Jugoslavia. 8 In Poland "a special statute will create . . . economic self-government" and a "Supreme Economic Council of the Republic" to collaborate " with state authorities, in directing economic life and in the field of legislative proposals." 4 In Danzig bills may be introduced into the legislature "by legally constituted bodies representing the various professions and trades"; and "bills dealing with economic and social questions shall be submitted to these bodies for their ap- proval." 5 Thus in Europe is functional representation casting its portentous shadow before it. 'Laws of February 26, 1920, and of October 1, 1920; Staatsgcsetzblatt, 1920, Nos. 100, 469. 2 Wahlordnung der Kammern ftir Arbeiter und Angestellte, Bundesgesetzblatt fur die Republik Osterreich, 1920, p. 27. 'Art. 44. 4 Art. 68. Art. 45; see also Art. 114. Workers Chambers in Austria Economic Councils in other States Secret diplomacy and the World War Problem of legislative control of diplomacy CHAPTER VII DEMOCRATS AND DIPLOMATS IN HIS Modern Democracies, Lord Bryce declared that "the adjustment of relations between the Executive and Legislature in the conduct of foreign affairs has been one of the most difficult and indeed insoluble problems of prac- tical politics." 1 It is a problem to which, during the last few years, much attention has been devoted. If it is not true, as has frequently been argued, that autocratic meth- ods of diplomacy were responsible for Europe's plunge into war, 2 it is certain that statesmen had made commit- ments concerning which great self-governing peoples were ignorant; and it is arguable that greater publicity and more effective parliamentary control might have served at least to delay the cataclysm. 3 Naturally enough, therefore, the problem of adjusting the relations between the execu- tive and legislature in the management of foreign affairs has been of particular interest to the framers of the new constitutions of Europe. Recently also it has been dis- cussed in England, France, Italy, Norway, Sweden, and Switzerland. If the solution is not evident, it is at least certain that the extinction of monarchical control over foreign affairs, which in varying degrees existed in Russia, Germany, and Austria-Hungary, has been an immense gain. The new instruments of government all attempt to provide a measure of parliamentary supervision, either l \o\. II, p. 74 n. 4 See, for example, E. D. Morel, Ten Years of Secret Diplomacy (London, 1915); A. Ponsonby, Democracy and Diplomacy (London, 1915); F. Neilson, How Diplomats Make War (New York, 1915). 3 Lord Loreburn, How the War Came (London, 1920). 136 DEMOCRATS AND DIPLOMATS 137 through a requirement that treaties must be ratified by the legislature in order to be binding, or through the agency of a standing committee of foreign affairs. Agree- ments need not be openly arrived at, and secret treaties there still are, even though the League of Nations Cove- nant requires that, to be valid, international undertak- ings must be registered with the League's secretariat. But dynastic control is gone; 1 the right of democracies to control their foreign relations is rarely challenged in prin- ciple; and constitutional changes have limited the exclu- sive competence of the executive. The problem of the popular control of diplomacy is of Recent very recent origin. 2 Indeed, it may almost be said that origin of with regard to foreign policy our systems of government problem are primitive. 3 Law-making bodies have been democra- tized; in formulating and effectuating internal poli- cies representatives attempt, at least in theory, to con- sult and to follow the wishes of the people. In foreign affairs, however, either through indifference, or perhaps 'The stability of the dynastic system in Europe "rested very largely upon the maintenance of peace. It was the failure to understand this on the part of the German and Bulgarian rulers in particular that has now brought all monarchy to the question. ... In the days when Queen Victoria was the grandmother of Europe this was a plausible argument. King, Czar and Emperor, or Em- peror and Emperor would meet. It was understood that these meetings were the lubrication of European affairs. The monarchs married largely, conspicu- ously, and very expensively for our good. Royal funerals, marriages, christen- ings, coronations, and jubilees interrupted traffic and stimulated trade every- where. They seemed to give a raison d'etre for mankind. It is the Emperor William and the Czar Ferdinand who have betrayed not only humanity but their own strange caste by shattering all these pleasant illusions. The wisdom of Kant is justified, and we know now that Kings cause wars. It needed the shock of the great war to bring home the wisdom of that old Scotchman of Konigsberg to the mind of the ordinary man." H. G. Wells, "The Future of Monarchy," The New Republic, May 19, 1917. 2 With regard to diplomacy, "democracy enters on a province alien to its true character. Diplomacy demands secrecy and the concession of large discretion- ary powers to its agents. Democracy demands the discussion of every impor- tant compact, even of the step leading to such compact, by the people's Cham- ber. Here is the Achilles' heel of popular government, and autocrats have ever aimed their deadliest shafts at this vulnerable point." J. Holland Rose, The Rise and Growth of Democracy in Great Britain, p. 237 (Chicago, 1898). 3 C. D. Burns, International Politics, p. 120 (London, 1920). For an elaborate discussion, see Barthelemy, Democratic et politique etrangbre, Chapter I (Paris, 1917). American practice Common Sense in Foreign Policy 138 NEW CONSTITUTIONS OF EUROPE through conviction of their lack of special competence, the people have suffered the executive to exercise a wide and largely uncontrolled discretion. In the American experiment it was assumed that there would be no ex- ception to the matters entrusted to the democracy; the constitution provided for the senatorial ratification of treaties. By many this arrangement was considered of doubtful wisdom. 1 It antedated by a century the develop- ment of any popular control in England. For, although the revolution of 1688 may have established the principle that all political power comes from the people, it was not until very recent times that the direction of international policy was taken out of the hands of the monarch, to whom by curious tradition it was said to belong. In 1913 there was published in England a remarkable little book called Common Sense in Foreign Policy. The author was Sir Harry Johnston, an experienced and able colonial servant. He surveyed the existing questions of world politics, and ventured predictions to which the war of the next year gave striking confirmation. If his modest little book had been published in 1 886, Sir Harry remarked, it "would have savored of indiscretion or impertinence." J This attitude, for example, was well expressed by De Tocqueville : "As for myself, I do not hesitate to say that it is especially in the conduct of their foreign relations that democracies appear to me decidedly inferior to other governments. Experience, instruction, and habit almost always succeed in creating in a democracy a homely species of practical wisdom, and that science of the petty occurrences of life which is called good sense. Good sense may suffice to direct the ordinary course of society; and amongst a people whose edu- cation is completed, the advantages of democratic liberty in the internal affairs of the country may more than compensate for the evils inherent in a democratic government. But it is not always so in the relations with foreign nations. "Foreign politics demand scarcely any of those qualities which are peculiar to a democracy; they require, on the contrary, the perfect use of almost all those in which it is deficient. ... A democracy can only with great difficulty regulate the details of an important undertaking, persevere in a fixed design, and work out its execution in spite of serious obstacles. It cannot combine its measures with secrecy, or await their consequences with patience." The natural defects of aristocracy do not injure the direction of external affairs. "The capital fault of which aristocracies may be accused is, that they work for themselves, and not for the people. In foreign politics, it is rare for the interest of the aristocracy to be distinct from that of the people." Democracy in Amer- ica, Chapter XIII. DEMOCRATS AND DIPLOMATS 139 In those days, a country's relations with its neighbors or with distant lands were dealt with almost exclusively by the head of the State Emperor, King, or President acting with the more-or-less dependent Minister-of-State, who was no repre- sentative of the masses, but the employe of the Monarch. Events were prepared and sprung on a submissive, a confident, or a stupid people. The public Press criticized, more often applauded, but had at most to deal with a, fait accompli and make the best of it. Occasionally, in our own land, a statesman, out of office and discontented, went round the great provincial towns agitating against the trend of British foreign policy perhaps wisely, perhaps unfairly, we do not yet know and scored a slight success. But once in office, his Cabinet fell in by degrees with the views of the Sovereign and the permanent officials (after the fifties of the last century these public servants were a factor of ever-growing importance) ; and, as before, the foreign policy of the Empire was shaped by a small camarilla consisting of the Sovereign, two Cabinet Ministers, the perma- nent Under-Secretary of State for Foreign Affairs, and perhaps one representative of la plus haute finance. 1 The Times was the only English newspaper that had any independent sources of information about foreign affairs and its connection with successive governments was very close. 2 Practically its only attempt at opposi- tion was with regard to the policy of Gladstone. Foreign policy was still "the natural employment of courts and monarchies." 3 That theory prevailed on the continent until the conclu- sion of the war. Russia was the extreme example. The Czar was supreme; management of foreign policy was his prerogative. He declared war, decided on peace, and concluded treaties. The right of interpellation and de- bate in the Douma was so limited as to be valueless; the Minister for Foreign Affairs could make a statement only with the express permission of the Emperor. In Ger- many, the Reichstag did possess some slight authority, and upon occasions like that of the Daily Telegraph interview 'Johnston, Common Sense in Foreign Policy, pp. 1-2. See Sir Edward Cook, Delane of The Times (London, 1916). 3 H. G. Wells, The Outline of History, Vol. II, p. 216 (New York, 1920). English practice in 1886 Press influence Continental practice Queen Victoria in foreign affairs 140 NEW CONSTITUTIONS OF EUROPE it was able to exert some influence; but the powers of the Emperor were great. 1 His correspondence with the Czar 2 and his annotations on the Kautsky documents are not mere illustrations of Hohenzollern idiosyncrasies; they are also significant in a constitutional sense. 3 In continental countries with cabinet responsibility, the constitutions did not require certain treaties to be laid before the legislature, and the executive had in consequence large discretion. 4 With the disappearance of kings all this has been changed. Japan is now the only great power in which there is not even a pretence of popular control. 5 In England, as Sir Harry Johnston said, not until re- cently has Parliament asserted much control; but the principal problem has been with regard to the constitu- tional rather than the titular executive. The Cabinet, that is to say, rather than the Crown, has possessed the power, and the question has been as to the measure of parliamentary control. Nevertheless, even in recent years the royal authority has been far from negligible. Mr. Strachey's incomparable biography by no means tells the whole story of the influence exerted by Queen Victoria with the able assistance of her husband, who was also, as he told the Duke of Wellington in 1850, her "private secretary, her permanent minister, and her sole confiden- tial adviser in politics." 6 a D. P. Myers, in his Notes on the Control of Foreign Relations (Central Organiz- ation for a Durable Peace, 1917) magnifies this parliamentary control. 8 N. F. Grant (ed.), The Kaisers Letters to the Tsar: Tlte Willy-Nicky Corre- spondence (London, 1920). 3 " Who authorized him to do this?" was the note when the German ambassa- dor urged moderation on Austria. "The Serbs must be finished as soon as possible." "Serbia's national dignity does not exist," the Kaiser wrote on a dispatch from Lichnowsky. "The question has nothing to do with Grey; it is his Majesty Francis Joseph's affair. What gigantic British impudence!" Karl Kautsky, Comment s'est declenchte la guerre mondiale, pp. 53, 131 (Paris, 1921). 4 See President Poincare's book Les origines de la guerre (Paris, 1921) which discusses his own share in the Anglo-French agreements; see also his How France Is Governed, p. 165 ff. (New York, 1914). 'See Willoughby and Rogers, op. cit. pp. 375 ff. "Martin, Life of the Prince Consort, Vol. II, pp. 259, 260. "A foreign Baron (Stockmar) controlled a foreign Prince, and the foreign Prince controlled the DEMOCRATS AND DIPLOMATS 141 During the reign of Victoria the most important consti- tutional incident was the difference of opinion between the Queen and Lord Palmerston. In that struggle (1851) "all the weight of experience was on Palmerston's side, and their victory over him was the victory of anti-liberal principles in foreign policy. And it was won at the ex- pense of the nation by the Court's successful assertion of its claim to a dominant control over foreign affairs. Of the Parliament that was behind the Minister or of the public that was behind Parliament there is no evidence derivable from the Royal correspondence that the Court took the smallest account. Foreign policy came to be considered as a matter to be solely or mainly directed by the Crown, and if the Crown and the country took diver- gent views it was the views of the Crown that had the right to prevail." It was the Crown that asserted "the unfettered right to approve or disapprove the choice of a Minister for the office." 1 The right to offer advice became the right to withhold consent, or at least to force ministerial concessions. Thus the Queen wrote to Lord Clarendon on July 24, 1855: "Having read the whole of these documents, she con- fesses that she requires some explanation as to the advan- tages which are to arise to England from the proposed treaty, before she can come to any decision about it." 5 Again, the English Ambassador at Paris was told that "the Queen cannot understand how Lord Cowley can pro- pose anything so indefensible in a moral point of view." 3 It matters not that the influence of the Crown was beneficial and in some cases imposed very wise restraints on ministerial action. From the standpoint of the con- Crown of England. And the Crown itself was creeping forward ominously; and when, from under its shadow, the Baron and the Prince had frowned, a great Minister, beloved of the people, had fallen. Where was all this to end?" Strachey, Queen Victoria, p. 251 (New York, 1920). J J. A. Farrar, The Monarchy in Politics, pp. 228-229 (New York, 1917). ^Letters of Queen Victoria, Vol. Ill, p. 169; Farrar, op. cit., p. 194. ^Letters of Queen Victoria, Vol. Ill, p. 435. Foreign policy determined by the Crown Illustrations Conflict of control between Crown and Parliament 142 NEW CONSTITUTIONS OF EUROPE stitution, the problem was serious. The sovereign, who was a Queen, wove the threads of England's foreign policy. In 1874, for example, Victoria planned to go to Balmoral two days before the departure from London of the Czar who was in England for the marriage of his daughter to the Duke of Edinburgh. When it was pointed out to her Majesty that this would be gravely impolite and that serious consequences might ensue, she remained adamant; her plans could not be changed. 1 Lord Derby, Lord Salis- bury, even the Prince of Wales, could not dissuade her; but Disraeli succeeded. "Salisbury," he wrote, "says that I have saved an Afghan War, and Derby compli- ments me on my unrivalled triumph." The delay was made, the Queen confessed, "for Disraeli's sake and as a return for his great kindness." 2 The blandishments used were extra-constitutional, but the whole theory of the English constitution is that the checks on the Crown should be definite and effective; that nothing should de- pend upon the finesse of the statesman who happens to be Prime Minister. 3 The Sovereign had claimed and had succeeded in securing a control of diplomacy far greater than foreign ministers had allowed the three preceding kings, and the struggle was not without its effect on the share that Parliament could assert in the conduct of foreign relations. The result was "that successive Foreign Min- isters found themselves confronted with two responsible ties, of which that to the Crown tended to override that to Parliament, and to bring about that impotence of Parliament over foreign policy which has now reached the stage of complete paralysis. Now for better, now for worse, a dual and often conflicting control was set up, 'Strachey, op. cit., p. 357. 2 Monypenny and Buckle, The Life of Benjamin Disraeli, Vol. V, p. 415 (New York, 1920). 3 In 1877 Victoria told Disraeli that " if England is to kiss Russia's feet," the Queen "would lay down her Crown." The Queen would be "so humiliated that she thinks she would abdicate at once. Be bold." Strachey, op. cit., p. 363. DEMOCRATS AND DIPLOMATS 143 and whilst in domestic affairs the Court bowed, however reluctantly, to the Cabinet, in foreign affairs its claim to a concurrent or even dominant power was the main political result of the Queen's reign." 1 In politics the play of chance has effects which are sometimes overlooked. 2 Queen Victoria's widowhood was an accident that prevented further accretions of royal power. Gladstone's friendship was also a restraining in- fluence. He viewed with disfavor the concessions that Disraeli had made, and he was none the less alarmed be- cause tactful flattery and not constitutional right was Disraeli's resource. That the sovereign should be told what transpired in cabinet meetings seemed to Gladstone particularly dangerous. 3 During his long premiership, therefore, the constitutional executive asserted more and more independence. Then came another accident. Mr. Strachey's picture of Victoria's son, a mature Prince of Wales, late for dinner, nervously delaying the moment of receiving his mother's reproof, does not fore- cast a king who would take a prominent, independent part in European politics and who would raise more serious constitutional questions than had been before England in a century. 4 Yet that was the case. Victoria's influence was always exerted through her ministers, but Edward VII worked directly. He was known as "the great inter- national statesman" and "the European peacemaker." There was no precedent for this practice before the foreign secretaryship of Lord Lansdowne. The King made several visits, unattended by any member of the Cabinet, 'Farrar, The Monarchy in Politics, p. 192. ! See Willoughby and Rogers, op. cit., p. 9. 3 See Monypenny and Buckle, op. cit., Vol. VI, p. 454; Morley, Life of Glad- stone, Book XII, Chapter 5. 'Strachey, op. cit., p. 887. "What, indeed," wrote Hallam, "might be af- fected by a king at once able, active, popular and ambitious, should such ever unfortunately appear in this country, it. is not easy to predict; certainly his reign would be dangerous on one side or other to the present balance of the Constitu- tion." Constitutional History of England, Vol. Ill, p. 297. The play of chance Influence of Edward VII 144 NEW CONSTITUTIONS OF EUROPE Question of constitu- tionality to the King of Italy, the Emperor of Germany, the Presi- dent of the French Republic, and the Czar of Russia. 1 He carried on a correspondence with the heads of foreign powers without the interference of the Secretary of State for Foreign Affairs. A generation before, this would have been unconstitutional; to-day it would be equally so. 2 The facts concerning it did not come to light until re- cently; 3 and the future historian will have to determine 'An experienced and well-informed observer wrote in 1908: "All the diplomacy is done by Hardinge and the King, while Grey is their mouth-piece in the House of Commons, having a fine presence and an impressive manner with a wonder- fully fine speaking voice." Wilfred Scawen Blunt, My Diaries, Vol. II, pp. 204-285 (New York, 1921). Upon the death of the King the same diarist wrote: Edward VII "knew Europe well, and exactly what foreigners thought of England. The knowledge was of use to him and to our Foreign Office, especially under such insular Secretaries of State as Arthur Balfour and Edward Grey. . . . He stopped the Boer War, knowing how unpopular it was making Eng- land on the Continent and everywhere, and how much we were becoming de- spised for our childish attempts at subduing this sturdy little people. . . . The Anglo-Russian treaty he did off his own bat with Hardinge, Sir Edward Grey looking on. His only notable failure was in the affair of Bosnia, and people in England knew too little of the conditions to understand how great a failure it was. Also, he never succeeded in making friends with his nephew Wilhelm, and I fancy they hated each other to the end." Ibid., Vol. II, p. 308. 'The practice was correctly stated by Mr. Todd in 1887: "At every interview between the sovereign and the minister of any foreign court, it was the duty of the secretary of state for foreign affairs to be present. Private communication between a king of England and foreign ministers is contrary to the spirit and practice of the British constitution. . . . "Moreover, it is not usual for the king of England to receive from other sovereigns letters upon public questions which do not pass through the hands of his ministers; and sometimes such letters have been returned, because copies were not sent (with the sealed letter) for the information of the minister. It is still more unusual and improper for the king to answer a letter from another sovereign without the advice of his minister, who, whether he advises or does not, is responsible if he knows of the letter being written." Parliamentary Government in England, Vol. I, pp. 83-84 (ed. Walpole). Mr. Todd cites the case of a letter to Queen Victoria from the King of Prussia, who requested his ambas- sador to deliver it at a private audience. Prince Albert detected the irregular- ity and the letter was read in the presence of the Foreign Secretary. 'See the three letters of Sir Sidney Lee (the King's biographer) in the London Times, July 21, 22, and 23, 1921. Lord Esher scouted the idea that the King had taken any independent action. " The popular idea, outside the British Isles, that King Edward moulded the Foreign policy of this country is of course pure illusion. . . . He always recognized that to initiate the policy of Great Britain was the business of ministers for the time being, and his function was to criticize or approve it, and finally to support it with all his powers. . . . The Foreign policy of the Ministry of the day was in his eyes as under a con- stitutionalgovernment it must be assumed to be the policy of the nation, and therefore the settled policy of the Sovereign." Lord Esher, The Influence of King Edward and Other Essays, pp. 50-51 (London, 1915). DEMOCRATS AND DIPLOMATS 145 whether Edward's work, for the moment successful in preserving peace, was, on the whole, for the best; or whether England should not have avoided such definite commitments toward Russia and France. Both Conserv- ative and Liberal Cabinets, however, consented to the King's taking the initiative, the theory being that there was no encroachment on ministerial responsibility, since ministers were open to reject the King's suggestions. But, as a recent critic has pointed out: The action of the Sovereign on his own initiative in foreign affairs, so long as a system of secret diplomacy prevails, must render it a matter of uncertainty whether the Cabinet, who can only follow the suggestions of the Sovereign by making them their own, are adopting a line of action consonant with their own views, or a policy against their own inclination, but pressed on them owing to a situation created by the independent action of an irresponsible Sovereign. Interviews of the Sovereign with foreign Ministers and the heads of foreign States, unaccom- panied with a responsible Cabinet Minister, and letters written by the Sovereign to these personages on his own initiative, un- read and unre vised by responsible Ministers in fact independ- ent action in foreign affairs by the Sovereign must invariably, under a system of secret diplomacy, have the character of initiat- ing and formulating a policy in such a way as directly or indi- rectly to influence Ministers of the Crown far more powerfully than was probably intended. Independent action on the part of the Sovereign, while it may or may not be an "encroachment" on Ministerial responsibility, must be a potent factor in the moulding of Ministerial policy and as such is contrary to the theory and the practice of the Constitution, however beneficial its results in some cases may be. 1 J J. G. Swift MacNeill, "Foreign Policy and Royal Influence," Fortnightly Review, December, 1921. Concerning the future, Mr. MacNeill says: "The Great War has made intelligent participation by the people in the foreign policy of the Government of this country absolutely unavoidable. In every step of foreign policy they must be henceforth fully informed and consulted and obeyed. Viscount Bryce wrote in 1886: 'The day may come when in England the question of limiting the, at present, all but unlimited discretion of the Executive in foreign affairs will have to be dealt with.' That day has now come. Its coming has been manifested by the full and free communication to the people of these coun- tries of the foreign policy of the Government, which is subject to their revision and control. A Cabinet which no longer can control a foreign policy itself cannot give the control of that policy to a Sovereign. The control of foreign policy asserted since the war by the people would alone prevail to render control of that policy by a Sovereign an impossibility." Doubtful results of his policy Uncertainty of respon- sibility 146 NEW CONSTITUTIONS OF EUROPE Variable- ness in the rdle of the Crown Bagehot's view It seems certain that, with respect to foreign policy, George V has had much less concern than his father, 1 although there will probably be disclosures that the Crown played a not inconsiderable part in the Balkan and Russian diplomacy of the war. This problem of royal influence is an excellent illustration of the peculiarly flex- ible character of the English constitution. In Lord Courtney's words: "The special and almost unique charac- teristic of the Constitution is that it is subject to constant and continuing growth and change. It is a living organ- ism absorbing new facts and transforming itself. Its changes are sometimes considerable, even violent, and then for long periods the movement is almost impercepti- ble, although it is quickly realized when we compare the outcome presented at different points of time. The Constitution of to-day is different from what it was fifty years since and fifty years hence it will certainly be differ- ent from what it is to-day." 2 For more than a half century the control of diplomacy has been discussed in England. Bagehot expressed the opinion that "treaties are quite as important as most laws and to require the elaborate assent of representative as- semblies to every word of the law and not to consult them even as to the essence of the treaty is prima facie ludi- crous." If it was argued, he said, that the whole truth could not be told as to treaties, his answer would be that the whole truth could not be told as to laws; for all import- ant laws affected vested interests which had to be treated just as delicately and with as much manipulation of lan- guage as the feelings of any foreign country. 3 J " Nobody in England has now any fear of interference on the part of the Crown, for the conduct both of the last sovereign, Edward VII, and of the pres- ent sovereign is understood to have been irreproachably constitutional in every respect, and has never elicited popular criticism." Lord Bryce, "The Life of Disraeli, V, VI," American Historical Review, Vol. XXVI, p. 682 (July, 1921). *The Working Constitution of the United Kingdom and Its Outgrowth, p. 3 (New York, 1901). *The English Constitution, pp. 35-42 (2nd American ed.). DEMOCRATS AND DIPLOMATS 147 The instruments of control over foreign affairs by Par- liament have for the most part been indirect the general responsibility of the cabinet, the control of the purse, the debate on the Foreign Office vote, and questions addressed to the Secretary of State for Foreign Affairs. None of these has been very effective. The Cabinet now domi- nates the Commons. To deny supplies is a dangerous weapon for the legislature to use. Sessions have passed without a debate on the Foreign Office vote. 1 And if they have not sacrificed their veracity, ministers have at least been exceedingly skilful in answering questions. Thus, before the war the "obligations of honor" toward France were inquired about several times in the House of Com- mons, but the extent of England's commitments was not disclosed. 2 A parliamentary committee on foreign affairs has been proposed a number of times. 3 More than once Parlia- ment has discussed the advisability of subjecting all treaties to legislative ratification; on one occasion a motion to this effect failed by only four votes. 4 After the con- clusion of the Peace Conference the Prime Minister did introduce "a bill for carrying into effect the Treaty of Peace between His Majesty and certain other Powers." Unquestionably this created a momentous precedent of genuine constitutional significance. Was this a recogni- tion of the right of Parliament to control foreign policy; or was the practice resorted to more by grace of the execu- tive than because of any positive demand on the part of the House of Commons? The proposed Anglo-American ^onsonby, Democracy and Diplomacy, p. 50. 5 See Parliamentary Questions, March 24, 1913; June 11, 1914; and Lord Lore- burn, How the War Came, p. 102. 3 For references to the debates see Heatley, Diplomacy and the Study of Inter- national Relations, p. 265; and Willoughby and Rogers, op. cit., p. 250. 4 March 19, 1886. In the debate Mr. Gladstone said: "The present system cannot possibly be defended as an ideal system," but he protested that executive and legislative functions should not be mixed up and that the House of Com- mons in its legislative capacity could not take upon itself executive duties. Indirect control by the Commons Peace Treaty submitted to Parliament Commons not consulted apart from treaties 148 NEW CONSTITUTIONS OF EUROPE Instance of the Mesopo- tamian Mandate guarantee to France contained a specific clause that it should not become binding without parliamentary ap- proval; but that was probably an evidence of the desire of Mr. Lloyd George to avoid responsibility rather than a recognition of Parliament's constitutional right. Since the Peace Conference, furthermore, it is notorious that England's foreign policy has been conducted, apart from the making of treaties, with slight consultation with the House of Commons. One interesting illustration of this was furnished in February, 1921, when the government was asked for a copy of the Mesopotamian Mandate. Mr. Bonar Law, the then leader of the Government in the House of Com- mons, laid down the startling proposition, not only that the Mandate must be submitted to the League of Nations first, but also that thereafter there was no power in the Commons to revoke it even in the matter of financial responsibility. This meant that the English Parliament might, without its knowledge, be committed to foreign adventures of very serious consequences and entailing material expenditures; the House of Commons could do nothing except express a lack of confidence in the ministry after the fact. Immediately there was an outcry in the press and in Parliament. On February 23 the Govern- ment reconsidered its extreme position. Mr. Bonar Law said: "We shall circulate the terms of the mandates, which have already been submitted to the League of Na- tions, to the House. I may add, however, that in our view this is very similar to the negotiation of a treaty which must be carried out by the Government of the day. But of course, as in the case of a treaty, Parliament would have the right to refuse to adopt it." 1 With that state- 1 See letters to the London Times, February 23, February 24, March 22, 1921, and the debate in the House of Lords, March 14, 1921. A letter of Sir Eric Drummond, Secretary General of the League of Nations, announced that it was no concern of the League "whether or not the terms of the mandate were discussed by the legislature of the mandatory power before submission to the Council." The London Times (weekly ed.), April 15, 1921. DEMOCRATS AND DIPLOMATS 149 ment of existing constitutional practice Parliament was apparently content. 1 In Italy Signor Giolitti proposed to amend the constitu- tion so as to require treaties to be approved by Parliament. His bill provided that "treaties and international under- standings, whatever their subject and their character, are only valid after they have been approved by Parliament. The government of the King can only declare war with the approval of the two chambers." In urging his bill Signor Giolitti said that "foreign policy should be subject to the widest and freest possible discussions in Parliament and the people ought to feel assured that it be directed above all things to the ends of peace and constructive work"; but Signor Giolitti went out of office before his bill could be passed at the session of 1921. 2 Parliamentary control in Norway is more a matter of custom than of constitutional provision. No Norwegian Government can now venture to make any treaty or other agreement with foreign powers, whether dealing with mil- itary, commercial, or other relations, without first sub- mitting such treaties or agreements to Parliament for its sanction. The usual procedure is for a special parliamen- tary committee to be set up for the purpose of examining the so-called secret protocols of the Government. These proto- cols disclose the decisions made by the Cabinet concerning military matters and secret diplomatic affairs. The com- mittee reports to Parliament how the subjects dealt with have been handled by the Government and approves or 1 "The contention of Lord Loreburn, that 'we are not a self-governing nation in foreign affairs ' is truer to-day than it ever was. There is no real parliamen- tary control; ' the idea of a Foreign Affairs Committee in the House, such as most foreign Chambers possess, has been allowed to drop, and any real reform of the diplomatic service is as far off as ever. Facts such as these explain the function of the 'Council of Action'; the underlying notion was sound, though the pro- cedure was a defiance of sound constitutional practice. Foreign politics are pre-eminently a field in which neglect exacts bitter punishment, and we could have wished that it was still possible to play the mosquito to a deadened public opinion." "A Farewell Survey," The New Europe, October 28, 1920. *E. D. Morel, "Giolitti's Bill to Abolish Secret Diplomacy," Foreign Affair*, January, 1921. Giolitti's proposal in Italy Norwegian practice 150 NEW CONSTITUTIONS OF EUROPE Swedish practice French Commission on Foreign Affairs Control of foreign affairs in the new governments criticizes the Government's acts. It may thus be said that " Parliament is in due course made acquainted with all the decisions of the Government in regard to foreign affairs, and it is of course true that the mere existence of this post control has a certain preventive effect because the Govern- ment must always be prepared to answer for all its acts of Parliament." 1 A similar commission is provided in Sweden to confer with the King as frequently as he summons it; but it is not a parliamentary committee in the ordinary sense since it operates only in consultation with the Government and does not report to the chamber. In practice, members of the committee, when not bound by a pledge of secrecy, are free to communicate with their friends in the parlia- mentary parties; but this, as is obvious, is a rather meagre concession to complete parliamentary supervision. 2 The model for these legislative committees is the French Commission on Foreign Affairs. This commission may summon before it any persons whose vote may be of a nature to guide it in its deliberations and may request a minister himself to appear and explain his policies. While secret treaties in France are not unknown, it is probably correct to say that this commission exercises a more con- stant and effective supervision over the executive than is exercised by the parliamentary body hi any other coun- try. 3 The new constitutions follow the model of France. Certain classes of treaties are enumerated that require legislative ratification; inferentially other treaties may be concluded by the executive. W T ar and peace may be de- clared only by the legislature. In most of these constitu- H^scar Pedersen, "Foreign Policy Control in Norway," Foreign Affairs, December, 1921. *Axel Brusewitz, "Parliamentary Control of Foreign Affairs in Sweden," Foreign Affairs, January, 1922. 3 See Barthelemy, Democrat et politique itrangSre, pp. ISO ff. and 322 ff. (Paris, 1917.) DEMOCRATS AND DIPLOMATS 151 tions no provision is made for a commission of foreign affairs similar to the French, although presumably such commissions may be established under the standing orders of the parliaments without express constitutional author- ization. It is probable, also, that the legislative com- mittees which operate during parliamentary 1 recesses will have some competence with regard to foreign affairs. In Germany, however, a commission is created on the French plan which may sit whether the Reichstag is in session or not. There will thus be two legislative agencies empow- ered to supervise the executive when the full parliament is not meeting. In the Weimar constituent assembly, serious objections were raised to this proposal of a com- mission on foreign affairs. It was urged that the com- mission would evidence distrust of the government, and that, acting as an organ of surveillance, it would embarrass the conduct of foreign relations. The principal answer to these arguments was that there had been no unfavorable results in countries which used the commission system. 2 It is interesting to note that even though the new con- stitutions contain liberal provisions for the initiative and referendum they make no attempt to bring foreign affairs within the scope of direct government. Indeed, the Esthonian constitution perhaps the most extreme in this respect specifically excludes foreign affairs from the operation of the referendum. Until a recent Swiss con- stitutional amendment the referendum on treaties had never been incorporated in any constitution except the French constitution of 1793. 3 In April, 1913, the proposal 'See above, p. 34. *Brunet, The New German Constitution, p. 151. M. Brunei suggests that the principal function of the commission may be to serve as an organ which will "bring the influence of politically experienced personalities of the Reichstag to bear on the professional agencies of the diplomatic service." 'Art. 50 required declarations of war, treaties of peace, alliance, and commerce to be proposed, discussed, and promulgated like laws, and for laws this constitu- tion provided an optional referendum. Esmein, Elements du droit constitution- nel, pp. 356-699 (Paris, 1909, 5th ed.). Legislative Committees Swiss referendum on treaties 152 NEW CONSTITUTIONS OF EUROPE Swiss referendum on joining the League of Nations was made by the initiative to add to Article 89 of the Swiss constitution the following clause: "International treaties concluded for an indeterminate period or for more than fifteen years are likewise submitted to the people for adoption or rejection if the demand is made by thirty thousand active citizens or by eight cantons." The cham- bers had recently accepted an unpopular treaty and its opponents suggested this expedient of a referendum to control foreign policy in the future. The vote on the proposal, postponed on account of the war, was not held until January, 1921. The measure carried by a large majority (388,365 to 158,688), every canton being in favor of it except Uri and Thurgau. 1 There was a referendum in Switzerland on the proposition of joining the League of Nations, May 16, 1920. Seventy- six per cent of the electorate voted, a very high percentage, 415,819 being in favor and 323,225 being against. Eleven and one-half cantons voted for, and ten and one-half against, the proposal. A change of ninety-four popular votes in Appenzell Exterior would have tied the canton vote and resulted in defeat of the proposal. 2 This con- stitutional amendment came after a long agitation for direct control in foreign affairs and after much discussion of the present complicated situation with regard to treaty ratification in Switzerland. 3 The amendment as adopted would seem to have all the vices and none of the merits of a plebiscite in foreign affairs. That is to say, it is sub- brooks, "Swiss Treaty Initiative," American Political Science Review, August, 1921. *Brooks, "Swiss Referendum on the League of Nations," American Political Science Review, August, 1920. J The problem is ably discussed by M. Edouard Georg, Le controle du peuple tur la politique exterieure (Geneva, 1916). He gives a detailed and careful anal- ysis of the cantonal referenda in the rare cases in which treaties are concluded between the cantons and foreign nations and in cases of inter-cantonal concor- dats. There is also an interesting discussion of the Landsgemeinden and a full analysis of questions arising when treaties involve changes in laws and the plea of urgency is made as to decrees putting treaties into effect and thus avoiding a referendum. DEMOCRATS AND DIPLOMATS 153 ject to all the objections that questions of diplomacy are too difficult, that they require too immediate action, and that their bilateral character would cause too many difficulties with other states to allow them to be subject to popular vote. On the other hand, a good many of the controversies in Switzerland had concerned commercial treaties modifying customs regulations; by this amend- ment commercial treaties would not be directly involved since their life is brief. The result of the constitutional change will probably be to persuade the Government to put a time limit of less than fifteen years on all its inter- national agreements a result which, generally speaking, will no doubt be beneficial. 1 'John Stuart Mill, "Treaty Obligations," Fortnightly Review. Vol. VIII, p. 715 (N. S., 1870). M. Georg advocates a commission of foreign affairs for Switzerland. He cites a proposal to have such a commission extra-parliamentary, Switzerland already having twenty such bodies, some with administrative and some with only consultative authority. The suggestion was that the commission be com- posed of professors of international law, retired diplomats and economists, and composed thus "of men whose career has put them in touch with the interna- tional interests of the country; it could give valuable advice to the Federal Coun- cil and the political department." Such a commission, however, would have incomplete powers, for it could only advise, and the author, therefore, inclines to a parliamentary body. Like most foreign observers he assigns a too impor- tant r6le in the formulation of policy to the American Senate Committee on Foreign Affairs. A parliamentary committee in Switzerland would have two important advantages: "it would permit deputies who were particularly com- petent in the matter of foreign politics to express their opinions with full knowl- edge, and it would establish a very effective liaison between the chambers and the executive authority." (P. 234.) M. Georg, however, advocates the commission as an alternative to the referendum, if it is thought necessary to add to the numerous existing guarantees another restriction on the competence of the Federal Council in foreign policy. Le controle du peuplc rur la politiquc exttrieure. Probable results in Switzerland The American concept of a constitu- tion CHAPTER VIII INDIVIDUALISM AND SOCIALISM A CONSTITUTION is a body of rules or maxims defining the scope of public authority and determining the manner of its exercise; but except in this elementary respect, the American and European conceptions of constitutional law are not in agreement. 1 In the United States, the federal and state constitutions are written documents. It is not easy to change them. Amendments require greater for- mality, more mature deliberation, and greater unanimity than is the case with ordinary laws. They may not be enacted by Congress or the state legislatures alone. American constitutions, moreover, are intended to protect the citizen against unconstitutional action by the execu- tive or legislature. These branches of the government have only a limited competence and in the exercise of such powers as they have, they may not encroach on the sphere of individual liberty that the constitution guarantees to private persons. These limitations and rights are en- forced by the courts. The American judiciary is the ar- biter between the powers of the executive and legislature on the one hand and the rights and immunities of private persons on the other. Judicial supremacy is the keystone of the American political system. x " There is between constitutional and ordinary laws a difference in degree. Constitutional laws, by reason of their importance, are superior to ordinary laws. They have for their end the organization of the state, the regulation of the political form of the government; all the organs of the state are created by them and they cannot be violated, any more by the organ to which is entrusted the exercise of the legislative function than by the other organs. Laws cannot trans- gress constitutional dispositions; they are absolutely dependent on the funda- mental and superior law of the constitution." Jean Gajac, De la distinction des lots constitutionettes et des lois ordinaires, p. 3 (Bordeaux, 1903). But this injunction against transgression is moral not legal. 154 INDIVIDUALISM AND SOCIALISM 155 These distinctively American elements of a constitution are incorporated only to a very limited extent in the char- ters that have been adopted by the new states of Europe. This is the case in spite of the fact that the "founding fathers" in Europe had the American constitution before them. They apparently preferred the European model. The new constitutions define the scope of public authority and determine the manner of its exercise; but they may be changed by the legislature alone, and there is for the most part no application of the doctrine of judicial supremacy the courts may not refuse to give effect to laws on the ground that they are contrary to the constitution. All of the new constitutions are, of course, definite written documents. 1 Some lacunce are apparent and some obscurities will doubtless cause difficulty, but the attempt has been made to meet all probable contingencies. Documentary constitutions were inevitable. In Europe the Hungarian common-law constitution (so similar to that of England) stood alone; of the succession states of the Austro-Hungarian Monarchy only Hungary could make use of it in order to graft governmental usages upon an accustomed system. The other new states had to create their political institutions. though the republicans (England, 1647) "rejected the common law, and re- garded Magna Charta as 'a beggarly thing' Cromwell himself only insisting on 'Somewhat like a Magna Charta' the pretensions of a virtually non-represent- ative legislature had brought home to them the necessity of a check for it. The royalists could regard the old fundamental law as such a check. That alterna- tive was not open to the republicans. It was a double-edged weapon. The principles of the common law were as destructive of their own theories as they were of parliamentary sovereignty. A check on that sovereignty must be found, however, and the idea of a fundamental law supplied it. If an ancient funda- mental law if Magna Charta could curb the King or the Parliament, why could not a new document be drawn embodying their own principles and free from the encumbrance of the old law, which should be binding upon and unal- terable by the legislative power? Such a notion received the assent of the more extreme republicans because it restricted Parliament; it was favored by the more conservative, as Cromwell, because it offered a protection against the too sudden and sweeping changes which the radicals were clamoring for. And so we have the trial of a new thing in English history the written constitution." C. H. Mcllwain, The High Court of Parliament and It$ Supremacy, pp. 91-92 (New Haven, 1910). Not adopted by the new states Written constitu- tions were inevitable Advantage of written constitu- tions Conditions necessary for flexible constitu- tions 156 NEW CONSTITUTIONS OF EUROPE For peoples unused to self-government a documentary constitution has the advantage of being more workable than a system that makes custom and political morality more important than rule. Moreover, a documentary constitution "appears to the people as the immediate out- come of their power, the visible image of their sovereignty. It is commended by a simplicity which contrasts favorably with the obscure technicalities of an old common law constitution." The taste of the multitude is for "ideas level with their comprehension, sentiments which need no subtlety to be appreciated, propositions which can be expressed in unmistakable positives and negatives." 1 These considerations have not been without importance in the new states of Europe. Flexible constitutions, Lord Bryce pointed out, have an affinity for an aristocratic form of government; "there is a sort of natural attraction between an aristocracy and an undefined and elastic form of government." It needs knowledge and skill to work a flexible constitution suc- cessfully; one of three conditions is necessary: Either (1) the supremacy must remain in the hands of a polit- ically educated and politically upright minority, or (2) the bulk of the people must be continuously and not fitfully interested in and familiar with politics, or (3) the bulk of the people, though legally supreme, must remain content, while prescribing certain general principles, to let the trained minority manage the details of the business of governing. Of these conditions the first has disappeared from nearly all civilized countries. The second has always been rare, and in large industrial countries is at pres- ent unattainable. The best chance of success is therefore to be found in the presence of the third; but it needs to be accom- J Bryce, "Flexible and Rigid Constitutions," Studies in History and Jurispru- dence, p. 200 (New York, 1901). Lord Bryce said that "rigid" constitutions are those which could not be changed by the ordinary legislative authority, while "flexible" constitutions are those which are always undergoing some change, however slight, in the course of ordinary legislation. The essay is highly suggestive but the distinction is not clearly marked. France's constitu- tion, for example, is certainly flexible if compared with the American, even though it may not be amended by the ordinary legislative processes, and legisla- tion (like the electoral law of 1919) may be passed which, though not part of the constitution, is really a fundamental change in the governmental machinery. INDIVIDUALISM AND SOCIALISM 157 panied by a tone and taste and sense of public honor among the people which will recoil from the mere demagogue. 1 None of these conditions is to be found in the new states of Europe; and while their constitutions are not flexible in the sense of Lord Bryce's classification, they are not sufficiently above the plane of ordinary legislation to avoid the dangers that a flexible constitution invites. 2 They are sufficiently elastic to enable revolutions to be met half way, although the danger is that this elasticity, by the very facility for change that it permits, may lead perhaps to a hasty misuse of power. Furthermore, it is only in the course of time, if at all, that these new documents will come to possess an element of sacrosanctness. "A constitution which has come down in the form of a mass of laws, precedents, and customs is not only more mysterious, and therefore more august, to the minds of the ordinary citizens than one they can read in a document, but is not felt by them to lie at their mercy and to live only by their pleasure. A constitution em- bodied in a document which they have seen drafted, and have enacted by their votes, has no element of antiquity or mystery. It issues from the sovereignty of the people, it reminds them of their sovereignty, it suggests to them nothing more exalted. Perhaps it has been the work of one party in the state; and if that party becomes discred- ited, it may share the discredit. . . . The fact that an old constitution represents a long course of progressive development, or, to use a somewhat vulgarized term, of 'Bryce op. cit., pp. 160-161. The Czechoslovak constitution may be amended by the legislative body against the wishes of the upper chamber, a referendum (permissible in the case of ordinary laws) being specifically forbidden. Nevertheless, one writer says: "The National Assembly, having the choice between a rigid and a flexible system of constitution, adopted the first because of the very bad experience under the Hapsburg rule, when the constitution was often and arbitrarily changed, and so had no opportunity to become established in the respect of the people " Dedek, "The Constitution of Czechoslovakia," Journal of Compara- tive Legislation and International Law, Third Series, Vol. III. p. 115 (January, 1921). Not found in the new states Advantages of "cus- tomary" constitu- tions 158 NEW CONSTITUTIONS OF EUROPE Bills of rights Lack of judicial supremacy evolution, gives it some claim on the respect of imaginative or philosophical minds. These sources of moral strength have been found sufficient in many countries to secure an enduring life for political institutions which the people, or a legislative body, had it in their power to change, p,nd which, in some instances, ought to have been replaced by other institutions more suited to their altered environ- ment." 1 All of the new constitutions have elaborate bills of rights. This is perhaps the principal feature drawn from the American constitutional system. But an inspection of the clauses will show that guarantees given by one hand are often taken away by the other. Freedom of the press shall be assured unless limited by law; private property shall not be taken for public use without the payment of compensation unless otherwise determined by law. The guarantees are hortatory rather than mandatory; they safeguard the citizen against arbitrary executive action, but for the most part the legislative power is apparently not limited by the bills of rights. Moreover, even if it were limited, the legislature itself would be judge of the scope of the limitations. For the American doctrine of judicial supremacy found little favor. An attenuated bicameral theory, with the upper chambers being given only suspensory vetoes, is not particularly hospitable to the creation of what is in some respects a third legislative chamber a court with power to declare statutes uncon- stitutional. The popular representative body is not over- borne by a revisory chamber or by the judiciary. Execu- tive orders do have to run the judicial gauntlet and "the rule of law" is thus partly assured; but in the case of legislative acts the courts are limited to declaring whether they have been properly passed and promulgated. Some of the clauses of the constitutions dealing with this mat- ter are vague, but it would seem that only the Czecho- 'Bryce, op. cit., p. 143. INDIVIDUALISM AND SOCIALISM 159 slovak 1 and Austrian constitutions provide for any con- siderable measure of judicial review. 2 The new constitutions show at a glance that they permit indeed invite more extensive measures of socialization than have been hitherto resorted to by any constitu- tional government agrarian reform, land nationaliza- tion, state-managed coal mines, bread subsidies, unem- ployment doles. Even though they have decided against the communist philosophy and organization of Russia, the new states provide, almost as a matter of course, for action which in the United States would be denounced as "Bolshevistic." To describe the various experiments in legislation and administration would take us too far afield, but one general consideration deserves mention. The political philosophy of nationalization has many severe and acute critics. Little attention has been paid, however, to the fact that the experiences of the war and the provisions of the treaty settlements have greatly encour- aged socialistic enterprises. The individualist may ar- gue that nationalization is the worst possible system from the point of view of efficiency; he may say, with much truth, that the methods that were used to win the war 'A commentator on the Czechoslovak constitution has pointed out "that the charter of the Constitution is placed in its entirety under the special and effective protection of a Constitutional Court. It is intended that the Charter of the Constitution be the foundation stone of the whole life of the State, the fountain of the rights of all citizens. An ordinary law may not conflict with the Consti- tution without becoming null and void. The judgment of the Constitutional Court declaring a law invalid causes it or its defective part to lose its binding force for the future. This institution likewise serves as a protection of the rights of minorities whether racial or religious." Hoetzl, The Constitution of the Czecho- slovak Republic, p. 15 (Prague, 1920). Article 102 of the constitution, however, declares that "in the case of a law they [the judges] can only enquire as to whether it was properly promulgated." Article 1 declares that "enactments which are in conflict with the Constitutional Charter or with laws which may supplement or amend it are invalid." The Act of March 9, 1920, establishing the Constitutional Court declares that "laws promulgated either by the National Assembly or by the Diet of Russinia, which are in conflict with the Charter of the Constitution or with laws amending or supplementing it, are invalid." *See the complicated provisions of Arts. 89, 138, 139, 140, 144, of the Austrian constitution as to judicial review. See also Art. 13 of the German constitution. New con- stitutions invite socializa- tion Effects of the war, on nationaliza- tion Effect of the war on private property In England In the new states 160 NEW CONSTITUTIONS OF EUROPE would never be tolerated in times of peace. The fact remains, nevertheless, that when the need of the state was greatest it resorted to these much-decried methods of control; England, France, and the United States became socialist countries by popular consent. They will never be able to restore the individualistic economy that pre- vailed before the war; and no doubt the tendency will be to resort to similar emergency expedients when the menace is not a foreign enemy but a wasteful economic system. From a moral standpoint, moreover, the war pre- sented the institution of private property in a new light. Conscription had more than military importance. It may be argued that if the life of the citizen belongs to the state in its time of need, then surely his property does also. As an English writer has said: "The communist state which says to the citizen, 'You must work and surrender your private property or you will have no vote,' asks, after all, somewhat less that the bourgeois military state which says to the conscript, 'Fight and give your person to the state or we will kill you.' For great masses of the British working classes conscription answered the ethical problem involved in the confiscation of capital. The Eighth Commandment no longer stands in the way." 1 If this be true of England, the Eighth Commandment stands even less in the way of the peoples of the succession states; for their need is greater, their sacrifices have been more material, and the prospects of a good life on the basis of the pre-war individualist economy are almost entirely illusory. They are too sanguine that economic miracles like those performed during the war are possible in times of peace; but their philosophy was derived, in part at least, from the examples of states which now incline toward the other extreme in the relation of politics to economics and in which the continuance of the war-time methods of con- trol is bitterly denounced. 'Norman Angell, The Fruits of Victory, p. 73 (London, 1921). INDIVIDUALISM AND SOCIALISM 161 If, furthermore, it has seemed justifiable and proper for states to pay their internal war debts in irredeemable paper or by the making of huge drafts upon large private incomes, why, it is asked, may not a state find money in the same way for its social experiments? Protection of a citizenry against poverty may be as high a purpose as protection against a foreign enemy. Before the war the future legal status of private property was a matter for interesting theoretical speculation; it is now a subject of practical politics; it is perhaps the chief problem of Euro- pean statecraft. This fact, which can be considered as al- most entirely independent of the challenge of the Russian Revolution, is nowhere revealed more fully than in the fun- damental laws of the political children of the Peace treaties. Another fact to which inadequate attention has been paid is that the Peace treaties themselves prevent a re- turn to the pre-war economy and cause a continuance of state control. They make a large measure of national tutelage compulsory in the enemy states; and if the terms of the treaties are carried out, this will be true for a gen- eration. The treaties provide for the wholesale confisca- tion of the private property of enemy nationals in allied countries and in territories taken from Germany, 1 and in case of default by Germany on her reparation payments, balances due Germany on private accounts need not be paid over. The barrier that this provision would raise to trade was so obvious that the British Government sought to 'As conservative an organ as the Quarterly Review deals with this clause in severe fashion: "We are justified in regarding this policy with the utmost appre- hension, not only because of its injustice, but also because it is likely to form precedents of a most mischievous character in the future. If, it will be said, the Allied Governments ended their great war for justice and right by confiscat- ing private property and ruining those unfortunate individuals who happened to have investments outside their own country, how can private wealth at home complain if a Labor Government proposes to confiscate private property in any business which it thinks suitable for 'nationalization'? Under another provi- sion the Reparation Commission is actually allowed to demand the surrender of German properties and German enterprises in neutral countries. This will be found in Article 235, which introduces a quite novel principle in the collection of indemnities." "Economics of the Peace," Quarterly Renew, April, 1920. 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