Notwithstanding these deterring circ.u.mstances, it is not improbable that some sort of const.i.tution might have been established but for the excesses of the more zealous Liberals, culminating in the murder of the dramatist Kotzebue in 1819, whereby the king was thrown into an att.i.tude, first of apprehension, and finally of uncompromising reaction. By a.s.suming joint responsibility for the Carlsbad Decrees of October 17, 1819, he surrendered completely to the regime of "stability" which all the while had been urged upon him by Metternich.
June 11, 1821, he summoned a commission to organize a system of provincial estates;[362] but at the same time the project of a national const.i.tution and a national diet was definitely abandoned. Under (p. 249) repression Prussian liberalism languished, and throughout the remainder of the reign, i.e., to 1840, the issue of const.i.tutionalism was not frequently raised. In Prussia, as in Austria, the widespread revolutionary demonstrations of 1830 elicited little response.
[Footnote 362: The system was created by royal patent June 5, 1823.]
*265. The Diet of 1847.*--Upon the accession of Frederick William IV., son of Frederick William III., in 1840, the hopes of the Liberals were revived. The new sovereign was believed to be a man of advanced ideas.
To a degree he was such, as was manifested by his speedy reversal of his father"s narrow ecclesiastical policy, and by other enlightened acts. But time demonstrated that his liberalism was not without certain very definite limits. February 13, 1847, he went so far as to summon a Vereinigter Landtag, or "united diet," of Prussia, comprising all members of the existing eight provincial a.s.semblies, and organized in two chambers--a house of lords and a house containing the three estates of the knights, burghers, and peasants. But the issue was unhappy. As Metternich had predicted, the meeting of the Diet but afforded opportunity for a forceful rea.s.sertion of const.i.tutional aspirations, and the a.s.semblage refused to sanction loans upon which the sovereign was bent until its representative character should have been more completely recognized. The king, on his part, declared he would never allow "to come between Almighty G.o.d in heaven and this land a blotted parchment, to rule us with paragraphs, and to replace the ancient, sacred bond of loyalty." The deadlock was absolute, and, June 26, the Diet was dissolved.
*266. The Revolution of 1848.*--The dawn of const.i.tutionalism was, however, near. The fundamental law under which Prussia still is governed was a product--one of the few which endured--of the widespread revolutionary movement of 1848. Upon the arrival in Berlin of the news of the overthrow of Louis Philippe (February 24) at Paris and of the fall of Metternich (May 13) at Vienna, the Prussian Liberals renewed with vigor their clamor for the establishment in Prussia of a government of a const.i.tutional type. The demand was closely related to, yet was essentially distinct from, the contemporary project for the inauguration of a new const.i.tutional German Empire. As was proved by the vagaries of the Frankfort Parliament (May, 1848, to June, 1849), conditions were not yet ripe for the creation of a closely-knit empire;[363] and one of the reasons why this was true was that a necessary step toward that culmination was only now about to be taken, i.e., the introduction of const.i.tutional government in the important kingdom of Prussia. Apprehensive lest (p. 250) the scenes of violence reported from Paris should be re-enacted in his own capital, Frederick William acquiesced in the demands of his subjects in so far as to issue letters patent, May 13, 1848, convoking a national a.s.sembly[364] for the consideration of a proposed const.i.tution. Every male citizen over twenty-five years of age was given the right to partic.i.p.ate in the choice of electors, by whom in turn were chosen the members of this a.s.sembly. May 22, 1848, the a.s.sembly met in Berlin and entered upon consideration of the sketch of a fundamental law which the king laid before it. The meeting was attended by disorders in the city, and the more radical deputies further inflamed public feeling by persisting in the discussion of the abolition of the n.o.bility, and of a variety of other more or less impracticable and revolutionary projects. The king took offense because the a.s.sembly presumed to exercise const.i.tuent functions independently and, after compelling a removal of the sittings to the neighboring city of Brandenburg, he in disgust dissolved the body, December 5, and promulgated of his own right the const.i.tutional charter which he had drawn.
[Footnote 363: See p. 198.]
[Footnote 364: Known technically as Versammlung zur Vereinbarung der preussischen Verfa.s.sung.]
*267. Formation of the Const.i.tution.*--At an earlier date it had been promised that the const.i.tution to be established should be "agreed upon with an a.s.sembly of the nation"s representatives freely chosen and invested with full powers;" but it had been suggested to the king that the way out of the existing difficulty lay in issuing a const.i.tutional instrument independently and subsequently allowing the Landtag first elected under it to submit it to a legislative revision, and this was the course of procedure which was adopted.[365] Elections were held and, February 26, 1849, the chambers were a.s.sembled. Having recognized formally the instrument of December 5, 1848, as the law of the land, the two bodies addressed themselves forthwith to the task of revising it. The result was disagreement and, in the end, the dissolution of the lower house. The const.i.tution of 1848 had been accompanied by an electoral law establishing voting by secret ballot and conferring upon all male citizens equal suffrage. Upon the dissolution of 1849 there was promulgated by the king a thoroughgoing modification of this democratic measure, whereby voting by ballot was abolished and parliamentary electors were divided into three cla.s.ses whose voting power was determined by property qualifications or by (p. 251) official and professional status. In other words, there was introduced that peculiar three-cla.s.s system which was already not unknown in the Prussian munic.i.p.alities, and which, in both national and city elections, persists throughout the kingdom to the present day. In the elections which were held in the summer of 1849 in accordance with this system the democrats refused to partic.i.p.ate. The upshot was that the new chambers, convened August 7, 1849, proved tractable enough, and by them the text of the const.i.tution, after being discussed and revised article by article, was at last accorded formal approval. On the last day of January, 1850, the instrument was duly promulgated at Charlottenburg.[366] By Austria, Russia, and other reactionary powers persistent effort was made during the ensuing decade to influence the king to rescind the concession which he had made. He refused, however, to do so, and, with certain modifications, the const.i.tution of 1850 remains the fundamental law of the Prussian kingdom to-day.[367]
[Footnote 365: The confusion of const.i.tutional and ordinary statutory law inherent in this arrangement has influenced profoundly the thought of German jurists.]
[Footnote 366: On the establishment of const.i.tutionalism in Prussia see (in addition to works mentioned on p. 201) P. Matter, La Prusse et la revolution de 1848, in _Revue Historique_, Sept.-Oct., 1902; P. Devinat, Le mouvement const.i.tutionnel en Prusse de 1840 a 1847, ibid., Sept.-Oct. and Nov.-Dec., 1911; Klaczko, L"agitation allemande et la Prusse, in _Revue des Deux Mondes_, Dec., 1862, and Jan., 1863; C.
Bornhak, Preussische Staats-und Rechtsgeschichte (Berlin, 1903); H. von Petersdorff, Konig Friedrich Wilhelm IV. (Stuttgart, 1900); and H. G. Prutz, Preussische Geschichte, 4 vols. to 1888 (Stuttgart, 1900-1902). For full bibliography see Cambridge Modern History, XI., 893-898.]
[Footnote 367: As is true in governmental systems generally, by no means all of the essential features of the working const.i.tution are to be found in the formal doc.u.ments, much less in the written const.i.tution alone. In Prussia ordinances, legislative acts, and administrative procedure, dating from both before and after 1850, have to be taken into account continually if one would understand the const.i.tutional order in its entirety.]
*268. Nature of the Const.i.tution.*--The const.i.tution of Prussia is modelled upon that of Belgium. Provisions relating to the powers of the crown, the competence of the chambers, and the functions of the ministers are reproduced almost literally from the older instrument.
None the less, the two rest upon widely differing bases. The Belgian fundamental law begins with the a.s.sertion that "all powers emanate from the nation." That of Prussia voices no such sentiment, and the governmental system for which it provides has as its cornerstone the thoroughgoing supremacy of the crown.[368] The Liberals of the mid-century period were by no means satisfied with it; and, sixty years after, it stands out among the great const.i.tutional doc.u.ments of the European world so conspicuous by reason of its disregard of fundamental democratic principle as to justify completely the (p. 252) charges of anachronism which reformers in Prussia and elsewhere are in these days bringing against it. It provides for the responsibility of ministers, without stipulating a means whereby that responsibility may be enforced. There is maintained under it one of the most antiquated and undemocratic electoral systems in Europe. And, as is pointed out by Lowell, even where, on paper, it appears to be liberal, it is sometimes much less so than its text would lead one to suppose.
It contains, for example, a bill of rights, which alone comprises no fewer than forty of the one hundred eleven permanent articles of the instrument.[369] In it are guaranteed the personal liberty of the subject, the security of property, the inviolability of personal correspondence, immunity from domiciliary visitation, freedom of the press, toleration of religious sects, liberty of migration, and the right of a.s.sociation and public meeting. But there is an almost total lack of machinery by which effect can be given to some of the most important provisions relating to these subjects. Some guarantees of what would seem the most fundamental rights, as those of public a.s.semblage and of liberty of teaching, are reduced in practice to empty phrases.[370]
[Footnote 368: Dupriez, Les Ministres, I., 350.]
[Footnote 369: Arts. 3-42. Robinson, Const.i.tution of the Kingdom of Prussia, 27-34.]
[Footnote 370: Lowell, Governments and Parties, I., 286.]
The process of const.i.tutional amendment in Prussia is easy. With the approval of the king, an amendment may at any time be adopted by a simple majority of the two legislative chambers, with the special requirement only that an amendment, unlike a statute, must be voted upon twice, with an interval of three weeks between the two votes.
During the first ten years of its existence the const.i.tution was amended no fewer than ten times. Of later amendments there have been six, but none more recent than that of May 27, 1888. The Prussian system of amendment by simple legislative process was incorporated, in 1867, in the fundamental law of the North German Confederation (except that in the Bundesrath a two-thirds vote was required); and in 1871 it was perpetuated in the const.i.tution of the Empire.[371]
[Footnote 371: There is an annotated English version of the Prussian const.i.tution, edited by J.
H. Robinson, in the _Annals of the American Academy of Political and Social Science_, Supplement, Sept., 1894. The original text will be found in F.
Stoerk, Handbuch der deutschen Verfa.s.sungen (Leipzig, 1884), 44-63; also, with elaborate notes, in A. Arndt, Die Verfa.s.sungs-Urkunde fur den preussischen Staat nebst Erganzungs-und Ausfuhrungs-Gesetzen, mit Einleitung, Kommentar und Sachregister (Berlin, 1889). The princ.i.p.al treatises on the Prussian const.i.tutional system are H. Schulze, Das preussisches Staatsrecht, auf Grundlage des deutschen Staatsrechtes (Leipzig, 1872-1874); ibid., Das Staatsrecht des Konigreichs Preussen, in Marquardsen"s Handbuch (Freiburg, 1884); L. von Ronne, Das Staatsrecht der preussischen Monarchie (Leipzig, 1881-1884); and H.
de Grais, Handbuch der Verfa.s.sung und Verwaltung in Preussen und dem deutschen Reiche (11th ed., Berlin, 1896). A good brief account is that in A.
Lebon, etudes sur l"Allemagne politique, Chap. 4.]
III. THE CROWN AND THE MINISTRY (p. 253)
*269. Status of the Crown.*--At the head of the state stands the king, in whom is vested the executive, and a considerable share in the legislative, power. The crown is hereditary in the male line of the house of Hohenzollern, following the principle of primogeniture. An heir to the throne is regarded as attaining his majority on the completion of his eighteenth year. It has been pointed out that the German Emperor, as such, has no civil list. He has no need of one, for the reason that in the capacity of king of Prussia he is ent.i.tled to one of the largest civil lists known to European governments. Since the increase provided for by law of February 20, 1889, the "Krondotations Rente," as it appears in the annual Prussian budget, aggregates 15,719,296 marks; besides which the king enjoys the revenues from a vast amount of private property, comprising castles, forests, and estates in various parts of the realm. There are also certain special funds the income from which is available for the needs of the royal family.
*270. Powers.*--The powers of the crown are very comprehensive.[372] It is perhaps not too much to say that they exceed those exercised by any other European sovereign. The king is head of the army and of the church, and in him are vested, directly or indirectly, all functions of an executive and administrative character. All appointments to offices of state are made by him immediately or under his authority.
The upper legislative chamber is recruited almost exclusively by royal nomination. And all measures, before they become law, require the king"s a.s.sent; though, by reason of the sovereign"s absolute control of the upper chamber, no measure of which he disapproves can ever be enacted by that body, so that there is never an occasion for the exercise of the formal veto. To employ the language of a celebrated German jurist, the king possesses "the whole and undivided power of the state in all its plenitude. It would, therefore, be contrary to the nature of the monarchical const.i.tutional law of Germany to enumerate all individual powers of the king.... His sovereign right embraces, on the contrary, all branches of the government. Everything which is decided or carried out in the state takes place in the name of the king. He is the personified power of the state."[373] (p. 254) Except in so far as the competence of the sovereign is expressly limited or regulated by the const.i.tution, it is to be regarded as absolute.
[Footnote 372: They are enumerated in articles 45-52 of the const.i.tution. Robinson, Const.i.tution of the Kingdom of Prussia, 36-37.]
[Footnote 373: Schulze, Preussisches Staatsrecht, I., 158.]
*271. The Ministry: Composition and Status.*--The organization of the executive--the creation of ministerial portfolios, the appointment of ministers, and the delimitation of departmental functions--rests absolutely with the king, save, of course, for the necessity of procuring from the Landtag the requisite appropriations. Beginning in the days of Stein with five, the number of ministries was gradually increased until since 1878 there have been nine, as follows: Foreign Affairs;[374] the Interior; Ecclesiastical, Educational, and Sanitary Affairs; Commerce and Industry; Finance; War; Justice; Public Works; and Agriculture, Public Domains, and Forests. Each ministry rests upon an essentially independent basis and there has been little attempt to reduce the group to the uniformity or symmetry of organization that characterizes the ministries of France, Italy, and other continental monarchies. Departmental heads, as well as subordinates, are appointed with reference solely to their administrative efficiency, not, as in parliamentary governments, in consideration of their politics or of their status in the existing political situation. They need not be, and usually are not, members of either of the legislative chambers.
[Footnote 374: The Minister of Foreign Affairs is at the same time the Minister-President of Prussia and the Chancellor of the Empire. On the functions of the various ministries see Dupriez, Les Ministres, I., 448-462.]
For it is essential to observe that in Prussia ministers are responsible only to the sovereign, which means that the parliamentary system, in the proper sense, does not exist. The const.i.tution, it is true, prescribes that every act of the king shall be countersigned by a minister, who thereby a.s.sumes responsibility for it.[375] But there is no machinery whereby this nominal responsibility can be made, in practice, to mean anything. Ministers do not retire by reason of an adverse vote in the Landtag; and, although upon vote of either legislative chamber, they may be prosecuted for treason, bribery, or violation of the const.i.tution, no penalties are prescribed in the event of conviction, so that the provision is of no practical effect.[376] Every minister possesses the right to appear on the (p. 255) floor of either chamber, and to be heard at any time when no member of the house is actually speaking. In the exercise of this privilege the minister is the immediate spokesman of the crown, a fact which is apt to be apparent from the tenor of his utterances.
[Footnote 375: Art. 44.]
[Footnote 376: Art. 61. Robinson, Const.i.tution of the Kingdom of Prussia, 40. In the words of a German jurist, "the anomaly continues to exist in Prussia of ministerial responsibility solemnly enunciated in the const.i.tution, the character of the responsibility, the accuser and the court specified, and at the same time a complete lack of any legal means by which the representatives of the people can protect even the const.i.tution itself against the most flagrant violations and the most dangerous attacks." Schulze, Preussisches Staatsrecht, II., 694.]
*272. The Ministry: Organization and Workings.*--The Prussian ministry exhibits little solidarity. There is a "president of the council of ministers," who is invariably the Minister for Foreign Affairs and at the same time the Chancellor of the Empire, but his functions are by no means those of the corresponding dignitary in France and Italy.
Over his colleagues he possesses, as president, no substantial authority whatsoever.[377] In the lack of responsibility to the Landtag, there is no occasion for an attempt to hold the ministry solidly together in the support of a single, consistent programme. The ministers are severally controlled by, and responsible to, the crown, and the views or policies of one need not at all be those of another.
At the same time, of course, in the interest of efficiency it is desirable that there shall be a certain amount of unity and of concerted action. To attain this there was established by Count Hardenberg a Staats-Ministerium, or Ministry of State, which occupies in the Prussian executive system a position somewhat similar to that occupied in the French by the Council of Ministers.[378] The Ministry of State is composed of the nine ministerial heads, together with the Imperial secretaries of state for the Interior, Foreign Affairs, and the Navy. It holds meetings at least as frequently as once a week for the discussion of matters of common administrative interest, the drafting of laws or of const.i.tutional amendments, the supervision of local administration, and, in emergencies, the promulgation of ordinances which have the force of law until the ensuing session of the Landtag. There are certain acts, as the proclaiming of a state of siege, which may be performed only with the sanction of this body. The fact remains, none the less, that, normally, the work of the several departments is carried on independently and that the ministry exhibits less cohesion than any other in a state of Prussia"s size and importance. It is to be observed that there is likewise a Staatsrath, or Council of State (dating originally from 1604 and revived in (p. 256) 1817), composed of princes, high officials of state, ministers, judges, and other persons of influence designated by the crown. It may be consulted on legislative proposals, disputes as to the spheres of the various ministries, and other important matters. In barrenness of function, however, as in structure, it bears a close resemblance to-day to the British Privy Council.[379]
[Footnote 377: The office of Chancellor was discontinued with the death of Hardenberg and that of Minister-President subst.i.tuted. The Chancellor possessed substantial authority over his colleagues. Since 1871, the Minister-President has been a Chancellor, but of the Empire, not of Prussia.]
[Footnote 378: The Staats-Ministerium was called into being, to replace the old Council of State, by an ordinance of October 27, 1810. Its functions were further elaborated in cabinet orders of June 3, 1814, and November 3, 1817. The const.i.tution of 1850 preserved it and a.s.signed it some new duties.]
[Footnote 379: On the organization and functions of the Prussian ministry see Dupriez, Les Ministres, I., 345-462; von Seydel, Preussisches Staatsrecht, 91-104; von Ronne, Das Staatsrecht der preussischen Monarchie, 4th ed., III.; Schulze, Das preussische Staatsrecht, II.]
*273. Subsidiary Executive Bodies.*--Two other executive organs possess considerable importance. These are the Oberrechnungskammer, or Supreme Chamber of Accounts, and the Volkswirthschaftsrath, or Economic Council. The Oberrechnungskammer has existed continuously since 1714.
Its function is the oversight and revision of the finances of the departments, the administration of the state debt, and the acquisition and disposal of state property. Its president is appointed by the crown, on nomination of the Staats-Ministerium. Its remaining members are designated by the crown on nomination of its own president, countersigned by the president of the Staats-Ministerium. All enjoy the tenure and the immunities of judges, and the body collectively is responsible, not to the Ministry of State, but to the crown immediately. In status and function it resembles somewhat closely the French Cour des Comptes. The same group of men, with additional members appointed by the Bundesrath, serves as the Chamber of Accounts of the Empire. The Volkswirthschaftsrath consists of seventy-five members named by the king for a term of five years. Its business is to give preliminary consideration to measures vitally affecting large economic interests, to determine what should be Prussia"s position in the Bundesrath upon these measures, and to recommend to the crown definite courses of action regarding them. Its function is purely consultative.
CHAPTER XIII (p. 257)
THE PRUSSIAN LANDTAG--LOCAL GOVERNMENT
I. COMPOSITION OF THE LANDTAG
*274. The House of Lords: Law of 1853.*--Legislative authority in the kingdom of Prussia is shared by the king with a national a.s.sembly, the Landtag, composed of two chambers, of which the upper is known as the Herrenhaus, or House of Lords, and the lower as the Abgeordnetenhaus, or House of Representatives. Under the original provisions of the const.i.tution, the House of Lords was composed of (1) adult princes of the royal family; (2) heads of Prussian houses deriving directly from the earlier Empire; (3) heads of families designated by royal ordinance, with regard to rights of primogeniture and lineal descent; (4) 90 members chosen by the princ.i.p.al taxpayers of the kingdom; and (5) 30 members elected by the munic.i.p.al councils of the larger towns.
By law of May 7, 1853, this arrangement was set aside and in its stead it was enacted that the chamber should be made up entirely of persons appointed by the crown in heredity or for life; and, on the authorization of this measure, there was promulgated, October 12, 1854, a royal ordinance by which the composition of the body was fixed substantially as it is to-day. The act of 1853 forbids that the system thus brought into operation be further modified, save with the a.s.sent of the Landtag; but this does not alter the fact that the present composition of the Prussian upper house is determined, not by the const.i.tution of the kingdom, but by royal ordinance authorized by legislative enactment.
*275. The House of Lords To-day.*--The component elements of the House of Lords to-day are: (1) princes of the royal family who are of age; (2) scions of the Hohenzollern-Hechingen, Hohenzollern-Sigmaringen, and sixteen other once sovereign families of Prussia; (3) heads of the territorial n.o.bility created by the king, and numbering some fifty members; (4) a number of life peers, chosen by the king from among wealthy landowners, great manufacturers, and men of renown; (5) eight t.i.tled n.o.blemen appointed by the king on the nomination of the resident landowners of the eight older provinces of the kingdom; (6) representatives of the universities, of religious bodies, and of towns of over 50,000 inhabitants, presented by these various organizations respectively, but appointed ultimately by the king; and (7) an (p. 258) indefinite number of members, chosen by the king for life on any ground whatsoever, and under no restriction except that peers must have attained the age of thirty years.
The composition of the chamber is thus extremely complex. There are members _ex-officio_, members by royal appointment, members by hereditary right. But the appointing power of the crown is so comprehensive that the body partakes largely of the character of a royal creation. Its membership is recruited almost exclusively from the rigidly conservative landowning aristocracy, so that in att.i.tude and policy it is apt to be in no degree representative of the ma.s.s of the nation, at least of the industrial cla.s.ses. As a rule, though not invariably, it is ready to support cordially the measures of the crown. In any event, through exercise of the unrestricted power of creating peers, the crown is in a position at all times to control its acts. The number of members varies, but is ordinarily about 300.[380]
[Footnote 380: Lebon, etudes sur l"Allemagne politique, 187-197.]
*276. The House of Representatives.*--The Abgeordnetenhaus, or House of Representatives, consists of 443 members--362 for the old kingdom, 80 added in 1867 to represent the newly acquired provinces, and one added in 1876 to represent Lauenburg. Representatives are elected for a five-year term, and every Prussian is eligible who has completed his thirtieth year, who has paid taxes to the state during as much as three years, and whose civil rights have not been impaired by judicial sentence. Every Prussian who has attained his twenty-fifth year, and who is qualified to vote in the munic.i.p.al elections of his place of domicile, is ent.i.tled to partic.i.p.ate in the choice of a deputy. At first glance the Prussian franchise appears distinctly liberal. It is so, however, only in the sense that comparatively few adult males are excluded from the exercise of it. In its actual workings it is one of the most undemocratic in Europe.
*277. The Electoral System.*--Representatives are chosen in electoral districts, each of which returns from one to three members--as a rule, two. There has been no general redistribution of seats since 1860 (although some changes were made in 1906), so that in many districts, especially in the urban centers whose growth has fallen largely within the past fifty years, the quota of representatives is grossly disproportioned to population. Until 1906 the entire city of Berlin returned but nine members, and its quota now is only twelve.[381] The enfranchised inhabitants of the district do not, moreover, vote (p. 259) for a representative directly. The essential characteristics of the Prussian electoral system are, first, that the suffrage is indirect, and, second, that it is unequal. The precise method by which a representative is elected[382] may be indicated as follows: (1) each circle, or district, is divided into a number of Urwahlbezirke, or sub-districts; (2) in each Urwahlbezirk one Wahlman, or elector, is allotted to every 250 inhabitants; (3) for the choosing of these Wahlmanner the voters of the sub-district are divided into three cla.s.ses, arranged in such a fashion that the first cla.s.s will be composed of the payers of direct taxes, beginning with the largest contributors, who collectively pay one-third of the tax-quota of the sub-district, the second cla.s.s will include the payers next in importance who as a group pay the second third, and the last cla.s.s will comprise the remainder; (4) each of these cla.s.ses chooses, by absolute majority, one-third of the electors to which the Urwahlbezirk is ent.i.tled; finally (5) all the electors thus chosen in the various Urwahlbezirke of the district come together as an electoral college and choose, by absolute majority, a representative to sit in the Abgeordnetenhaus at Berlin.[383]