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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 



copykight, 1922, by 

dotjbleday, page & company 

auj rights reserved, including that of 

translation into foreign languages, 

including the scandinavlan 



PRINTED IN THE UNITED STATES 

AT 

THE COUNTKY LIFE PRESS, GARDEN CITy, N. t 

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 assemblj^ 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. JUGOSLA^^A 

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 

2. Constitution of Belgium, February 7, 1831, 

with Amendments of 1893 and 1921 


499 
501 


II. 


France 

1. Historical Note 

2. Fundamental Laws of France .... 


521 
523 


III. 


Italy 

1. Historical Note 

2. Fundamental Statute of March 4, 1848 

3. Law of Guarantees of May 13, 1871 . . 


550 
551 
561 


IV. 


The Recognition of New States since 1913 

1. Note on Recognition of Certain States , 

2. List of Recognition of New States . 


565 
570 


V. 


Report of the Second Chamber Conference 


573 


Index 


' 


603 



PART I 
INTRODUCTION 



THE NEW CONSTITUTIONS 
OF EUROPE 



CHAPTER I 
PRINCES AND PARLIAIVIENTS 

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 httle 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 



Effects of 
the war on 
democracies 



2 



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 



3 



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.^ 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."^ 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 Year-Boole, 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 
ZoUverein 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, Modem Democracies, Vol. 11, 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.^ 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.^ 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, Riunania, Serbia, 
Montenegro, Greece, Italy, Spain, Holland, Belgimn, Denmark, Sweden, 
Norway, Luxemburg), and 3 despotic monarchies (Russia, Germany, and 
Turkey). In Asia he listed one lepublic (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. 

^"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 coimtry 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 crumbhng 
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.^ 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.- 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 

^"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 liabiUty 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. 17(>- 
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."^ 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."^ 
This separation of powers was realized to a degree in the 



^Henry 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 ^vith 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.^ 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 UEsprit des Lois. In any 
event, it may truthfully be said that England had the 
"mother of parliaments. "^ 

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." SuflSce 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.^ 

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 

^"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 plarmed. 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.^ 
Political Great Britain adapted her constitution to the require- 

doctrines ments of the nineteenth century in comparative calm; 

but progress on the continent of Europe was accompanied 
by much violence.^ "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- 

'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 discom-aged, the tendency of 
popular government to diffuse itself." These events were the foimdation 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 amoimt to a necessity — 
though masters of reasoned eloquence, from Burke to JVIacaulay, have put upon 
it a saving face of continuous law and order. In Italy, Belgiima, 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 chmax of its sway over men's minds 
in the sixties. The third was sociaHsm, which was on the 
high road to universal absorption of philosophy when the 
period closed."^ 

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 HohenzoUerns and Hapsburgs yielded. By 1880 only 
Russia was governed without a written constitution. 

During the agitations and conflicts that attended the progress 
to this end, theoretical debate developed new and striking doc- 
trines only as to the content, not as to the desirability of the 
written code. There was the greatest diversity among the ac- 
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- 

^Dunning, Political Theories from Rousseau to Spencer, pp. 247, 250 (New 
York, 1921). 



Doctrine 
of con- 
stitution- 
alism 



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.^ 

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^ could say in 1911 that since 1870 the 
cause of republicanism had made little progress in 
Europe.^ Democracy had been busy capturing parlia- 
ments and securing extensions of the suffrage;^ but it had 
not been assaulting crowns. 

^Dunning, op. cit., pp. 252-253. 

=H. A. L. Fisher, now President of the Board of Education. 

^"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 in 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). 

^Universal male suffrage was adopted in elections to the Reichstag in 1871, 
in Spain 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.^ 

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."^ 

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 

iPisher, op. cit., p. 320. 
Ubid., pp. 326-327. 



Due to 
character of 
monarchs 



Due to 
social and 
economic 
problems 



Due to 

Bismarck's 

success 



ism 



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 dehberately 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- jj^ jjjg Category of the influences that had rehabilitated or 

strengthened monarch3\ The British crown was necessary 
to keep the Empire together.^ 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 

*0n 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 HI 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, imder 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.^ 

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.^ 

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.' But his analysis of the forces working to preserve 
monarchy is sufficiently acute to warrant the extended 

^Fisher, op. cit., p. 329. Sir Henry Maine, in his criticism of popular institu- 
tions, admitted that the United States "disproved the once imiversal assump- 
tions that no Repubhc could govern a large territory, and that no strictly Re- 
pubUcan 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. 

'On this point, see Chapter VH. 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.^ 

Moreover, for the most part kings were behaving them- 
selves; and although conflicts with legislatures were fre- 
quent,^ there were popular as well as royal victories. 
Despite some doubts as to whether the royal veto power 
had really fallen into desuetude^ and some alarms as to the 
share of Edward VII in foreign policy,'' 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- 

»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. 

*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 in 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.^ 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: 



Monarchical 
sentiment 
in Central 
Europe 



Friendly 
abdications 



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 Principahty 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. 



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. ^ 

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.^ 

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. 

'"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^ 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^ 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 



^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 IH, 
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 Twihght 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."^ 
Effect on Lord Bryce thought that "the disappearance of this sense 

business ^^ social 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 

^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 OUgarchy 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. Belloc 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 of 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. i 
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. 

^See the provisions in the constitutions below {e.g., Prussia and Belgium) 
requiring the acceptance of government allowances. 



Effect of 

paying 

legislators 



20 



NEW CONSTITUTIONS OF EUROPE 



Other 
organiza- 
tions 
compete 
with legisla- 
tures 



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."^ 
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 



^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 in private, was put in the possession of facts and information of wider 
scope than the Estimates Committee of the House of Conomons 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."^ 

To what is probably one of the most important consid- 
erations bearing upon the impairment of parliamentary 
prestige, Lord Bryce gave but scant notice. He men- 
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 
this. In the opinion of certain critics of the House of 
Commons, the press has been a most vital factor in the 
decline of parliamentary authority .^ 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 difncult 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 of!, 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. 



Effect of 
influence 
the press 



of 



Lord 

Esher's 

view 



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 'pubhc opinion' seems 
about to require more 'direct working' than the parha- 
mentary system has hitherto afforded, or is Hkely to 
afford."^ 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 

'Lord Esher, The Influence of King Edward and Other Essays, p. 103 (London, 
1915). 

"The rapid development in the means of commimication; 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. 

'"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 pecidiar 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 wTite 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 Monlfdy, August, 1921. 



PRINCES AND PARLIAMENTS 



23 



hundreds. . . . This is the real menace to the representative 
system, and to the authority of Parhament.i 

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. ^ 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 poUtics 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 gro^Ti up in Government quarters a direct action party which 
hkes 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." 

^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 
pohtical machinery which now seems to be functioning 
with questionable efficiency.^ These factors would cause 
difficulty even if the peoples were accustomed to self- 
government, which they are not. INIoreover, 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 

^Discussion of the weaknesses of, and methods of strengthening, parliamentary 
institutions is not confined to England. Thus, an anonjTnous 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 tinn 
to their subordinates. The responsibility, however, is Parliament's, for the 
ministers remain in office on its sufferance. The vsTiter 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 
imder-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 parha- 
mentary tasks and yet it would cost them dearly to admit this to constituencies 
blessed by imiversal suffrage. Parliament must call on specialists in legislative 
drafting, in economics, and in budget accounts. Only by securing expert advice 
can the ignorance of memters 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 shoidd 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 res-ponsabiliie du Parlement 
sons le regime parlementaire (Paris, 1918). 



PRINCES AND PARLIAISIENTS 



25 



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.^ 



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."" 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." 

^The Nation (London), January 22, 1921. 

-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.^ 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.^ 

It is a striking fact that in all of the new constitutions 
the attempt is made to secure some form of responsible 
parliamentary government.^ "The relation of the Su- 
preme Executive to the Legislative organ is one of the 



^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 wth 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 Em-opean and American Constitutions" but nevertheless afford "a 
striking contrast to the conununism of the Soviet Russian Government." Po- 
land's law makers " succeeded in the diflBcult 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." 

^hey are, however, considered incidentally in this Chapter and in Chapter IV. 

'"For the modern world the choice virtually lies 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."^ 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."^ 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.^ 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.^ 



^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 ff. 
(Boston, 1896). 

*Redslob, "La constitution prussienne," Revue du droit public et de la science 
politique. Vol. XXXVIII, p. 191 (Avril-Mai-Juin, 1921). 



Types of 
executive 
relation to 
legislature 



28 



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.^ 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 Parhament. 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 ^_®°'^^ 
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 



type 



30 NEW CONSTITUTIONS OF EUROPE 

Reasons for Ministry does not have the power to dissolve the Chamber 
ng IS an ^£ Deputies. ResponsibiHty without the complementary 

differences 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. 

Types in 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.^ The President of the Reich has larger powers 
than the President of the French Republic,^ particularly 

'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. 

^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. 



the new 
States 



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.^ There is ministerial responsibility, but the 
power of dissolution is much more limited than in Ger- 
many. The Assembly (Sejm) 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 

^Sait, 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 



LEGISLATURES AND BUREAUCRATS 33 

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).^ 

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.^ 



*R. T. Clark, "The Constitution of Esthonia," Journal of Comparative Legis- 
lation and International Law, Third Series, VOl. Ill, p. 2-19 (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 (A\Til-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.^ "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."^ 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- 

^See Willoughby and Rogers, op. cit., pp. 215, 251. 

2" 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 

mit the Government of our state to remain for one moment 
without the control nor yet the aid of the legislative body.^ 

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. "^ 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.^ 

Attention should also be directed to the attempt that 

^Hoetzl, The Constitution of the Czechoslovak Republic, p. 15 (Prague, 1920). 
For the text of the Austrian article referred to, see Willoughby and Rogers, op. 
cU., p. 377 n. 

*Ren4 Brunet, The New German Constitution, p. 152 (New York, 1922). 
'See Redslob, op. cit., p. 193. 



36 



NEW CONSTITUTIONS OF EUROPE 



Democrati- 
zctioa of 
administra- 
tion 



The new 

states try 
experiments 



has been made in some of the new states to democratize 
the pubHc 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 cfHces (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."^ 
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 wTiter has said: "To the many political 
cries that disturb the, in any case, micertain 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 ad^dsers 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, 19£0. 



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.^ 

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. 

^This fact finds illustration in two recent books on constitutional changes in 
the United States and England. 

An American writer, WilUam 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 efBcient 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 WTitten of their o^vn insti- 
tutions in much the same way that Mr. MacDonald has WTitten of America. 
They are, however, more concerned with economics than with politics. National- 
ized industries and services, district coimcils, 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.^ 

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- 

^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 
councU 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 suflBcient 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 

second 

chambers 



for 



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 alwaj^s 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.^ 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 IVlinis- 
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 

^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 IVIinistry. 



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.^ 

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. 



^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 pohtical 
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 



42 



NEW CONSTITUTIONS OF EUROrE 



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 vsill be conservative in character and its reconstltution will be accom- 
panied, in the Conservative plan, by the abolition of the Parliament Act. Now 
the Parliament x\ct is the guarantee to any Liberal or Labor government — and 
it is the possibility of a Labor government that the Conservatives keep in \-iew — 
that they can get any large piece of reform substantially imchanged 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 diu-ing 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 annoimcement had been 
made of the appointment of any other body to consider the problem. 



ment act 
temporary 



SECONDARY CHAMBERS 43 

assert their legal competence. There was "no check or 
effective criticism on the measm-es 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."^ 

After 1886 the House of Lords rejected certain Liberal The parlia 
measures, but its own composition and powers were not 
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.^ 
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. "^ 

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 L-ish 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 opportimity 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. 

^On 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.^ 

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 aller 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,^ 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.^ 



^The 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 their 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. 

^Lord Esher quotes C. F. G. Masterman on the condition of England: "The 
rather ignoble role 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 diflS- 



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.^ 

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 Comm.ons, 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 Coimty 
Coimcil would be required to pledge themselves beforehand to vote for A or B. 
Thus the malign influence of the party caucus will be still fm-ther 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 



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 w^thout 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."^ 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 : 



Criticism Now we cannot imagine the country emerging from the war 

by the and finding the ultimate control of legislation given over to a 

London small body of elderly Notables, elected and derived, peers and 

Nation commoners, clerical and lay. We cannot even see either House 

surrendering its forces into such hands. AVhom 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.^ 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. 

^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 imdistinguished 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 officio 
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 



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 tlie 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."i 



The 

Bryce 

report 

seeks 

analogies 



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 w^sh of the majority. 
Here alone can the fundamental basis of society or the 
wdiole of our Constitution be changed by the same process 
as is applied to the passage of a Drainage Act."^ 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 

^The Nation (London), May 4, 1918. 

"^Parliamentary Debates (Lords), Fifth Series, Vol. XLIV, col. 69-t (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 libertj-, 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 httle more than two years." 

Viscoimt 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 
measiu^e 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 other\\ise 
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." 



50 



NEW CONSTITUTIONS OF EUROPE 



Defect in 

analogy 
of France 



Role of 
the French 
Senate 



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 stabihzer 
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 : 



Test of 
argument 
for a second 
chamber 



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. 



The English 
process of 
legislation 



52 NEW CONSTITUTIONS OF EUROPE 

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.i 

Law-making In continental countries, moreover, ministries have 
''y . . wide powers of collateral legislation which are seldom fully 

disclosed in the provisions of written constitutions. This 
tradition will doubtless be continued bj' 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.^ The notorious Article 14 
of the Austrian constitution^ gave this power explicitly; 
but it was a power that w^as 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 w^ith the problem of a second chamber. If it is unable 
to fall back upon administrative legislation, a ministry is 

ij. 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 ciWl 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. 

'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 conunand a majority or secure the passage of its 
egislation, may dissolve, has not equal force. 

And Professor Morgan summarizes his conclusion as 
follows : 

^ATiereas in our own country the Government is dependent on Unique 
the Lower House of the Legislature (the House of Conunons), position of 
in foreign countries it is more often dependent on the L^pper 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 unicjue, and the pretensions of our L^pper House are 
both higher and more dangerous than those advanced by any 
other country living under a constitutional system.^ 

'Morgan, op. cit., pp. 14-15. 



54 NEW CONSTITUTIONS OF EUROPE 



Relation of 
problem of 
cabinet 
dominance 



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- 
Not the least of its levers has been the possibility 



mons. 



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.^ 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 effectivelj^ the cart will be pulled and in 
what direction remains to be seen. 



iProfessor Morgan ventured to prophesy concerning the workings of the 
Parliament Act. "I think," he said, "that it ^411 enormously increase the 
legislative acti\'ity 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 ftar 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.^ For economic purposes 

* " 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 necessarilj^ 
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."^ 

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 smaU, 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. 



iH. A. L. Fisher. The Value of Small States, 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."^ 

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 



^Fisher, op. cit., 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, \ll, 4 (Jowett's translation). 



Their world 
contribu- 
tions 



Sources for 
study of 
popular 
government 



58 



NEW CONSTITUTIONS OF EUROPE 



they will apply new tests to democratic principles and 
inevitably modify their working."' 

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- 



^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 in its outer garment of economic circumstance.^ 

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-suflBcient 
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.^ The absence of some of 
these factors in certain of the pre-war states of Europe 

iFisher, The Value of Small States, pp. 17-18. 

-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^ appears to have emerged 
into "something closely resembling a Great Power. "^ 
"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 
monarchism 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."^ 

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 

^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. AV. Fodor, "The Menace of the Little Entente," The 
New Republic, April 19, 1922. 

'R. W. Seton- Watson, "The Little Entente," The Nciv Europe, October 11, 
1920. 



SEGMENTATION AND FEDERATION 61 



concluded with Czechoslovakia early in 1922.^ 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."- 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."^ 

\Miatever 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 



62 



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.^ 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.^ 

The problem of federalism in the new Germany was 
inextricably interwoven with the problem of Prussia's 
preponderance in the old Empire.^ 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 diflBcult questions 
that the makers of the German constitution faced. They 
were debated at great length and with great passion."* 
Naturally the lesser states held Prussia especially respon- 
sible for the catastrophe that had fallen upon them all. 

^See below, pp. 241 ff. 

2See below, pp. 254, 255. 

3See below, pp. 213 ff. 

*For a brief account of the controversy in the Constituent Assembly, and 
the proposals that were brought forward, see Brunei, The Neic German Con- 
slitution. Chapter II (New York, 1922). 



SEGJVIENTATION 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, \^^lile 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 Httle 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 bj' which future 
changes might be effected. These provisions are some- 
what complicated and must be read largely in the hght of 
the problem of Prussia's relative size and power.^ 

"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;- hence Prussia could readily block 
any proposal to alter her boundaries. Needless to say, 
how^ever, "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- 

lArt. 18 of the constitution. 
"Art. 76. 



SEGMENTATION AND FEDERATION Q5 



eluding those who do not participate, and by three-fifths 
of those who do participate.^ 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,- although not of the Bundesrat.^ 

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, 1921.^ 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-o^Tied coal mines in the 
plebiscitary area were of immense importance to Ger- 
many.^ Possible transformation of the Prussian province 
of Upper Silesia^ into the member state of Upper Silesia 

iFor other details see Art. 18. 

^ince under the electoral law the number of memljers of the Reichstag is not 
determined by apportionment on the basis of population, but depends upon the 
number of voters v.ho participate in an election, it is impossible to say that 
Prussia ^^■ill always have an absolute majority. See below, p. 99. 

3Art. 61. 

*Art. 167. 

«BowTiian, The Neiv World, pp. 345, 346 (Yonkers, 1922). 
*The province was created by a Prussian law of October 14, 1919. Preussiche- 
gesetzblatl, 1919. No. 109. 



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.^ An amendment making possible the establish- 
ment of this state was adopted November 27, 1920.^ 

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.^ 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 
Regierungshezirtk Oppeln, a subdivision of the Prussian 
province of Silesia. 

^\rticle 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. 

^Reichsgesetzhlatt, 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.^ 
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 
Thiuingia 



Coburg 
unites with 
Bavaria 



Eighteen 
states in the 
Reich 



68 



NEW CONSTITUTIONS OF EUROPE 



American 
provision 
for 

admitting 
new states 



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 W^est 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 diflScult machinery provided for the possible partition 
of the overshadowing state of Prussia can be and will be 
made to operate. 



Definition 
of federal 
government 



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 tlian 
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."^ 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^ the Reich is given exclusive control. Over 
the second group^ 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. "^ 
In respect to the third group^ 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. ^ In the realm of 
finance tlie 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.^ 

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."^ 

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, 

lArt. 12. 
=Art. 11. 
'Erwin Jacobi, Einheitsstaai 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."^ 

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. ^ 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. 

ijacobi. Of. cit., pp. 9, 10. 
«Art. 76. 



Central 
powers 
may be 
increased 
by amend- 
ment 



The 

legislature 
may amend 
the 
constitution 



72 



NEW CONSTITUTIONS OF EUROPE 



Prussia 
makes 
question of 
federalism 
important 



In one aspect of the matter, it maj^ be, as Hugo Preuss 
has said, that "whether the German Repubhc 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."^ 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."^ Unquestionably some of their arguments are 
directed to points of no interest or importance whatever.^ 
A federal system is not changed into a unitary system by 
rechristening the units Lander in lieu of Siaaten. 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 nmnber of inhabitants, together 



^The Encyclopcedia 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. 

"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; Jacob!, Einheitsstaat oder Bundes- 
staat, p. G, et seq.; Poetsch, Handausgabe der Reichsverfassung, p. 25, et scq.; 
Wenzel, Festgabe fur Bergbohn, 1919, p. 159, et seq. lie cites as taking the op- 
posite view: Stier-Somblo, Reichsi'crfassung, p. 79 et seq.: Walter Jellinek, Revolu- 
tion und Reichsverfassung, in Jahrbuch des bffentlicJien Rechts, p. 81; Arndt, 
Reichsverfassung, 1919, p. 35. 

'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 imitary 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 
wnll 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- 
tb-ought first of all of a decomposition from within, but the Con- tion of 
stitutional 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.^ 



ijacobi, Einheitsstaat 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 ojfflcio German Emperor and who appointed, 
usually in one and the same person, the powerful Imperial 
Chancellor and the powerful Minister President of Prussia.^ 
She has lost certain specified vetoes^ 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.^ 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 
I^eich." 

The union of Austria with Germany was contemplated 
by both the German* and the Austrian^ constitutions but 
was prohibited by the Treaty of Versailles.® 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.^ 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 

iSee below, p. 213. 

^Arts. 5, 11, 35, and 37 of the old constitution. 

3Art. 63. 

^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." 

'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 sUghtly 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,^ 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.^ 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.' 

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.* Over 
the second and much less important group^ it has a legis- 



•The 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. 

'One 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. 

*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.^ Over the third group it 
has no power of execution and has the power to legislate 
only as to "fundamental principles."^ The Federal State 
has practically complete control over the sources of 
national, state, and local revenue,^ while the division of 
competence in respect to education was left for later 
determination by a federal constitutional law.'* Resid- 
uary powers belong to the states;^ 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;^ it may 
even bring about the dissolution of a state Landtag.^ 
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 

»Art. 15. See also Art. 16. -kit. 12. ^^rt. 13. 

«Art. 14. 8Art. 15. «Art. 98. 'Art. 100. 



SEGMENTATION AND FEDERATION 77 



Ruthenians.^ 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.^ 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 BanatjBacka, 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.^ A genuine Jugo- 
slav program called for a federation; but the program 
of a "Great Serbia" called for centrahzation. 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 
oflficial 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 their present indefinite 
status, which nets them complete independence in nearly 
all but name. A British imperial constitution is probably 
wholly out of the question.^ 

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., 
p. 253. 

-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. "^ 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.^ 

^MacDonald, The Case for Federal Devolution, p. 8 (London, 1920). 

''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 diflS- 
cult to understand and adds greatly to the cost of htigation. (3) 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 Oclober, 1919, the Prime Minister appointed a Con- 
ference on De\'olution, 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.^ 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 w^ould be made up of the 

responsibility of the House of Commons and has many other objections. (See 
also Willoughby and Rogers, op. cit., p. 2-19.) (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, 19'21]). (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. 

'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; 
"(i) upon the extent to which these differences are applicable to Welsh 

conditions and requirements; and 
" (3) upon the financial aspects and requirements of the measure." 

^e Conference on Devolution: Letter to Mr. SpeaJcer from the Prime Minister 
(with Appendices). Cmd. 69^, 19^20. 



Donald's 
plan 



SEGIMENTATION 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.^ 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.^ 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 

iSee above, pp. 45 S.; 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, pohce other than Metropolitan Police, poor law and vagrancy, 
prisons, reformatories); (3) ecclesiastical matters (burial law, and matters 
affecting religious denominations) ; (4) agricultiu-e and land (commons and en- 
closures, game laws, drainage, improvements, settled land acts, distress and 
teniu-e); (5) judiciary and minor legal matters (coroners, coimty 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, treasiu-e 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 siu-vey, 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 imions, 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.^ 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. ^ More- 
over, the so-called minorities treaties could not account 

1" 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. 

-"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. WTiat 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,^ Bulgaria,^ Serbia, and Portugal,^ 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.^ They are 



^For a description of the Swedish system, not outlined in this chapter, see 
Humphreys, Proportional Representation, Appendix III (Ix)ndon, 1911); E. von 
Ileidenstara, "System of Proportional Representation," in Historical and Statis- 
tical Handbook, published bv order of the Swedish Government, 2d. English ed, 
1914 (J. Guinchard, Ed.). 

^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 Hst system 
adopted, see Blatter fiir Wirtschaft- mid Socialpolitik (Switzerland, 1914) ; W. S. 
Munroe, Bulgaria and Her People, pp. 194-197. 

^Minority representation by the plan of limited voting was adopted in Portu- 
gal by a law of August 8, 1901. When Portugal became a repubhc 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 ff.) was applied to the four largest constituencies — two 
each in Lisbon and Oporto. Senators are elected by a plan of limited voting. 

^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.^ It is for the most 

1" 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 politics 



86 



NEW CONSTITUTIONS OF EUROPE 



Assumptions 
do not 
correspond 
to facts 



part assumed, moreover, that in the formation and activi- 
ties of tliese groups the voters act in purely vokmtary 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.^ 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 difiicult. 

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 diflBcult to say whether this or that group is 
held together chiefly bj^ 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."^ 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 

organizatioD 



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.^ 

But per- But whatever may be thought of the wisdom or un- 

manent wisdom, the effectiveness or ineffectiveness, of permanent 

exist political parties, they nevertheless exist and must be 

reckoned wuth 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 eflBciency. 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. 



The two- 
party 
system 



Multiple 
parties in 
European 
states 



Innumerable schemes have been devised for accom- 
plishing the purposes of proportional representation.^ 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 



^For a discussion of some of them see Humphreys, op. cit.; Commons, Pro- 
portional Representation (New York, 191l£); Williams, The Reform of Political 
Representation (London, 1918). 



Constitu- 
tions 
establish 
principle of 
proportional 
representa- 
tion 



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 onlj^ 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 (Landsiing) . 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.^ 
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 



'The 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. 



iPor 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 S. 

"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. 



1920 



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.^ 

Apart from the Faroes, which return one member, Danish 
Denmark (including Slesvig) is divided into 23 electoral ^^"^ °^ 
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,^ 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- 



92 



NEW CONSTITUTIONS OF EUROPE 



Results of 

1920 

election 



The 

Belgian 

system 



ence determined by the party managers^ 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,^ 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.' 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. 

'This 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 611ed. The total numVjer of votes for each list is divided successively by 
the numbers 1, 2, 8, 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. 3. 
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. 



PROPORTIONAL REPRESENTATION 93 



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,^ 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.^ 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) , 



^Dispositions du code electoral modifiies et completees par les lots du 9 Mai et 
des 17 et22 Octohre 1919. 

-For discussions of the Belgian scheme see Georges Lachapelle, La representa- 
tion proportionnelle en France ei en Belgique (1911); T. Petitjean, La representa- 
tion proportionnelle devant les chambres frangaises (1915); F. Goblet d'Ahiella, 
La representation proportionnelle en Belgique; La representation proportionnelle 
integrale (1910); Barriety, La representation proportionelle en Belgique (1906); 
Dubois, La representation proportionnelle soumise a Vexperience beige (1906); 
Humphreys, op. cit.. Chapter VIII and passim. 



In operation 
since 1899 



Distribution 
and assign- 
ment of 
seats 



94 NEW CONSTITUTIONS OF EUROPE 

which means that he votes for the entire hst but that his 
first preference is for a candidate who has not been given 
first place on the Hst. 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.^ Provision is also made for the elec- 
tion at the same time and in the same manner of sub- 
stitutes (siippleants) . 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 t^6 representation has had longer trial than any other in 

egian 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 Hst 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. 



system 



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.^ 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. ^ 



1" 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 commimal councils. 
. . . It is only in connection with the naming of the executive committees 
in the provinces (deputations permanentes) and in the communes (college des 
6chevins) 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 seals 
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 les elections communales, 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.^ 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, Eduskiinta; 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 tlie 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 flexibilitj' lends itself more read- 
ily to party manipulation than to the encouragement of 

iFor 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.^ The details cannot be set forth here.^ 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.^ According to 
a "Cabinet" decree of November 30, 1918, the several 



iThe results of elections are not usually announced for two or three weeks. 

'For a full description see Humphreys, op. dt., 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 w as not wholly imknown 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 coimcils in cities of over 10,000 inhabitants by the 
Wiirttemberg mimicipal 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 legislatiu-e 
in the free city of Hamburg. In 1908 proportional representation was intro- 
duced in Bavaria as applied to mimicipal coimcUors. It was hkewise applied 
to mimicipal coimcils 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 



NEW CONSTITUTIONS OF EUROPE 



Unsatis- 
factory 
results 



The 

Ministry's 
proposals 
of 1920 



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.^ 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,^ 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 .^ 

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 ,Bad gn syst em 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. 

iPor the text of the decree and some particulars in respect to the election, see 
Representation, No. 33, March, 1919. 

'Humphreys, op. cit., pp. 188 ff. 

*For a discussion of these criticisms, as well as of the projects proposed by the 
Ministry and the scheme finally adopted, see Brunei, The New German Cvn- 
ititution, 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 Hst. 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;^ 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 



iThese "unions" are quite difiFerent from the Finnish "compacts"; for in 
Germany the party is not limited to the nomination of three names upon a 
Hst, but many nominate a full set of candidates. Moreover, the "union" is a 
union of election districts, whereas the Finnish "compacts" are unions vrithin 
one election district. 



Immediate 

action 

necessary 



The 

"automatic" 
system 
adopted 



Circum- 
scription 
"unions" 



100 NEW CONSTITUTIONS OF EUROPE 



National 
list 



Provisions 
against 
"freak" 
parties 



additional seat. There is, however, no separate Hst 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 hst 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" 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 seat 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. ^ 

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 of 
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." Brimet, op. cii., 
p. 108. 

^For an analysis of the vote, see Representation, No. 37, August, 1920. 



Results in 

1920 

election 



Effect of 
national 
lists 



102 NEW CONSTITUTIONS OF EUROPE 



Proportional 
representa- 
tion in the 
German 
states 



The Italian 
system 
of 1919 



Method 
of voting 



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.^ 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.^ 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 

lArt. 17. See also the Prussian constitution, Article 33. 

^PreiLSsische Gesetzsammlung, 1920, pp. 559 ff. 

^In November, 1918, a bUl of Deputy Camera proposing the introduction 
of the scrutin de liste in place of the single member constituencies was referred 
to a parliamentary conamittee. 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 della Commissione Sulla 
j>ropo3ta di legge d'iniziativa 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 hst, 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 oflBcially 
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 diflBcult 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 panackage. 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.^ 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 suflScient to aflFect 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 
diflFerent 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" 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. ^ 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.^ This law is a bungling make- 
shift, a product of compromise between irreconcilable 
ideas, "ww melange incoherent,'" as the Journal des De- 
hats 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;^ 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.* 
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 



^Sait, Government and Politics of France, pp. 146 fif. (Yonkers, 1920). 

^The text of the law see below. Appendix II. 

'The law permits a division of populous departments into districts returning 
not less than three deputies each. 

*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.^ 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 bj' the number of candidates. In other 
words, the theory is that the average number of votes per 

iln consequence, "the Unified SociaHsts 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 Hst. 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 times it is 



Faults in 
method of 
assigning 
seats 



A muddled 
system 



108 NEW CONSTITUTIONS OF EUROPE 



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 prmted 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 tlie en- 
tire list 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.^ 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 scridin. 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 



iThe surplus votes of a party which has not obtained 20,000 votes (or the 
electoral numVjer, 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.^ 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.^ 

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.^ 
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. 



^The <letails of the system are briefly described by V. Joachim in an introduc- 
tion to The Constitution of the Czechoslovak Republic (Edition de la Societe 
I'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 



110 NEW CONSTITUTIONS OF EUROPE 



"Camul 
officiel" 



"Cumul 
prive" 



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.^ 

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 



^The reasons for this provision have been explained as follows: 

"First. It was desired to institute a corrective for panachage; it was feared 
that some individuals would be given the word to 'scratch' certa.ii 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 hst to the det- 
riment of the leaders of the party. These manoeuvres might result in the elec- 
tion of candidates httle 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'election et le renourcllement 
du Conseil National d'apres le systeme proportionnel, p. 9 (Lausanne, 1919). 

=Blank ballots are also provided; but the use of these and their effect upon 
the count need not be described. 



PROPORTIONAL REPRESENTATION 111 



privS)} 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. ^ The electoral quotient is 
determined by dividing the total votes {nominatifs and 
complementaires) of all the parties by one more than the 
number of seats to be filled.^ The several parties are then 

iThe cumul prive "enlarges the freedom of the voter"; but it has been de- 
nounced as "favoring the manoeuvres 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. 

^"The system of complementary votes, already in force in the laws of Geneva 
and Neuchatel, was introduced in order not to do injm-y 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 4 = 
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 fom* 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 conmiimal elections); 
(3) by dividing the number of votes of a party by the nmnber of names that it 
carries upon its list. For various reasons, which we cannot consider summariz- 
ing here, these three systems were rejected." KrafiFt 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 imder 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)} 

The candidates are assigned to seats in accordance with 
the numbers of their individual votes. ^ The differences 
between the votes of candidates of the same party will 
result from the cumul oficiel, from the ciimul privS, 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 

'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. 

-^Miere 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-halt 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."^ 

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.^ 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. ^ 



The Polish 
system 
proposed 
in 1922 



^Journal de Geneve, October 28, 1919; quoted in Representation, No. 36, May, 
1920. The election results were as follows: 



Radical-Democrat 

Socialist (including Grutleans) 
People's, Catholic and Conservative 
Peasant, Artisan and Middleclass 

Liberal-Democrat 

Democratic and Labor . . . . 

Evangelicals 

Union Helvetique 

Total 



VOTES 


SEATS 


POLLED 


WON 


213,653 


61 


197,458 


43 


157,186 


41 


144,538 


29 


28,497 


9 


12,193 


4 


6,031 


1 


2,360 


1 


761,916 


189 



SEATS IX 

EXACT 

PROPORTION 

53 
49 
39 
36 

7 

3 

1 

1 
189 



*This proposed law is briefly outlined in Weekly Neirs 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 
final 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. 



Proportional 
representa- 
tion in 
other Euro- 
pean states 



114 NEW CONSTITUTIONS OF EUROPE 

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 aflSliation 
with stronger groups.^ 

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.^ 

Proportional representation was adopted in Norway in 
1919, and the first parliament {Stortmg) 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,^ though not to the Senate,^ 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.^ 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. 

"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, Nos. 317, 351. 



PROPORTIONAL REPRESENTATION 115 

plan of casting ballots.^ The Esthonian and Danzig 
systems embody no unusual features. The short-hved 
Russian constituent assembly, which was elected under 
the Kerensky Government in November, 1917, was chosen 
by a scheme of proportional representation closely follow- 
ing the Belgian plan;^ 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 of mechanism. 

The principle of proportional representation is mani- 
festly no longer a political issue in most of the countries 
of Europe; it is an accepted phenomenon of the new era. 
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 



The 

principle 
no longer 
an issue 



^"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."^ 

»Morley, On Politics and History, pp. 197. l'J8 (New York, 1914). 



CHAPTER \T 
FUNCTIONAL REPRESENTATION 

Functional, occupational, interest, or class representa- 
tion — by whatever name it is called — is by no means a 
modern idea. Indeed modern systems of representation 
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.^ 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.^ Prior to 1907 members of the 
Austrian lower house {Ahgeordnetenhaus) were chosen by 
five classes of voters, at least two of which — the cham- 
bers of commerce and the great landowners^ — 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.^ 

lArt. 33. 

^See below, p. 214. 

'The other classes were the cities, the rural communes, and a general class. 
See below, p. 249. 

*For an interesting discussion of the subject, see Beard, The Economic Basis 
of Politics, pp. 46 ff. (New York, 192^^). 

117 



Functional 
represen- 
tation 
an old idea 



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;^ 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.^ 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.' 
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 crise de Vetai modeme, de Vorganisation du suffrage univer- 
sel (Paris, 1898). 

'Duguit, Traite de droit constitutionnel, pp. 506-512 (Paris, 2d ed., 1921); 
"La representation sjTidicale au Parlement," Revue politique et parlementaire, 
July, 1911. 

»Cole, Social Theory, Chapter VIII (New York, 1920). 



FUNCTIONAL REPRESENTATION 



119 



constituted upon any principle of functional representa- 
tion.^ 

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 specffication 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,^ 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 Commonuealtk 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 estabUshment of Com- 
mittees of Workers in all sizeable factories. See Temperley, Ed., A History of 
the Peace Conference of Paris, Vol. IL P- ^55 (Ixindon, 1920). 



Difficulties 
of working 
out a plan 



Origin of 
German 
Council 
system 



120 NEW CONSTITUTIONS OF EUROPE 



Councils 
"anchored" 
jn 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.^ 

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 emploj'ers 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 



lAs 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 all 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 Nnc 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. "^ 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.^ 

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 



iQuoted in Brunei, 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.^ It can be only briefly summarized here.^ 
The organization of the Factory Workers Councils, some- 
times referred to simply as Works Councils,' 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 employe 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- 



^DeuUche Nationalversammlung, 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. 

'The constitution uses Betriebsarbeiterrat: the law uses Betricbsrat, which is 
divided into an Arbeiterrai and an Angestelltenrat. 



Organiza- 
tion of 
Cotmcils 



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,^ 

In spite of this elaborate organization the powers of 
the Factory Workers Councils are almost wholly advisory.^ 
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; 



^Brunet, op. cit., pp. 250, 251. 

^he law assigns to them the following duties: 

"1. In establishments with economic (commercial or indiistrial) 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 fix, 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 oflBcials 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 Rerieu\ May, 1920, p. 178. 

The powers of the "Workers Council" and of the "Employ^ 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" {Arheits- 
gemeinschaften) composed of equal numbers of workers 
and employers.^ 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 



Councils 
not a 
substitute 
for trade- 
unions 



iBrunet, Of. cit., pp. 238-244. 



126 NEW CONSTITUTIONS OF EUROPE 

Simiiiarity ^f {\^q Factorj' 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.^ 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- 

operation 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 



1" 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 eflSciency. . . ." 



Control by 
trade- 



128 NE^Y 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 oflBce. 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.^ 



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 May, 1920, and the Provisional Economic 



1" Factory Inspectors' Reports on Operation of German Works Comicils," 
Monthly Labor Review, February, 1922, pp. 10-12. 



FUNCTIONAL REPRESENTATION 



129 



Council met for the first time on the thirtieth of June 
following.^ 

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: 



G8 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 diflSculty 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, 19'20, pp. 3S S. As finally enacted the law is best described 
by Brunei, op. cit., pp. !26o S. 



Apportion- 
ment of 
represen- 
tation 



Parity of 
employers 
and 
employees 



130 NEW CONSTITUTIONS OF EUROPE 



Representa- 
tives of 
general 
industry as 
illustration 



Functions 

of 

Provisional 

Economic 

Council 



the delegates, power was in many instances vested in 
Arbeitsgemeifischaften, 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 Workers 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.^ 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 

iThe Korrespondenzblatt des AUgemeinen Deutschen Gewerkschaftshundes 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 (Arbeitsaussckuss) 
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 conunittee, 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 IVIarch 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 AViesbaden agreement on 
reparations. This brief rexnew 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 



132 NEW CONSTITUTIONS OF ErROPE 



Little 

progress 

with 

District 

Economic 

Councils 



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 oivn accord ruled itself oiii.^'^ 
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. - 



^Korrcspondenzblatt des Allgemeinen Deutschen Gcwerkschajtshundes, Decem- 
ber 17, 1921. 

'In the Korres-pondenzhlatt des Allgemeinen Deidschen Geirerkschaflsbiindes 
of February 4, 1912, there is reprinted from Afa, the organ of the AUgemeine 
Freie Angestelltenhund, an article entitled: "What is becoming of the District 
Economic Councils?" The author, Herr Aufhiiuser, 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 Liittwitz. 
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 Ca,binet 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. "^ 



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 foUows: 

"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, he 
accorded a decisive voice in the formulation of economic and socio-pohtical 
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 
of agree- 
ment 



The recognition of such far-reaching claims was, of 
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 SjTidicate. 

"7. Effective control and, if necessary, seizure of available articles of food 
and the severest repression of extortionate charges and pro6teering 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 coimter-revolutionary troops that 
were unfaithful to the Constitution and the substitution for them of mihtary 
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 Seciu-ity Guards who remained loyal 
shall not be distiu-bed. 

"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, annoimces 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.^ 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.^ 
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.' 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."* 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."^ Thus in Europe is functional representation 
casting its portentous shadow before it. 

'Laws of February 26, 1920, and of October 1, 1920; StaatsgesetzhlaU, 1920, 
Nos. 100, 469. 

^Wahlordniing der Kammern fiir Arbeiter und Angestellte, Bundesgesetzblatt 
fur die Republik Osterreich, 1920, p. 27. 

^Art. 44. <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."^ 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,^ it is certain that statesmen had made commit- 
m^ents 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.^ 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 



iVol. II, p. 74 n. 

-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). 

^Lord Loreburn, How the War Came (London, 1920). 

13G 



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;^ 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.- Indeed, it may almost be said that origin of 
with regard to foreign policy our systems of government ^ ^^° ^°^ 
are primitive.^ 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- 
Ijeror 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 
Wilham 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. 

^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). 

'C. D. Burns, International Politics, p. 120 (London, 1920). For an elaborate 
discussion, see Barthelemy, Democratie et 'politique etrangere. Chapter I (Paris, 
1917). 



138 NEW CONSTITUTIONS OF EUROPE 



American 
practice 



Common 
Sense in 
Foreign 
Policy 



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.^ 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 1886, Sir Harry remarked, 
it "would have savored of indiscretion or impertinence." 



iThis 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 



l.'^9 



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.^ 



English 
practice 
in 1886 



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.^ 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."^ 

That theory prevailed on the continent mitil 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. 

^e Sir Edward Cook, Delane of The Times (London, 1916). 

m. G. Wells. The Outline of History, Vol. II, p. 216 (New York, 1920). 



Press 
influence 



Continental 
practice 



UO NEW CONSTITUTIONS OF EUROPE 

it was able to exert some influence; but the powers of the 
Emperor were great. ^ His corresjjondence with the Czar- 
and his annotations on the Kautsky documents are not 
mere illustrations of Hohenzollern idiosyncrasies; they are 
also significant in a constitutional sense.^ 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.^ 
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.^ 
Queen In England, as Sir Harry Johnston said, not until re- 

Victoria cently has Parliament asserted much control; but the 

m oreign 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 Toyal 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."® 

ID. P. Myers, in his Notes on the Control of Foreign Relations (Central Organiz- 
ation for a Durable Peace, 1917) magnifies this parliamentary control. 

=N. F. Grant (ed.), The Kaiser's Letters to the Tsar: The Willy-Nicky Corre- 
spondence (London, 1920). 

^"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 declenchee la guerre mondiale, pp. 53, 131 (Paris, 1921). 

^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. 1G5 ff. (New York, 1914). 

^ee Willoughby and Rogers, op. cit. pp. 375 ff. 

^Martin, Life of the Prince Consort, Vol. II, pp. 259, 2G0. "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."^ 

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."^ 
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."^ 

It matters not that the influence of the Cro'VMi was 
beneficial and in some cases imposed very wise restraints 
on ministerial action. From the standpoint of the con- 

Cro^vTi 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). 

ij. A. Farrar, The Monarchy in Politics, pp. 228-229 (New York, 1917). 

^Letters of Queen Victoria, Vol. Ill, p. 1G9; Farrar, op. cit., p. 194. 

^Letters of Queen Victoria, Vol. Ill, p. 435. 



Foreign 
policy 
determined 
by the 
Crown 



Illustrations 



142 NEW CONSTITUTIONS OF EUROPE 



Conflict 
of control 
between 
Crown and 
Parliament 



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 Ix)ndon of the Czar 
who was in England for the marriage of his daughter to 
the Duke of Edinburgh. \Mien 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.^ 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."^ 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.^ 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. 

'Monypenny and Buckle, The Life of Benjamin Disraeli, Vol. V, p. 415 (New 
York, 1920). 

'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. "^ 

In politics the play of chance has effects which are 
sometimes overlooked.^ 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.^ 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.^ 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. 

^See Monj-penny and Buckle, op. cit.. Vol. VI, p. 454; Morley, Life of Glad- 
stone, Book XII, Chapter 5. 

*Strachey, op. cit., p. 387. "What, indeed," ^^Tote 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 German5% the Presi- 
dent of the French Repubhc, and the Czar of Russia.^ 
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.- 
The facts concerning it did not come to light until re- 
cently;^ and the future historian wull have to determine 

'An experienced and well-informed observer WTote 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 
■^^Tote: 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 impopular it was making Eng- 
land on the Continent and everj'where, and how much we were becoming de- 
spised for our childish attempts at subduing this sturdy httle 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. 

^he practice was correctly stated by Mr. Todd in 1887: "At every interview 
between the sovereign and the minister of any foreign corn-t, 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 WTitten." 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 fimction was to 
criticize or approve it, and finally to support it with all his powers. . . . 
The Foreign pohcy of the Ministry of the day was in his eyes — as under a con- 
stitutional government 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 vrhole, 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 tl;eir 
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 unrevised 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.^ 

^J. G. Swift MacNeill, "Foreign Policy and Royal Influence," Fortniqhtly 
Review, December, 1921. Concerning the future, Mr. MacXeill says: "The 
Great War has made intelligent participation by the people in the foreign policy 
of the Government of this coimtry absolutely unavoidable. In every step of 
foreign poUcy they must be henceforth fully informed and consulted and obe\ed. 
Viscount Bryce \\Tote 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 fuU 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 impossibihty." 



Doubtful 
results of 
his policy 



Uncertainty 
of respon- 
sibility 



146 NEW CONSTITUTIONS OF EUROPE 



Variable- 
ness in the 
r61e of 
the Crown 



Bagehot's 
view 



It seems certain that, with respect to foreign poHcy, 
George V has had much less concern than his father,^ 
although there will probably be disclosures that the 
Cro^sTi 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." - 

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.^ 

1" 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 eHcited popular criticism." Lord Bryce, "The Life of 
Disraeh, V, VI," Avierican Historical Review, Vol. XXVI, p. 68i (July, 1921). 

^The Working Constitution of the United Kingdom, and Its Outgrowth,^. 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.^ 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.^ 

A parliamentary committee on foreign affairs has been 
proposed a number of times. ^ INIore 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.'* 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 

'Ponsonby, Democracy and Diplomacy, p. 50. 

^e Parliamentary Questions, March 24, 1913; June 11, 1914; and Lord Lore- 
burn, How the War Came, p. 102. 

'For references to the debates see Heat ley, Diplomacy and the Study of Inter- 
national Relations, p. 265; and Willoughby and Rogers, op. cit., p. 250. 

*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 



us NEW CONSTITUTIONS OF EUROPE 



Instance 
of the 
Mesopo- 
tamlan 
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. IMr. 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."^ With that state- 

^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 
Druramond, 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 la, 1921. 



DEMOCRATS AND DIPLOMATS 



149 



ment of existing constitutional practice Parliament was 
apparently content.^ 

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.^ 

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 

i"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 Affairs, 
January, 1921. 



Giolitti's 
proposal 
in Italy 



Norwegian 
practice 



150 NEW CONSTITUTIONS OF EUROPE 



Swedish 
practice 



French 
Commission 
on Foreign 
Affairs 



Conti-ol 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."^ 

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.^ 

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 in 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^ar and peace may be de- 
clared only by the legislature. In most of these constitu- 

'Oscar Pedersen, "Foreign Policy Control in Norway," Foreign Affairs, 
December, 1921. 

"Axel Brusewitz, "Parliamentary Control of Foreign Affairs in Sweden," 
Foreign Affairs, January, 1922. 

^See Barthelemv, Democrat et politique Sirangere, pp. 130 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^ 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.- 
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.^ In April, 1913, the proposal 



Legislative 
Committees 



Swiss 

referendum 
on treaties 



'See above, p. 34. 

'Brunei, The New German Constitution, p. 151. M. Brunei suggests thai 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 hke la\ys, and for laws this constitu- 
tion provided an optional referendum. Esmein, Elements du droit constitution- 
nel, pp. 356-699 (Paris, 1909, 5th ed.). 



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.^ 
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.^ 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.^ 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- 



iBrooks, "Swiss Treaty Initiative," American Political Science Review, August, 
1921. 

^Brooks, "Swiss Referendum on the League of Nations," American Political 
Science Review, August, 1920. 

'The problem is ably discussed by M. Edouard Georg, Le controle du pejiple 
sur la politique exterleure (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.^ 



iJohn Stuart iNIill, "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 parHamentary 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 peuple sur la politique 
exterieure. 



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.^ 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. 

1" 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 lois constitutionelles et des lois ordinaires, p. 3 (Bordeaux, 1903). But this 
injunction against transgression is moral not legal. 

154 



INDI\1DUALISAI 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.^ Some lacunoe are apparent and 
some obscurities will doubtless cause difiiculty, but the 
attempt has been made to meet all probable contingencies. 
Documentary constitutions were ine\atable. 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 
royahsts 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 dra^^Ti 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 wTitten constitution." 
C. H. Mcllwain, The High Court of Parliament and Its Supremacy, pp. 91-9^ 
(New Haven, 1910). 



Not 

adopted 
by the 
new states 



"Written 
constitu- 
tions were 
inevitable 



156 NEW CONSTITUTIONS OF EUROPE 



Advantage 
of written 
constitu- 
tions 



Conditions 
necessary 
for flexible 
constitu- 
tions 



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."^ 
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 acconi- 

^Bryce, "Flexible and Rigid Constitutions," Studies in History and Jvrispru- 
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 coiuse 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 \\ith the American, even 
though it may not be amended by the ordinary legislative processes, and legisla- 
tion (Uke 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.^ 

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.^ 
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 w^hich 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. Ill, p. 115 (January, 
1921). 



Not found 
in the 
new states 



Advantages 
of "cus- 
tomary" 
constitu- 
tions 



158 NEW CONSTITUTIONS OF EUROPE 

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, ^nd 
which, in some instances, ought to have been replaced by 
other institutions more suited to their altered environ- 
ment."^ 
Bills of All of the new constitutions have elaborate bills of 

rights 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- 
Lack of stitutional. The popular representative body is not over- 

judicial 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. 



supremacy 



INDIVIDUALISM AND SOCIALISINI 159 

Slovak^ and Austrian constitutions provide for any con- 
siderable measure of judicial review.^ 



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 riglits 
of minorities whether racial or religious." Hoetzl, The Constitution of the Czecho- 
slovak Republic, p. 15 (Prague, IQ'-ZO). 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 



Eflfects of 
the war, on 
nationaliza- 
tion 



160 NEW CONSTITUTIONS OF EUROPE 



Effect of 
the war 
on private 
property 



In England 



In the 

new states 



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 m 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."^ 

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,^ 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 



Futxire of 

private 

property 



Peace 

treaties 

encourage 

national 

control of 

industry 



'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 Review, April, 1920. 



162 NEW CONSTITUTIONS OF EUROPE 



111 Germany 



Mr. Wells 
on a new 
world 
system 



modify it. An alteration on grounds of convenience, how- 
ever, does not afiFect the essential fact that the principle 
of private property has received a terrific blow. 

The point for the moment is that the enforcement of this 
part of the Treaty, like other parts, will go to swell communistic 
tendencies. It will be the business of the German state to 
maintain the miners who are to deliver the coal under the 
Treaty, the workers in the shipyards who are to deliver the 
yearly toll of ships. The intricate and elaborate arrangements 
for "searching Germany's pockets" for the purpose of the in- 
demnity mean the very strictest Governmental control of pri- 
vate trade in Germany, in many spheres its virtual abolition. 
All must be done through the Government in order that the 
conditions of the Treaty may be fulfilled. Foreign trade will be 
no longer the individual enterprise of private citizens. It will, 
by the order of the Allies, be a rigidly controlled governmen- 
tal function. . . 

The more thoroughly we "make Germany pay," the more 
state controlled do we compel her (and only to a lesser extent 
ourselves) to become. We should probably regard a standard 
of life in Germany very definitely below that of the rest of West- 
ern Europe, as poetic justice. But it would inevitably set up 
forces, both psychological and economic, that make not only 
for state control — either state Socialism or state Capitalism — 
but for Communism.^ 

The imagination of Mr. Wells runs forward as well as 
back. He deals with primitive civilization, but he also 
prophesies the building of an enduring social and political 
edifice for suffering mankind. Such a task, he says, will 
require a Science of World Politics and a world-wide sys- 
tem of Education, but it will demand, in addition, "a 
Science of Property as a basis for freedom and social jus- 
tice, a Science of Currency to ensure and preserve an eflB- 
cient economic medium, a Science of Government and 
Collective Operations whereby in every community men 
may learn to pursue their common interests in harmony."^ 
These are the stones that all political philosophers are 
searching for. The need in the new states of Europe is 

'Norman Angell, op. cit., pp. 80-81. 
^The Outline oj History, Vol. II, p. 385. 



INDIVIDUALISM AND SOCIALISM 



163 



inestimably greater than elsewhere since their immediate 
task is to rebuild what the war destroyed. 

As respects progress in the science and art of free government, 
experience has established certain principles that were unknown 
to those who lived under despotisms, and has warned us of cer- 
tain dangers unforeseen by those who first set up free govern- 
ments; but when it comes to the application of these principles, 
and the means of escaping these dangers, the faults that belonged 
to human nature under previous forms of government have re- 
appeared. Some gains there have been, but they have lain 
more in the way of destroying what was evil than in the creating 
of what is good: and the belief that the larger the number of 
those who share in governing the more will there be of wisdom, 
of self-control, of a fraternal and peace-loving spirit has been 
rudely shattered. Yet the rule of the Many is safer than the 
rule of One — as Cavour said that however faulty a legislative 
chamber may be an ante-chamber is worse — and the rule of the 
multitude is gentler than the rule of a class. However grave 
the indictment that may be brought against democracy, its 
friends can answer, "What better alternative do you offer.''"' 

Lord Bryce, however, in his writings on government, 
never paid sufficient attention to the fact that economic 
inequality is the most difficult problem and the most for- 
midable danger that has to be faced by political equalitar- 
ianism. The problems in the new states of Europe all fuse 
into this one. The state, Aristotle said long ago, was 
formed to make life possible, and it exists to make life 
good. Can the new democracies insure their citizens a 
good life.^ Their written instruments of government 
are merely a first step, for, as Burke pointed out, constitu- 
tions "must be defended by the wisdom and fortitude of 
men. These are what no constitution can give. They 
are the gifts of God ; and He alone knows whether we shall 
possess such gifts at the time we stand in need of them."^ 

^Bryce, Modern Democracies, Vol. II, pp. 607-608. 

^Letters on a Regicide Peace, IV. In a different style >vrote Carlyle: " Constitu- 
tions for the Colonies are now on the anvil; the discontented Colonies are all to 
be cured of their miseries by Constitutions. Whether that will cure their mis- 
eries, or only operate as a Godfrey's Cordial to stop their whimpering, and in 
the end worsen all their miseries, may be a sad doubt to us." "The New Down- 
ing Street," Latter-Day Pamphlets, No. IV. 



Lord Bryce 
on democ- 
racy 



Limitations 
on what 
constitu- 
tions can 
accomplish 



164 NEW CONSTITUTIONS OF EUROPE 

The new states of Europe are putting their trust in 
parhamentary government, geographical representation, 
and decision by majorities. One may wonder how nearly 
Gladstone was right when, with fine disregard of the 
examples of his own political career and the tenets of his 
philosophy, he said: "It is not by the state that man can 
be regenerated and the terrible woes of this darkened 
world effectually dealt with." 



PART II 
THE NEW CONSTITUTIONS OF EUROPE 



CHAPTER IX 
GERMANY 

1. HISTORICAL NOTE 

From 1815 to 1866 the numerous German states, in- 
cluding Austria, were held together in an extremely loose 
confederation — a creation of the Congress of Vienna. In 
the latter year an open rupture between Prussia and 
Austria, the two leading states of the Union, led to a dis- 
solution of the confederation. Civil war eventuated in 
a quick victory for the Prussian arms. The so-called 
August Treaty that followed bound Prussia and the 
North German States in an offensive and defensive alliance 
and provided for the establishment within one year of 
a federal union along lines proposed by Bismarck. By 
October, 1866, twenty-two states had signed this treaty, 
including a few small states that had fought on the side 
of Austria. 

In December, 1866, diplomatic representatives appointed 
by the kings and princes of the several states met in Ber- 
lin; and early in February, 1867, this assembly agreed 
upon a proposed constitution for the Union. Later in the 
same month an assembly of delegates, elected by manhood 
suffrage and secret ballot, ratified, after making some 
amendments, the constitution thus prepared for their 
consideration.^ Thereafter the constitution was sub- 



^Concerning the principle of manhood suffrage by which delegates to this 
ratifying convention were elected, Bismarck, the originator of the scheme, had 
this to say in later years: 

"Looking to the necessity, in a fight against an overwhelming foreign power, 
of being able, in extreme need, to use even revolutionary means, I had had no 
hesitation whatever in throwing into the frying pan, by means of the circular 
dispatch of June 10, 1866 [which dispatch contained the first draft of the pro- 
posed constitution], the most powerful ingredient known at that time to liberty- 

167 



Formation 
of the 
North 
German 
Confedera- 
tion 



Its con- 
stitution 
of 1867 



108 NEW CONSTITUTIONS OF EUROPE 

mitted to the governments of the several states and rati- 
fied by them in accordance with the procedure required 
for amending the constitutions of their respective states. 
Concerning the role that was actually performed b^^ this 
"democratic" convention the most distinguished commen- 
tator on the constitutional law of Germany has said : 

Role of the The Parliament (or popular convention) was not one of the 

"popular" "parties" to the constitution, but only a means of coming to 

convention some sort of agreement over the constitution. It had no legal 
powers, but simply a political duty. It was meant to balance 
the divergent views and particularistic tendencies of the several 
Governments, and its consent should serve as a guarantee that 
the constitution, as agreed upon, should correspond to the 
political views and desires of the people, to public opinion. 
The "agreement" between the Governments and the Parlia- 
ment was a harmonizing of the views as to what sort of a con- 
stitution should be given to the Bund, and the result of that 
"agreement" was not to impart validity to a constitution, but 
to produce the draft of a constitution."^ 

There was, indeed, never the slightest pretense in Ger- 
man political philosophy that the North German constitu- 
tion of 1867, which to all intents and purposes became 
the constitution of the Empire, actually emanated from 
the people who were to be governed under it. Despite the 
fact that in turbulent times it was given intermediary 
ratification by a "popular" assembly, it was drafted by 
the autocracy of Prussia and was given its ultimate sanc- 
tion by the autocracies of the several uniting states. In 
the history of American institutions no assemblage stands 
out so conspicuously as the convention that drafted the 
American constitution of 1787; in the history of German 
institutions no assembly has been given slighter considera- 

mongers, namelj' universal suffrage, so as to frighten off foreign monarchies from 
trying to stick a finger in our national omelette. I never doubted that the 
German people would be strong and clever enough to free themselves from the 
existing suffrage as soon as they realized that it was a harmful institution. If 
it cannot, then my saying that Germany can ride when once it has got into the 
saddle was erroneous." Bismarck, The Man and Statesman [Autobiography] 
Vol. II, p. 65 (New York, 1899). 

iLaband, Das Siaatsrecht des Deutschen Reiches, Vol. I, p. 23 (Hamburg, 1883). 



GERMANY 



169 



tion than that which in March-April, 1867, interposed for 
a brief moment between the autocracy that drafted and the 
autocracies that gave vahdity to the fundamental law of 
the inchoate Empire. 

The constitution of the North German Confederation 
became effective on July 1, 1867. It made prophetic 
provision for the ultimate inclusion of the South German 
States in the Union. The swollen prestige of Prussia in 
consequence of her victory over France in 1870 brought 
these states to terms. In November of that year Bavaria, 
Wiirttemberg, Baden, and Hesse entered into treaties with 
the Confederation which resulted in their incorporation 
into the Union and in the substitution of Empire for Con- 
federation (Bund). Strictly speaking, the German Em- 
pire came into being on January 1, 1871; but the constitu- 
tion of the Empire was a codification of the constitution 
of the North German Confederation of 1867 and of the 
treaties of November, 1870, between the Confederation 
and the several South German States. On April 16, 1871, 
this codified constitution was published as an "imperial 
law." Under this instrument, amended from time to 
time in certain unimportant respects, Germany was gov- 
erned until the end of the World War in 1918. 

In 1914 it was "military, not political, opinion in Ger- 
many" which "decided that war was, if not desirable, at 
least inevitable."^ It was the military strategist who 
usurped the function of the diplomatist-politician. And 
during the course of the war nothing was more evident in 
Germany than the steadily increasing ascendancy of the 
military authorities over the political in every field of 
governmental activity. Quite apart, therefore, from the 
pressure of external propaganda against the autocratic 
form of the imperial government, the military collapse of 
Germany was in a very real sense also a political and in- 
stitutional collapse. 

^Munroe Smith, Militarism and Statecraft, p. 115 (New York, 1918). 



Inclusion 
of South 
German 
States, 
1870 



Constitution 
of 1871 



Military 

defeat 

meant 

political 

collapse 

in 1918 



170 NEW CONSTITUTIONS OF EUROPE 



Revolution 
of 

November, 
1918 



Workers 
and 

Soldiers 
Councils 



The Empire came to an end with a bloodless revolution.^ 
The body politic appeared to be more stunned than torn. 
On November 9, 1918, the Kaiser's abdication was an- 
nounced; and Scheidemann, acting for the Social Demo- 
cratic party, proclaimed Germany a Republic. Prince 
Max von Baden resigned as Chancellor and himself named 
the Social Democrat, Friedrich Ebert, to succeed him. 
The Social Democrats and the Independent Socialists (the 
latter a radical offshoot of the Social Democrats, dating 
from 1916) agreed through their leaders to appoint a pro- 
visional "Cabinet" composed of three members of each 
party .^ It was this government, wholly irregular in origin, 
that signed the Armistice on November 11, 1918. The 
monarchists were as quiescent as were the proletarians. 
Even with a huge army returning home under shattered 
discipline there was practically no violence. Nor was 
there any break in public services; the vast army of civil 
servants continued to function at the orders of the new 
government. 

But in spite of the comparative "regularity" of this 
irregular provisional government, potential political power 
in Germany had none the less passed into other hands. 
Almost over night Workers and Soldiers Councils had 
sprung into being all over the country.^ The coalition 
Socialist Government had been formed only with the con- 
sent of the "Executive Council" of the Berlin District. 
Moreover, the Independent Socialists had entered into 
this coalition upon the express condition that the Govern- 
ment would recognize the authority of the Workers and 



^For a more detailed account of the events of the revolution, see Temperley, 
Ed., A History of the Peace Conference of Paris, Vol. I, Ch. II; Vol. II, Ch. VII 
(London, 1920). 

'Ebert, Scheidemann, and Lansberg were the Social Democrats and Haase, 
Dittman, and Barth were the Independent Sociahsts. 

^The way had been prepared by the National Patriotic Service Law, intro- 
duced in December, 1916, which as a concession to labor provided for the estab- 
lishment of Committees of Workers in all sizeable factories. See Temperley, 
Ed., op. cit.. Vol. II, p. 455. 



GERMANY 



171 



Soldiers Councils. Representatives of these Councils 
supervised all departmental activities of the Government 
and countersigned official documents. 

Faithful to the Erfurt Programme of 1892, the Social 
Democrats declared themselves in favor of summoning a 
constituent assembly vested with constitution-making 
power. The Independents were for a time hesitant about 
this proposal. They appeared to be in favor of a soviet 
system; but at the same time they appeared to be not 
wholly opposed to a parliamentary system. The Com- 
munists, led by Karl Liebknecht and Rosa Luxemburg, 
were in unqualified opposition. Strangely enough, more- 
over, they found in this opposition a measure of support 
from the extreme Monarchists. Many of these appeared 
to reject the prospect of a parliamentary democracy that 
would sign a treaty imposed by the victors, and to wel- 
come, as more promising, a Bolshevistic regime, with its 
probably infectious consequences in the countries of the 
Allies and its incapacity to comply with many probable 
terms of the treaty. 

On November 19 the Executive Committee of the 
Workers and Soldiers Councils, unable to agree on the 
question of a constituent assembly, issued a call for a 
Congress of all such councils in Germany. In the month 
that followed there was feverish political agitation. On 
this question of a constituent assembly hung the issue of 
soviet or parliamentary government. The Congress as- 
sembled on December 16 and two days later voted over- 
whelmingly in favor of calling a constituent assembly. 
The Independent Socialists withdrew in protest; and 
shortly thereafter the three Independents resigned from 
the "Cabinet." They were replaced by three Social 
Democrats. 

The Congress of Councils also elected a Central Council 
and vested it with power to ratify appointments to Ger- 
man and Prussian Cabinet posts, as well as with power to 



Opposition 
to a 

constituent 
assembly 



Congress of 

Workers 

Coiincils 



The 

Central 

Coxincil 



172 NEAV CONSTITUTIONS OF EUROPE 



Failure of 
Spartacists 



The 

constituent 
assembly 
of 1919 



veto provisional laws. In a sense it may be said that the 
Congress of the Councils was the potential legislature and 
the Central Council was the potential executive of the 
revolution. But political action was in form taken by 
the "Cabinet" or so-called "People's Commissioners." 

In December, 1918, and January, 1919, the revolution 
burst into violence. The Communists or Spartacists, 
considerably augmented by Independent Socialists, sought 
by force to capture the Government and to prevent the 
election of a constituent assembly. The Cabinet, duly 
authorized by the Central Council, interposed armed re- 
sistance, not only in Berlin, but also in other cities where 
the conditions of the capital were being reproduced. 
With the assassination of Liebknecht and Rosa Luxem- 
burg on January 15 the proletarian effort collapsed in 
debacle. It was a curious though not inexplicable aspect 
of the German revolution that such violence as it pro- 
duced was not directed against the late rulers — the aristo- 
crats, monarchists, militarists, and junkers. These were 
bystanders, mere onlookers, at the short-lived drama of 
armed conflict between the extreme radicals and the long 
contemned bourgeoisie, who now for the first time held 
the reins of power in trembling and untried hands. 

The date of the election of the constituent assembly 
was January 19, 1919. The conditions of election were 
fixed by a "Cabinet" decree of November 30, 1918. The 
suffrage was made "universal, equal, direct, and secret." 
It was extended to women as well as to men, and twenty 
years was fixed as the age requirement. Provision was 
made for a registration of voters; and a system of propor- 
tional representation was established under which from 
six to sixteen delegates were to be elected in each of thirty- 
eight districts.^ Originally the decree called for four hun- 
dred and thirty-three delegates, but subsequent events 
reduced the number to four hundred and twenty-one. In 

'See above, pp. 97 ff. 



GERMANY 



173 



the campaign most of the old political parties were re- 
christened with names appropriate to the changed order. 
The voters went to the polls in enormous numbers; more 
than thirty million votes were cast. The results of the 
election showed clearly that the advocates of parliamen- 
tary government had completely triumphed over the ex- 
tremists of the Left.^ The assembly could not boast a 
large leaven of political experience; for of the delegates 
elected only forty -five had served in the dissolved Reichs- 
tag. Thirty-six of the delegates were women. 

"By this election," writes a German commentator, 
"the German people seized the sovereignty that had hith- 
erto been recognized as belonging to those who possessed 
political power, and for the first time actually exercised 
the power of the state. All the declarations of the former 
dictatorial masters to the effect that the new Germany 
should be erected upon a democratic foundation and that 
the political power of the Empire should also rest with the 
German people, were meaningless so long as the people 
did not by their own action make use of their right. The 
actual management of the organs of state is what primar- 
ily proves that the people have the will to exercise the 
power that is proposed to be vested in them and demon- 
strates the existence of an established form of state. "^ 

The assembly came together on February 6, 1919. 
"Professedly to steep it in the sedative atmosphere of the 
old pre-Prussian 'kultur' of the philosophers and poets 
and practically to withdraw it from the too-stimulating 
atmosphere of Berlin,"^ Weimar was chosen as the place 

'The election results were as follows: Social Democrats, 163; Christian Peoples 
party (old Center or Catholic Federal), 92; German Democratic party (old 
Progressives and Radical Liberals), 75; German National Peoples party 
(old Conservatives), 42; Independent Socialists, 22; German Peoples party (old 
National Liberals), 21; small peasant parties, 6. Total, 421. There are some 
slight variations in these figures in different reports of the election. 

T. Giese, Die Verfassung dcs Deutschen Reiches, vom 11. August lOlD, 3d. ed. 
pp. 19. 20 (Berlin, 1921). 

^Young, The New Germany, pp. 323-34 (New York, ir.20). 



Significance 
of election 
of assembly 



A "consti- 
tutional" 
provisional 
government 



174 NEW CONSTITUTIONS OF EUROPE 



Action of 
Workers 
Councils 



of meeting. Four days after the opening of the assembly 
an act was passed which estabhshed a provisional form of 
government. In many respects this act foreshadowed the 
provisions of the permanent constitution. Its details 
need not be elaborated. Suffice it to say that the assembly 
itself was to exercise provisional legislative power. Pro- 
vision was made for a President and for a Chancellor at the 
head of a Ministry responsible to the assembly. But the 
power of the Ministry to initiate legislative proposals 
was made subject to the advice of a Committee of the 
States. On February 12 a coalition was affected in the 
assembly between the Social Democrats, the Christian 
Peoples party (the Catholic Center), and the Democratic 
party (the Progressives and Left Wing Liberals). Ebert 
was elected provisional President and Scheidemann became 
Chancellor. Under this system a legislative program 
of considerable importance was put through while the 
permanent constitution was in process of being completed. 

This "constitutional" provisional government came 
into existence almost immediately after the assembly met; 
but the organization of Workers Councils did not in conse- 
quence cease to exist. In this situation, therefore, there 
was large opportunity for embarrassment and friction. 
There was indeed the possibility that the Councils might 
yet assert a claim of superiority over the assembly. ' On 
February 11 the Central Council, which had been set up 
in December, formally turned over to the assembly the 
powers which it had received from the Congress of Workers 
Councils. But insistent pressure by the Independents, 
and especially by the Berlin Executive Council, led to the 
call of a second general Congress. On April 5 this Con- 
gress passed a "self-denying" resolution by which the way 
was cleared for the work of the assembly and the establish- 
ment of parliamentary government under a permanent 
constitution. 

Dr. Hugo Preuss, Minister of the Interior in the 



GERMANY 175 

Scheidemann Cabinet, was chiefly responsible for the con- Hugo 
stitution. His draft of the provisional constitution, which Preuss 
had received the approval of a conference of state rep- 
resentatives prior to the meeting of the assembly, was 
the basic proposal out of which the constitution was 
evolved. 

Convoked for the primary purpose of making a consti- The con- 
tution, the assembly was nevertheless compelled to" give stitution 
attention to many other important matters. Critical 
services of the government had to be carried on. Pressing 
laws had to be enacted. Recrudescent uprisings of Com- 
munists and Spartacists had to be suppeessed. And above 
all, peace had to be made. It was in such distracting cir- 
cumstances that the German constitution of 1919 was 
patterned and moulded. On July 31, it was finally adopted 
by a vote of two hundred and sixty-two to seventy- 
five, the opposition coming from the extreme Right and 
the extreme Left. On August 11, it was promulgated and 
published. It went into effect immediately; for by its 
own terms the constituent assembly was to operate tem- 
porarily^ in place of the Reichstag, and the provisional 
President in place of a President elected by popular vote.^ 
The first Reichstag was elected on June 6, 1920; but 



'The translation which follows was made especially for this volume. Other 
English versions are to be found in Young, The New Germany, Appendix; The 
International Reriew, November and December, 1919: and Temperley, Ed., A 
History of the Peace Conference of Paris, Vol. Ill, p. 347 (London, 1920). There 
is also a translation by Professors William Bennett Munro and Arthiu- Norman 
Holcombe which appeared in League of Nations, Vol. IT, No. 6 (World Peace 
Foundation, December, 1919). This translation is used in the English version 
of Brimet, La constitution allemande du 11 Aout, 1919, with the result that 
there is some confusion of terms between the constitution and the text. The 
French translation of the constitution, by M. Brunet, is an excellent piece of 
work. 

M. Brunet's book, translated by Joseph Gollomb imder the title The New 
Gt-rman Constitution (New York, 1922) is to date the most valuable work dealing 
with the constitution. An interesting summary is J. W. Gordon, "The New 
German Constitution," Quarterly Review, January, 1921. See also the refer- 
ences in Willoughby and Rogers, An Introduction to the Problem of Government, 
p. 37.5. 

A great many volumes dealing with the constitution have appeared in Ger- 
many. Two of these are now in their third editions and have elaborate biblio- 
graphical notes: Giese, Die Verfassung des Deutschen Reiches vom 11. August 



176 NEW CONSTITUTIONS OF EUROPE 

three years after the promulgation of the constitution no 
date had been set for the election of a President by the 
people. 

2. CONSTITUTION OF THE GER]VL\N REICH^ OF 
AUGUST 11, 1919 

The German people united in every respect and inspired by 
tlie determination to restore and confirm the Reich in liberty 
and justice, to serve peace at home and peace abroad, and to 
further social progress, has given itself this constitution. 

CHAPTER I 
THE REICH: ITS ORGANIZATION AND FUNCTIONS 

section i 
The Reich and the States^ 

Article 1. The German Reich is a Republic. 

The political power emanates from tLe people. 

Art. 2. The territory of the Reich consists of the territories 
of the German states. Other territories may be incorporated 
in the Reich by a national law, if their populations so desire by 
virtue of the right of self-determination. 

Art. 3. The national colors are black-red-gold. The com- 
mercial flag is black-white-red with the national colors in the 
upper inside corner. 



1919 (Berlin, 1920) and Poetzsch, Handausgabe der Reichsverfassnng vom 11. 
August 1919 (Berlin, 19'-21). The last named volume contains a summary of 
recent legislation which will not be without influence on parliamentary practice. 
A volume contrasting the new constitution with the old is Navaisky, Die Grund- 
danlcen der Reicksverfassung (Munich, 1920). 

'We do not translate "Reich." The most literal English equivalent is "Em- 
pire" which has a connotation that the framers of the constitution have sought 
to avoid. In other English versions "Reich" has been translated "Realm" and 
" Commonwealth." Obviously neither of these terms is wholly satisfactory. 

-The German word is "Lander," literally countries, regions, or territories. It 
has been used deliberately instead of "Staaten", apparently to signify the 
changed status of the separate units under the new constitution. (See above, 
pp. 62 ff.) Tlie word "states" for the members of the Reich is therefore slightly 
misleading; but it has been used because any literal translation has too vague a 
connotation, and because no other term seemed more appropriate. It is of some 
significance, moreover, that the constitutions of Prussia and the other units use 
the word " Staat " — for example, Verfassung des Friestaats Preussen. Through- 
out the German constitution "Staat" is occasionally used in a generic sense 



GERMANY 177 

Art. 4. The universally recognized rules of international law 
are accepted as integral and obligatory parts of the law of the 
German Reich. 

Art 5. Political power shall be exercised, in matters pertain- 
ing to the Reich, through the organs of the Reich on the basis 
of the national constitution, and, in matters pertaining to tl;e 
states, through the organs of the states on the basis of the con- 
stitutions of the states. 

Art. 6. The Reich shall have the exclusive power of legisla- 
tion in respect to: 

(1) Foreign relations. 

(2) Colonies. 

(3) Citizenship, freedom of movement, immigration and 
emigration, extradition. 

(4) National defence. 

(5) Currency. 

(6) Customs, including uniformity in customs and commer- 
cial districts and the free transit of goods. 

(7) Posts and telegraphs, including telephones. 

Art. 7. The Reich shall have power of legislation in re- 
spect to: 

(1) Civil law. 

(2) Criminal law. 

(3) Judicial procedure, including the execution of justice; 
as well as official assistance by one public authority to another. 

(4) Passports and police supervision of aliens. 

(5) Poor relief and vagrancy. 

(6) The press, the right of association, the right of assembly. 

(7) Problems of population, and protection of maternity, 
infancy, childhood, and adolescence. 

(8) Public health, veterinary regulations, and protection of 
plants against disease or injury. 

(9) The right to work, insurance and protection of workers 
and other employees, and employment exchanges. 

(10) The organization of professional associations extending 
over the Reich. 

(11) The care of discharged soldiers and their dependents. 

(12) The law of expropriation. 

(13) Socialization of natural resources and of economic un- 
dertakings, as well as the manufacture, production, distribu- 
tion, and price-fixing of economic goods destined for public 
use. 



178 NEW CONSTITUTIONS OF EUROPE 

(14) Commerce, weights and measures, the issue of paper 
money, banking, and stock and produce exchanges. 

(15) Commerce in foodstuffs and food luxuries, as well as 
in commodities of daily use. 

(16) Industry and mining. 

(17) Insurance. 

(18) Maritime commerce, deep sea and coast fisheries. 

(19) Railways, internal navigation, motor traffic by land, 
sea, and air, and the construction of roads for general traffic 
and national defense. 

(20) Theaters and cinematographs. 

Art. 8. The Reich shall have in addition the power of leg- 
islation as to taxation and other revenues in so far as they are 
claimed in whole or in part for its purposes. If the Reich lays 
claim to taxes or other revenues which formerly belonged to the 
states, due consideration must be given to the protection of the 
financial needs of the states. 

Art. 9. In so far as it is necessary to issue uniform regula- 
tions, the Reich shall have the power of legislation in respect to : 

(1) Social welfare. 

(2) Protection of public order and safety. 

Art. 10. The Reich may by law prescribe fundamental 
principles with respect to: 

(1) Rights and duties of religious associations. 

(2) Education, including higher education and scientific 
libraries. 

(3) Rights of officials of all public bodies. 

(4) Land titles, land distribution, land colonization and 
homesteads, entail, housing, and distribution of the population. 

(5) Disposition of the dead. 

Art. 11. In so far as is necessary the Reich may by law 
prescribe fundamental principles with respect to the imposition 
and collection of state taxes in order to safeguard important 
commercial interests, or in order to prevent: 

(1) Prejudice to the national revenues or the conmiercial 
relations of the Reich. 

(2) Double taxation. 

(3) Levies on public communications or institutions which 
are excessive or which interfere with communication. 

(4) Discriminatory taxes upon imported goods as against 
domestic products in interstate or local commerce. 

(5) Export premiums. 



GERMANY 179 

Art. 12. As long as, and in so far as, the Reich does not 
make use of its powers of legislation, the states shall retain the 
power of legislation. This does not apply to the power of legis- 
lation which belongs exclusively to the Reich. 

The National Ministry shall have the right to veto laws of 
the states which relate to matters covered by Article 7, sub- 
section 13, in so far as the welfare of the people of the Reich 
is thereby affected. 

Art. 13. National laws are superior to the laws of the states. 

Should any doubt or difference of opinion arise as to whether 
a state regulation is compatible with a law of the Reich, the 
competent national or state authority may request a decision 
from a superior judicial court of the Reich in accordance with 
the more specific requirements of a national law. 

Art. 14. National laws shall be executed by the authorities 
of the states in so far as the national laws do not otherwise 
provide. 

Art. 15. The National Ministry shall have the right to 
supervise those matters in respect to which it has the power of 
legislation. 

In so far as national laws are to be executed by the authorities 
of the states the National Ministry may lay down general di- 
rections. The National Ministry shall have power to send 
commissioners to the Central authorities of the states, and with 
their concurrence to subordinate authorities, in order to super- 
vise the execution of the national laws. 

It is the duty of the state ministries to remedy, on the request 
of the National Ministry, deficiencies which may have appeared 
in the course of the execution of national laws. In case of dis- 
pute, both the National Ministry and the state ministries may 
request a decision from the Supreme Judicial Court {Staatfi- 
gerichtshof), provided another court is not prescribed by national 
law. 

Art. 16. Officials charged with the direct administration of 
national affairs in any state shall, as a rule, be citizens of that 
state. Officials, employees, and workers of the national admin- 
istration shall, at their request, be employed within their home 
districts, in so far as this is possible, and in so far as may be 
consistent with the requirements of the service and of their 
training. 

Art. 17. Every state must have a republican constitution 
(freistaatliche Verfassung). The representative body must be 



180 NEW CONSTITUTIONS OF EUROPE 

elected by universal, equal, direct, and secret suffrage of all 
German citizens of either sex, according to the principles of pro- 
portional representation. The state ministry must have the 
confidence of the representative body. 

The principles applicable to elections to the representative 
body shall apply also to elections to municipal bodies. Never- 
theless, by a state law the right of suffrage may be made to de- 
pend upon residence within the municipality for a period not 
exceeding one year. 

Art. 18.^ The division of the Reich into states shall serve the 
highest economic and cultural progress of the people, with due 
regard to the wishes of the population affected. The alteratioA 
of state boundaries and the creation of states within the Reich 
shall take place by virtue of national law modifying the con- 
stitution. 

Where the states directly affected consent, an ordinary na- 
tional law shall suffice. 

An ordinary national law shall also suffice where one of the 
states affected does not consent, but where the alteration of a 
boundary or the creation of a new state is demanded by the 
wishes of the population and an overwhelming national interest 
requires it. 

The wishes of the population shall be ascertained by a referen- 
dum. The National Ministry shall order such a referendum 
to take place upon demand of one-third of the residents of the 
territory to be separated who are qualified to vote for members 
of the Reichstag. 

Three-fifths of the votes recorded, and at least a majority of 
the total number of electors, are necessary to effect any altera- 
tion of boundaries or the creation of a new state. Even for the 
separation of only a part of a Prussian governmental district 
or of a corresponding administrative district in any other state, 
the wishes of the population of the whole district affected must 
be ascertained. If there is no geographical connection between 
the portion to be separated and the whole district, a special 
national law may declare that the wishes of the population of 
the part to be separated shall be suflBcient. 

Wlien the wishes of the population have been ascertained, the 
National Ministry shall submit an appropriate law to the 
Reichstag for its acceptance. 

If a dispute arises on the occasion of a union or a separation 

iSee below. Art. 167. 



GERjVIANY 181 

of territory in respect to property rights, it shall be decided by 
the Supreme Judicial Court of the Reich at the request of either 
party. 

Art. 19. If constitutional controversies arise within a state, 
for the decision of which there is no competent court, or should 
controversies of a public nature arise between different states 
or between the Reich and a single state, the Supreme Judicial 
Court of the German Reich shall decide the controversy on the 
appeal of either of the contesting parties, if no other court of 
the Reich is competent. The President of the Reich shall exe- 
cute the decision of the Supreme Judicial Court. 

section ii 
The Reichstag 

Art. 20. The Reichstag shall be composed of the representa- 
tives of the German people. 

Art. 21. The deputies shall be representatives of the entire 
people. They are subject only to their conscience and are not 
bound by instructions. 

Art. 22. The deputies shall be elected by the universal, 
equal, direct and secret suffrage of all men and women over 
twenty years of age, according to the principles of proportional 
representation. Election day must be a Sunday or a public 
holiday. Detailed regulations shall be proscribed by a national 
electoral law. 

Art. 23. The Reichstag shall be elected for a four-year term. 
A new election shall take place no later than sixty days after the 
expiration of its term. 

The Reichstag shall assemble for its first meeting no later than 
the thirtieth day after election. 

Art. 24, The Reichstag shall assemble on the first Wednes- 
day, of November in every year at the seat of the National 
Ministry. The President of the Reichstag must call it together 
at an earlier date if the President of the Reich or at least one- 
third of the deputies of the Reichstag demand it. 

The Reichstag shall determine the date of the close of its 
session and the date of its re-assembly. 

Art. 25. The President of the Reich may dissolve the Reichs- 
tag, but only once for the same cause. 

A new election must be held no later than the sixtieth day 
after the dissolution. 



/ 



*;.% 



182 NEW CONSTITUTIONS OF EUROPE 

Art. 26. The Reichstag shall choose its own President, its 
Vice-Presidents, and its Secretaries. It shall determine its own 
rules of procedure. 

Art. 27. Between two sessions or between legislative terms 
the President and Vice-Presidents of the last session shall carry 
on its business. 

Art. 28. The President shall exercise powers of discipline 
and police within the Reichstag building. The administration 
of the building is under his control; he has control over the in- 
come and, expenditures for the building within the limits laid 
down by the national budget, and he represents the Reich in all 
legal business and legal actions involved in his administration 
of the building. 

Art, 29. The sittings of the Reichstag shall be public. On 
the demand of fifty deputies the public may be excluded by a 
two-thirds majority vote. 

Art. 30. True and accurate reports of the proceedings at the 
public sittings of the Reichstag, or of a Landtag, or of their 
committees are privileged matters. 

Art. 31. A tribunal to examine election returns shall be in- 
stituted by the Reichstag. It shall also decide whether a deputy 
has lost his seat. 

The tribunal to examine election returns shall be composed of 
members of the Reichstag elected by the Reichstag for the legis- 
lative term, and, in addition, of members of the Supreme Admin- 
istrative Court (Reichsverwaltungsgericht) whom the President 
of the Reich shall appoint on nomination of the presidency of 
that Court. 

The tribunal to examine election returns shall pronounce 
judgment on the basis of public and oral sittings by a quorum 
of three members of the Reichstag and two judicial members. 

Proceedings apart from the sittings of the tribunal to examine 
election returns shall be conducted by a commissioner of the 
Reich appointed by the President of the Reich. In other re- 
spects, procedure shall be regulated by the tribunal to examine 
election returns. 

Art. 32. A resolution of the Reichstag requires a simple 
majority of the votes cast, except as the constitution requires 
another majority. The rules of procedure of the Reichstag may 
permit exceptions in the case of elections held by it. 

The quorum shall be determined by the rules of procedure. 

Art. 33. The Reichstag and the committees of the Reichstag 



GERMANY 183 

may demand the presence of the Chancellor and of every min- 
ister. 

The Chancellor, the ministers, and their deputies shall have 
access to the sittings of the Reichstag and of its committees. 
The states shall be privileged to send authorized agents to these 
sittings who shall submit the views of their ministries upon 
matters under discussion. On demand, the representatives of 
the state governments must be heard during the deliberations; 
and the representatives of the National Ministry must also be 
heard regardless of the order of the day. 

They shall be subject to the rulings of the presiding oflScer. 

Art. 34. The Reichstag shall have the right to, and upon the 
proposal of one-fifth of its members must, set up committees of 
investigation. These committees shall in public sitting inquire 
into such evidence as they or the petitioners consider necessary. 
The public may be excluded from sittings of a committee of in- 
vestigation by a two-thirds majority vote. The rules of proce- 
dure shall regulate the business of the committee and determine 
the number of its members. 

The courts and administrative authorities are required to sub- 
mit evidence requested by these committees; upon their demand 
the records of the authorities shall be laid before them. 

The provisions of the criminal code shall apply, as far as may 
be, to the inquiries of committees and of the authorities assisting 
them; nevertheless, the secrecy of the postal, telegraph, and tele- 
phone services shall remain unaffected. 

Art. 35. The Reichstag shall appoint a standing committee 
on foreign affairs which may act between sessions of the Reichs- 
tag and after the end of the legislative term, or between the dis- 
solution of the Reichstag and the convening of a new Reichstag. 
The sittings of this committee shall not be public, unless the 
committee itself decides by a two-thirds majority vote to admit 
the public. 

The Reichstag shall further appoint a standing committee 
for the protection of the rights of the representative body over 
against the National Ministry, for the period between sessions 
and after the end of a legislative term. 

These committees shall have the powers of committees of 
investigation. 

Art. 36. No member of the Reichstag or of a Landtag may 
at any time be subjected to judicial or administrative prosecu- 
tion, or otherwise held responsible outside the sittings, by 



184 NEW CONSTITUTIONS OF EUROPE 

reason of his vote or by reason of any utterances made in his 
official capacity. 

Art. 37. No member of the Reichstag or of a Landtag may, 
without the consent of the house of which he is a member, be 
subjected to investigation or arrest during the session for a 
penal offense unless he is apprehended in the commission of the 
act, or at latest in the course of the following day. 

Consent is similarly required for every other restriction of 
personal liberty which obstructs a deputy in the exercise of his 
office. 

Every criminal proceeding against a member of the Reichstag 
or of a Landtag and every arrest or other restriction on his per- 
sonal liberty shall, on demand of the house to which the deputy 
belongs, be deferred for the duration of the session. 

Art. 38. The members of the Reichstag and of the Landtags 
have the right to refuse to give evidence as to persons who have 
made communications to them in their capacity as deputies, and 
to whom they have given information in the exercise of their 
office, as well as in respect to the facts themselves. With regard 
also to the seizure of documents their position is identical with 
that of persons who have the legal right to refuse to give evi- 
dence. 

A search or seizure may not take place within the rooms of the 
Reichstag or of a Landtag except with the consent of its President. 

Art. 39. Public officials or members of the military forces 
shall not require leave in order to exercise their functions as 
members of the Reichstag or of a Landtag. 

If they seek election to these bodies, leave necessary to carry- 
on their campaign shall be granted to them. 

Art. 40. The members of the Reichstag shall have the right 
of free transportation on all German railways as well as com- 
pensation provided by national law. 



section iii 
The President of the Reich and the National Ministry 

Art. 41. The President of the Reich shall be elected by the 
whole German people. 

Every German who has completed his thirty-fifth year is 
eligible. Detailed regulations shall be prescribed by a national 
law. 



GERMANY 185 

Art. 42. The President of the Reich shall take the following 
oath on assuming office — 

I swear that I will devote ray energy to the good of the Ger- 
man people, that I will advance the people's interests, will pro- 
tect the people from injury, will maintain the constitution and 
the laws, will fulfill my duties conscientiously, and will exercise 
justice toward all. 

The addition of a religious oath is permissible. 

Art. 43. The term of office of the President shall be seven 
years. Reelection is permissible. 

Before the expiration of his term the President of the Reich 
may be removed from office by popular vote on resolution of the 
Reichstag. The resolution of the Reichstag requires a two- 
thirds majority vote. By such resolution the President is sus- 
pended from further exercise of his functions. If the popular 
vote fails to remove the President such vote shall be regarded as 
a new election of the President and a dissolution of the Reichs- 
tag shall follow. 

The President of the Reich may not be subjected to criminal 
prosecution without the consent of the Reichstag. 

Art. 44, The President of the Reich may not at the same 
time be a member of the Reichstag. 

Art. 45. The President of the Reich represents the Reich in 
international relations. In the name of the Reich he makes 
alliances and other treaties with foreign powers. He accredits 
and receives diplomatic representatives. 

Declaration of war and conclusion of peace shall be made by 
national law. 

Alliances and treaties with foreign states which relate to sub- 
jects of national legislation require the consent of the Reichstag. 

Art. 46. The President of the Reich shall appoint and re- 
move national officials and military officers of the Reich, except 
as otherwise provided by law. He may permit other authorities 
to exercise the powers of appointment and removal. 

Art. 47. The President of the Reich shall have supreme 
command over the entire military forces of the Reich. 

Art. 48. If a state fails to carry out the duties imposed upon 
it by the national constitution or national laws, the President of 
the Reich may compel performance with the aid of armed force. 

If public safety and order be seriously disturbed or threatened 
within the German Reich, the President of the Reich may take 
the necessary measures to restore public safety and order; if 



186 NEW CONSTITUTIONS OF EUROPE 

necessary, with the aid of armed force. For this purpose he 
may temporarily suspend in whole or in part the fundamental 
rights enumerated in Articles 114, 115, 117, 118, 123, 124 and 
153. 

The President of the Reich must immediately communicate 
to the Reichstag all measures taken by virtue of Paragraph 1 
or Paragraph 2 of this Article. On demand of the Reichstag 
these measures must be abrogated. 

If there be danger in delay, the state ministry may, for its own 
territory, take such temporary measures as are indicated in Para- 
graph 2. On demand by the President of the Reich or by the 
Reichstag such measures shall be abrogated. 

Detailed regulations shall be prescribed by a national law. 

Art. 49. The President of the Reich shall exercise the 
pardoning power for the Reich. For national amnesties a na- 
tional law is necessary. 

Art. 50. All orders and decrees of the President of the 
Reich, including those concerning the armed force, require for 
their validity the counter-signature of the Chancellor or of the 
competent national minister. Responsibility is accepted by 
the act of counter-signature. 

Art. 51. In case of disability the President of the Reich shall 
be represented first of all by the Chancellor. If the disability 
will presumably continue for a longer time, the matter of a sub- 
stitute shall be determined by national law. 

In case of a premature vacancy in the presidency, the same 
course shall be followed until a new election has been held. 

Art. 52. The National Ministry shall consist of the Chan- 
cellor and the national ministers. 

Art. 53. The Chancellor and, upon his recommendation, 
the national ministers shall be appointed and removed by the 
President of the Reich. 

Art. 54. The Chancellor and national ministers must have 
the confidence of the Reichstag for the exercise of their offices. 
Any one of them must resign if the Reichstag withdraws its con- 
fidence by express resolution. 

Art. 55. The Chancellor shall preside over the National 
Ministry, and shall conduct its business according to rules of 
procedure which shall be determined by the National Ministry 
and approved by the President of the Reich. 

Art. 56. The Chancellor shall lay down the general course 
of policy and shall be responsible therefor to the Reichstag. 



GERMANY 187 

In accordance with this general pohcy each national minister 
shall independently conduct the branch of administration in- 
trusted to him, and shall be under personal responsibility to the 
Reichstag. 

Art. 57. National ministers shall submit to the National 
Ministry for consideration and decision all legislative proposals 
and all matters for which the constitution or the laws require 
such submission, as well as differences of opinion on questions 
which concern the sphere of action of more than one national 
minister. 

Art. 58. The National Ministry shall reach its decisions by 
majority vote. In case of a tie the vote of the presiding officer 
shall decide. 

Art. 59. The Reichstag shall have power to bring before 
the Supreme Judicial Court impeachment proceedings against 
the President of the Reich, the Chancellor, and the national 
ministers, for a wrongful violation of the constitution or a 
national law. The bill of impeachment must be signed by at 
least one hundred members of the Reichstag and requires the ap- 
proval of the majority necessary for constitutional amendments. 
Detailed regulations for the Supreme Judicial Court shall be 
prescribed by a national law. 

section iv 
The Reichsrat 

Art. 60. A Reichsrat shall be established to represent the 
German states in national legislation and administration. 

Art. 61. Each state shall have at least one vote in the 
Reichsrat. The larger states shall have one vote for each million 
of inhabitants. Any fraction which is equal at least to the total 
number of the inhabitants of the smallest state shall be counted 
as a million. No state may have a representation of more than 
two-fifths of the members. 

German-Austria, after union with the German Reich, shall be 
represented in the Reichsrat by votes corresponding in number 
to its population. Meanwhile the representatives of German- 
Austria shall have a deliberative voice. ^ 

^Stricken out at the demand of the Supreme Council of the Allied and Asso- 
ciated Powers. The Supreme Council addressed the following demand to Ger- 
many on September 2, 1919: 

"The Allied and Associated Powers have examined the German Constitution 
of August 11, 1919. They observe that the provisions of the second paragraph 



188 NEW CONSTITUTIONS OF EUROPE 

The representatives shall be reapportioned by the Reichsrat 
after each general census. 

Art. 62, No state may have more than one vote in commit- 
tees appointed by the Reichsrat from its own membership. 

Art. 63. The states shall be represented in the Reichsrat by 
members of their ministries. But one-half of the Prussian 
representatives shall be appointed, in accordance with a state 



of Article 61 constitute a formal violation of Article 80 of the Treaty of Peace 
signed at Versailles on June 28, 1919. This violation is twofold. 

"1. Article 61 by stipulating for the admission of Austria to the Reichsrat 
assimilates that Republic to the German States composing the German Empire 
— an assimilation which is incompatible with respect to the independence of 
Austria. 

"2. By admitting and providing for the participation of Austria in the Coun- 
cil of the Empire Article 61 creates a political tie and a common political action 
between Germany and Austria in absolute opposition to the independence of the 
latter. 

"In consequence the Allied and Associated Powers, after reminding the Ger- 
man Government that Article 178 of the German Constitution declares that 
'the provisions of the Treaty of Versailles can not be affected by the Constitu- 
tion,' invite the German Government to take the necessary measures to efface 
without delay this violation by declaring Article 61, Paragraph 2, to be null and 
void. 

"Without prejudice to subsequent measures in case of refusal, and in virtue 
of the Treaty of Peace (and in particular Article 29), the Allied and Associated 
Powers inform the German Government that this violation of its engagements 
on an essential point will compel them, if satisfaction is not given to their just 
demand within 15 days from the date of the present note, immediately to order 
the extension of their occupation on the right bank of the Rhine." 

Article 29 of the Treaty of Peace refers to Map No. 1 which shows the boun- 
daries of Germany and provides that the text of Articles 27 and 28 will be final 
as to those boundaries. Article 80 reads as follows: 

"Germany acknowledges and will respect strictly the independence 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." 

A diplomatic act was signed at Paris on September 22, 1919, by the representa- 
tives of the Principal Allied and Associated Powers and Germany in the following 
terms : 

"The undersigned, duly authorized and acting in the name of the German 
Government, recognizes and declares that all the provisions of the German Con- 
stitution of August 11, 1919, which are in contradiction of the terms of the Treaty 
of Peace signed at Versailles on Jime 28, 1919, are null. 

"The German Government declares and recognizes that in consequence Para- 
graph 2 of Article 61 of the said Constitution is null, and that in particidar the 
admission of Austrian representatives to the Reichstag could only take place 
in the event of the consent of the Council of the League of Nations to a corre- 
sponding modification of Austria's international situation. 

"The present declaration shall be approved by the competent German legisla- 
tive authority, within the fortnight following the entry into force of the Peace 
Treaty. 

"Given at Versailles, September 22, 1919, in the presence of the undersigned 
representatives of the Principal Allied and Associated Powers." 

Cf. below, Article 178. 



GERMANY 189 

law, from among the Prussian provincial administrative author- 
ities. 

The states may send to the Reichsrat as many representatives 
as they have votes. 

Art. 64. Upon demand of one-third of its members the 
Reichsrat must be convened by the National Ministry. 

Art. 65. A member of the National Ministry shall preside 
over the Reichsrat and over its committees. The members 
of the National Ministry have the right to, and upon demand 
must, take part in the proceedings of the Reichsrat and its com- 
mittees. On their demand they must be heard at any time dur- 
ing the deliberations. 

Art. 66. The National ISIinistry, as well as every member 
of the Reichsrat, may initiate proposals in the Reichsrat. 

The Reichsrat shall determine its order of business by rules 
of procedure. 

The plenary sessions of the Reichsrat shall be public. Ac- 
cording to the rules of procedure the public may be excluded 
during the discussion of certain matters. 

Decisions shall be reached by simple majority vote. 

Art. 67. The Reichsrat shall be kept informed by the na- 
tional departments concerning the conduct of national business. 
In deliberations upon important matters the appropriate com- 
mittees of the Reichsrat shall be consulted by the national de- 
partments. 

SECTION v 

National Legislation 

Art. 68. Bills shall be intro<^ped by the National IMinistry, 
or by members of the Reichstag. 

National laws shall be enacted by the Reichstag. 

Art. 69. The initiation of bills by the National Ministry 
shall require the consent of the Reichsrat. If the National 
Ministry and the Reichsrat fail to agree, the National Ministry 
may, nevertheless, introduce the bill, but must present there- 
with the dissenting opinion of the Reichsrat. 

If the Reichsrat passes a bill to which the National Ministry 
fails to assent, the Ministry must introduce such bill in the 
Reichstag accompanied by an expression of its views. 

Art. 70. The President of the Reich shall proclaim the laws 
constitutionally enacted, and shall publish them within a month 
in the National Law Gazette. 



190 NEW CONSTITUTIONS OF EUROPE 

Art. 71. National laws, unless otherwise provided, shall 
be effective on the fourteenth day after the day of publication in 
the National Law Gazette in the capital of the Reich. 

Art. 72. Publication of a national law shall be deferred for 
two months on request of one-third of the members of the 
Reichstag. Laws which the Reichstag and the Reichsrat de- 
clare to be urgent may be published by the President of the 
Reich regardless of this request. 

Art. 73. A law passed by the Reichstag shall, before its 
publication, be subject to a referendum if the President of the 
Reich, within a month, so decides. 

A law, the publication of which has been deferred on the 
request of one-third of the members of the Reichstag shall be 
subject to a referendum upon the request of one-twentieth of 
the qualified voters. 

A referendum shall also take place, if one-tenth of the qualified 
voters petition for the submission of a proposed law. Such 
petition must be based on a fully elaborated bill. The bill shall 
be submitted to the Reichstag by the Ministry accompanied by 
an expression of its views. The referendum shall not take 
place if the bill petitioned for is accepted by the Reichstag with- 
out amendment. 

Only the President of the Reich may order a referendum 
concerning the budget, tax laws, and salary regulations. 

Detailed regulations in respect to the referendum and initia- 
tive shall be prescribed by a national law. 

Art. 74. Laws enacted by the Reichstag shall be subject to 
veto by the Reichsrat. 

The veto must be communicated to the National Ministry 
within two weeks after the final vote in the Reichstag, and within 
two additional weeks must be supported by reasons. 

In case of veto the law must be presented to the Reichstag 
for reconsideration. If no agreement upon the matter is reached 
between the Reichstag and the Reichsrat, the President of the 
Reich may within three months submit the matter in dispute 
to a referendum. If the President fails to exercise this right, 
the law shall be considered as of no effect. If the Reichstag 
overrules the veto of the Reichsrat by a two-thirds majority 
vote, the President shall within three months publish the law 
in the form adopted by the Reichstag or shall order a referen- 
dum. 

Art. 75. A resolution of the Reichstag shall not be annulled 



GERMANY 191 

unless a majority of the qualified voters participate in the 
election. 

Art. 76. The constitution may be amended by legislative 
action. However, resolutions of the Reichstag for amendment 
of the constitution are valid only if two-thirds of the legal mem- 
bers are present and if two-thirds of those present give their 
assent. Moreover, resolutions of the Reichsrat for amendment 
of the constitution require a two-thirds majority of all the votes 
cast. If by popular petition a constitutional amendment is to 
be submitted to a referendum, it must be approved by a ma- 
jority of the qualified voters. 

If the Reichstag adopts a constitutional amendment over the 
veto of the Reichsrat, the President of the Reich shall not pub- 
lish this law if the Reichsrat within two weeks demands a ref- 
erendum. 

Art. 77. Except as otherwise provided by law, the National 
Ministry shall issue such general administrative regulations as 
are necessary for the execution of national laws. The National 
Ministry requires for this purpose the approval of the Reichsrat 
in cases in which the execution of national laws rests with the 
authorities of the states. 

section vi 
National Administration 

Art. 78. The conduct of relations with foreign states is ex- 
clusively the function of the Reich. 

The states may make treaties with foreign states on matters 
which fall within the legislative competence of the states; but 
such treaties require the approval of the Reich. 

Agreements with foreign states concerning the alteration of 
the national boundaries shall be concluded by the Reich with 
the consent of the state affected. Changes of boundaries may 
be effected only by a national law except in case of a simple ad- 
justment of the boundaries of uninhabited districts. 

In order to safeguard the representation of interests which 
arise in particular states from their special economic relations 
with, or their geographical contiguity to, foreign states, the 
Reich shall take the necessary measures and make the necessary 
arrangements in agreement with the states affected. 

Art. 79. National defense is a function of the Reich. The 
organization of the armed forces of the German people shall 



192 NEW CONSTITUTIONS OF EUROPE 

be regulated in a uniform manner by a national law with due 
regard to the special regional peculiarities of the population. 

Art. 80. Colonial affairs are within the exclusive jurisdiction 
of the Reich. 

Art. 81. All German merchant ships shall form a single 
commercial fleet. 

Art. 82. Germany forms a single customs and commerce 
zone surrounded by a common customs boundary. 

The customs boundary coincides with the political boundary. 
On the seacoast the shore of the mainland and of the islands 
belonging to the national territory shall form the customs bound- 
ary. Changes may be made in the line of the customs boundary 
on the sea coasts and other waters. 

Foreign territories or parts of territories may by treaties or 
agreements be included within the customs boundary. 

Under special conditions, portions of territory may be ex- 
cluded from the customs zone. In the case of free ports such ex- 
clusion may be terminated only by a constitutional amendment. 

Territories excluded from the customs may be joined to a 
foreign customs zone by treaties or agreements. 

All natural products as well as manufactured articles and 
■works of art which are subjects of free commerce in the Reich 
may be carried across the boundaries of the states for import, 
export, or through traflBc. Exceptions may be made by a na- 
tional law. 

Art. 83. Customs and consumption taxes shall be adminis- 
tered by national authorities. 

In the administration of national taxes by national authorities, 
arrangements shall be made which will permit the states to 
safeguard special state interests in respect to agriculture, com- 
merce, trade, and industry. 

Art. 84. The Reich shall by law regulate: 

(1) The organization of the tax administration of the states, 
so far as the uniform and impartial execution of national tax 
laws requires. 

(2) The organization and powers of the authorities em- 
powered to supervise the execution of the national tax laws. 

(3) Accounting with the states. 

(4) The reimbursement of administrative expenses incurred 
in the execution of the national tax laws. 

Art. 85. All revenues and appropriations of the Reich must 
for each jQscal year be estimated and incorporated in the budget. 



GERMANY 193 

The budget shall be adopted by law before the beginning of 
the fiscal year. 

The appropriations shall as a rule be voted for one year. In 
special cases they may be voted for a longer period. Except in 
such cases the national budget law shall not contain provisions 
which run beyond the fiscal year or which do not relate to the 
revenues and appropriations of the Reich or to their administra- 
tion. 

The Reichstag may not, without the consent of the Reichsrat, 
increase appropriations or insert new items in the draft of the 
budget. 

The consent of the Reichsrat may be dispensed with in accord- 
ance with the provisions of Article 74. 

Art. 86. In the succeeding fiscal year, the minister of na- 
tional finance shall account to the Reichsrat and the Reichstag 
for the disposition of all national revenue so as to discharge the 
responsibility of the National Ministry. The audit shall be 
regulated by national law. 

Art. 87. Funds may be procured on credit only for extraor- 
dinary needs and as a rule only for expenditures for productive 
works. Such a procurement as well as the assumption of any 
liability by the Reich may be undertaken only by authority of a • 
national law. 

Art. 88. Posts and telegraphs, including telephones, are ex- 
clusively in the hands of the Reich. 

Postage stamps shall be uniform throughout the entire Reich. 

The National Ministry shall, with the consent of the Reichs- 
rat, issue regulations prescribing the conditions and rates for 
the use of the services of communication. With the consent of 
the Reichsrat it may delegate this function to the national 
minister of posts. 

The National Ministry shall, with the consent of the Reichs- 
rat, establish an advisory council to consult and cooperate in 
matters pertaining to the posts, telegraphs, telephones, and 
rates. 

Treaties with foreign states in respect to communication 
may be made only by the Reich. ^ 

Art. 89. It shall be the duty of the Reich to acquire as its 
own property all railroads serving as means of general com- 
munication and to administer them as a uniform system of 
transportation. 

iSee Article 170. 



194 NEW CONSTITUTIONS OF EUROPE 

The rights of the states to acquire private railways shall be 
transferred to the Reich on its demand. 

Art. 90. With the taking over of the railways, the Reich 
shall acquire the right of expropriation and the public sovereign 
rights pertaining to the railway system. In respect to the scope 
of these rights the Supreme Judicial Court shall decide in case of 
dispute. 

Art. 91. The National Ministry shall, with the consent of 
the Reichsrat, issue regulations concerning the construction, 
operation, and traffic of the railways. With the consent of the 
Reichsrat it may delegate this function to the competent na- 
tional minister. 

Art. 92. The national railway system, notwithstanding the 
inclusion of its budget and its accounts in the general budget 
and general accounts, shall be administered as an autonomous 
economic enterprise, responsible for its own expenditures in- 
cluding interest and amortization of the railroad debt and the 
accumulation of a railroad reserve fund. The amount of this 
amortization and of the reserve fund, as well as the purposes for 
which the reserve fund shall be used, shall be regulated by 
special law. 

Art. 93. The National Ministry shall, with the consent of 
the Reichsrat, establish advisory councils for the national rail- 
way system to consult and cooperate in matters pertaining to 
railway traffic and rates. 

Art. 94. When the Reich has taken over the railways serving 
as means of general communication within a particular district, 
new railways serving as means of general communication may 
be constructed within such district only by the Reich or with 
its consent. If the construction of new national railway lines 
or the alteration of existing lines touches upon the sphere of 
the police authority of a state, the national railway administra- 
tion shall, before reaching a decision, give a hearing to the state 
authorities. 

Where the Reich has not acquired railroads as a part of 
its administration, it may, by virtue of a national law and 
even against the objection of the states whose territory is 
crossed, but without prejudice to the sovereign rights of the 
states, construct on its own account such railways as are deemed 
necessary for general communication or national defense, or may 
confer upon others the power to construct, together with a grant 
of the right of expropriation in case of necessity. 



GERMANY 195 

Every railway administration must consent to connection with 
other railroads at the latter 's expense. 

Art. 95. Railways of general communication which are not 
administered by the Reich, are subject to supervision by the 
Reich. 

Railways subject to the supervision of the Reich shall be con- 
structed and equipped according to uniform standards estab- 
lished by the Reich. They must be maintained in safe working 
order and must be extended to meet traflSc requirements. Pas- 
senger and freight service shall be furnished and developed ac- 
cording to needs. 

In connection with the supervision of matters pertaining to 
rates, effort shall be made to secure uniform and low railway 
rates. 

Art. 96. All railways, including those not serving as means 
of general communication, must comply with the requirements 
of the Reich for the use of the railways for purposes of national 
defense. 

Art. 97. It shall be the duty of the Reich to acquire as its 
own property and to administer waterways serving as means 
of general communication. 

After such acquisition, waterways serving as means of general 
communication may be constructed or extended only by the 
Reich or with its consent. 

In the administration, extension, or new construction of 
waterways the requirements of agriculture and of water supply 
shall be safeguarded in cooperation with the states. Considera- 
tion must also be given to the promotion of these interests. 

Every waterways administration shall consent to connection 
with other inland waterways at the expense of the entrepreneur. 
The same obligation shall apply to the construction of a con- 
nection between inland waterways and railways. 

In the acquisition of waterways the Reich acquires the right 
of expropriation and the rate-making power as well as police 
authority over water courses and navigation. 

The projects of river improvement associations in respect 
to the extension of natural waterways in the basins of the 
Rhine, the Weser, and the Elbe shall be taken over by the Reicli. 

Art. 98. In accordance with detailed regulations of the 
National Ministry, advisory councils along the national water- 
ways shall, with the consent of the Reichsrat, be established to 
cooperate in matters pertaining to waterways. 



196 NE\Y CONSTITUTIONS OF EUROPE 

Art. 99. On national waterways charges may be made only 
for such construction, improvements, and other public works 
as are intended for the facilitation of traffic. They must not 
exceed, in the case of state or municipal works, the costs incurred 
for construction and maintenance. Construction and mainte- 
nance costs for public works which are not intended exclusively 
for the facilitation of traffic but also for the promotion of other 
ends may be defrayed only in a proportionate ratio by naviga- 
tion charges. Interest and sinking-fund charges for the capital 
expended shall be regarded as construction costs. 

The provisions of the preceding paragraph shall apply to 
charges levied for artificial waterways as well as for public works 
in connection therewith and in harbors. 

In respect to inland navigation, the total cost of a waterway, 
a river basin, or a system of waterways may be taken as the 
basis for computing navigation charges. 

These provisions shall also apply to timber-rafting on naviga- 
ble waterways. 

The Reich alone may levy on foreign ships and their cargoes 
other or higher charges than on German ships and their cargoes. 

For the procurement of funds for the maintenance and exten- 
sion of the German system of waterways, the Reich may also by 
law le\'y contributions on shipping interests in other ways. 

Art. 100. In order to cover the costs of maintenance and 
construction of inland waterways, any person who profits from 
the construction of dams otherwise than by navigation may by 
national law be called upon to contribute, if more than one state 
shares in, or if the Reich bears, the cost of the work. 

Art. 101. It shall be the duty of the Reich to acquire as its 
own property and to administer all aids to navigation, in par- 
ticular lighthouses, lightships, buoys, floats, and beacons. After 
such acquisition, aids to navigation may be constructed or 
extended only by the Reich or with its consent. 

section vii 
Administratiox of Justice 

Art. 102. Judges are independent and responsible only to 
the law. 

Art. 103. Ordinary jurisdiction shall be exercised by the 
national court and by the state courts. 

Art. 104. Judges of ordinary jurisdiction shall be appointed 



GERMANY 197 

for life. Against their will they may be temporarily or perma- 
nently removed from office or transferred to another position 
or retired only by a judicial decision and only for reasons and 
according to forms prescribed by law. Legislation may fix age 
limits at which judges may be retired. 

Temporary removal from office which may take place accord- 
ing to law shall not be affected by this provision. 

In case of a change in the organization of the courts or of 
their judicial districts, the state judicial administration may 
provide for involuntary transfers to another court or for re- 
movals from office, but only with the payment of full salary. 

These provisions shall not apply to commerce judges, petty 
magistrates, or jurors. 

Art. 105. Extraordinary courts are prohibited. No one 
may be withdrawn from the jurisdiction of his legally estab- 
lished court. Provisions of law relating to military courts and 
courts-martial are not hereby affected. Military courts of honor 
are abolished. 

Art. 106. Military jurisdiction is abolished except in time 
of war and on board war vessels. Detailed regulations shall 
be prescribed by national law. 

Art. 107. There shall be administrative courts in the Reich 
and in the states, as provided by law, for the protection of in- 
dividuals against ordinances and decrees of the administrative 
authorities. 

Art. 108. A Supreme Judicial Court shall be established for 
the German Reich in accordance with a national law. 



CHAPTER II 
FUNDAMENTAL RIGHTS AND DUTIES OF GERMANS 

section i 
The Individual 

Art. 109. All Germans are equal before the law. 

Men and women have in principle the same civil rights and 
duties. 

Privileges or discriminations in public law based upon birth 
or rank are abolished. Titles of nobility are regarded only as 
part of a name and may no longer be conferred. 



198 NEW CONSTITUTIONS OF EUROPE 

Titles may be conferred only if they designate an office or a 
profession; academic rank is not hereby affected. 

The state (Staat) may not confer orders and decorations. 

No German may accept titles or orders from a foreign govern- 
ment. 

Art. 110. Citizenship in the Reich and in the states shall be 
acquired and lost in accordance with the provisions of a national 
law. 

Every citizen of a state is at the same time a citizen of the 
Reich. 

Every German shall have in every state of the Reich equal 
rights and duties with the citizens of that state. 

Art. 111. All Germans shall enjoy freedom of movement 
throughout the whole Reich. Everyone shall have the right to 
sojourn and settle in any place he pleases, to acquire property, 
and to carry on any gainful occupation. Restrictions require a 
national law. 

Art. 112. Every German has the right to emigrate to non- 
German countries. Emigration may be restricted only by a 
national law. 

All German citizens within and without the boundaries of 
the Reich have the right of protection by the Reich against 
foreign countries. 

No German may be extradited for prosecution or punishment 
by a foreign government. 

Art. 113. The foreign language parts of the population of 
the Reich may not be interfered with by legislative or ad- 
ministrative action in their free racial development, espe- 
cially in the use of their mother tongue in education, as well as 
in the communal administration and the administration of 
justice. 

Art. 114. Liberty of the person is inviolable. A restriction 
upon, or deprivation of, personal liberty, may not be imposed 
by public authority except by law. 

Persons who have been deprived of their liberty must be in- 
formed no later than the following day by what authority, 
and upon what grounds, the deprivation of liberty was ordered; 
without delay they shall have the opportunity to lodge objec- 
tions against such deprivation of liberty. ' 

Art. 115. The dwelling of every German is his sanctuary 
and is inviolable. Exceptions may be imposed only by au- 
thority of law. 



GERMANY 199 

Art. 116. An act may be punishable only if the penalty was 
fixed by law before the act was committed. 

Art. 117. Secrecy of postal, telegraphic, and telephonic 
communication is inviolable. Exceptions may be permitted 
only by a national law. 

Art. 118. Every German has the right within the limits of 
the general laws, to express his opinion orally, in writing, in 
print, pictorially, or in any other way. No circumstance arising 
out of his work or employment shall hinder him in the exercise 
of this right, and no one shall discriminate against him if he 
makes use of such right. 

No censorship shall be established, but exceptional provisions 
may be made by law for cinematographs. Moreover, legal 
measures are permissible for the suppression of indecent and ob- 
scene literature, as well as for the protection of youth at public 
plays and exhibitions. 

section ii 

Community Life 

Art. 119. Marriage, as the foundation of family life and of 
the preservation and increase of the nation, stands under the 
special protection of the constitution. It shall rest upon the 
equality of rights of both sexes. 

It shall be the duty of the state (Staat) and of the municipali- 
ties to maintain the purity, health, and social welfare of the 
family. Families of many children shall have the right to com- 
pensatory public assistance. 

Maternity shall have the right to the protection and public 
assistance of the state. 

Art. 120. The education of their children for physical, in- 
tellectual, and social efficiency is the highest duty and natural 
right of parents, whose activities shall be supervised by the 
political community. 

Art. 121. Illegitimate children shall be given by law the 
same opportunities for their physical, intellectual, and social 
development as legitimate children. 

Art. 122, Youth shall be protected against exploitation as 
well as against moral, spiritual, or physical neglect. The state 
(Staat) and the municipalities shall make the necessary pro- 
visions. 

Protective measures by way of compulsion may be instituted 
only by authority of law. 



200 NEW CONSTITUTIONS OF EUROPE 

Art. 123. All Germans have the right to assemble peaceably 
and unarmed without notice or special permission. 

By national law notice may be required for meetings in the 
open air, and they may be prohibited in case of immediate dan- 
ger to the public safety. 

Art. 124. All Germans have the right to form societies or 
associations for purposes not prohibited by the criminal code. 
This right may not be limited by preventive regulations. T^^e 
same provision applies to religious societies and associations. 

Every association has the right to incorporate according to 
the provisions of the civil code. Such right may not be denied 
to an association on the ground that its purpose is political, 
social, or religious. 

Art. 125. Freedom and secrecy of voting are guaranteed. 
Details shall be prescribed by the election laws. 

Art. 126. Every German has the right to address in writing 
petitions or complaints to the competent authorities or to repre- 
sentative bodies. This right may be exercised by individuals 
as well as by groups. 

Art. 127. Municipalities and groups of municipalities have 
the right of local autonomy within the limitations of the 
laws. 

Art. 128. All citizens without discrimination shall be eligible 
for public office in accordance with the laws and their capacities 
and merits. 

All exceptional provisions in respect to female officials shall 
be abolished. 

The principles governing official relationships shall be regu- 
lated by national law. 

Art. 129. Officials shall be appointed for life except as 
otherwise provided by law. Pensions and provision for sur- 
viving dependents shall be regulated by law. Duly acquired 
rights of officials shall be inviolable. Lawful salary claims of 
officials may be established by legal process. 

Officials may be temporarily removed from office, provision- 
ally or permanently retired, or transferred to another position 
at a smaller salary, only for reasons and according to forms 
provided by law. 

In case of disciplinary punishment a mode of redress and the 
opportunity for reconsideration shall be open. 

Entries upon the service records of an official of facts un- 
favorable to him shall be taken into consideration only after he 



GERMANY 201 

has been given an opportunity to be heard in respect to them. 
Officials shall have a right to inspect their service records. 

The inviolability of duly acquired rights and the right of 
resort to legal process for lawful salary claims are especially 
guaranteed to professional soldiers. Their status shall in other 
respects be regulated by national law. 

Art. 130. Officials are servants of the whole community 
and not of a party. 

All officials shall be guaranteed freedom of political opinion 
and freedom of association. 

Officials shall receive special official representation according 
to detailed provisions of national law. 

Art. 131. If an official in the exercise of the public authority 
vested in him be guilty of a breach of his official duty toward a 
third party, responsibility therefor shall attach primarily to 
the state or to the public body in whose service the official is. 
The right of redress against the officer is reserved. The ordi- 
nary legal process shall not be denied. 

The competent legislative authority shall make detailed regu- 
lations. 

Art. 132. It is the duty of every German, in accordance with 
the laws, to accept honorary office. 

Art. 133. It is the duty of all citizens in accordance with the 
laws, to perform personal service for the state (Staat) and the 
municipalities. 

Military duty shall be regulated in accordance with the pro- 
visions of the laws of national defense. These laws shall deter- 
mine also to what extent certain fundamental rights may be 
denied to members of the armed forces in order to assure the 
performance of their duties and the maintenance of discipline. 

Art. 13l!. All citizens without discrimination shall in propor- 
tion to their means contribute to all public burdens in accord- 
ance with the laws. 

section iii 

Religion and Religious Associations 

Art. 135. All inhabitants of the Reich shall enjoy complete 
liberty of belief and conscience. The peaceful exercise of reli- 
gious worship shall be guaranteed by the constitution and is 
under the protection of the state (Staaf). General legislation 
shall not be affected by this provision. 



202 NEW CONSTITUTIONS OF EUROPE 

Art. 136. Civil and political rights and duties shall be 
neither conditioned upon, nor restricted by, the exercise of re- 
ligious freedom. 

The enjoyment of civil and political rights as well as eligibility 
to public office shall be independent of religious belief. 

No one shall be compelled to disclose his religious convictions. 
The authorities have the right to inquire into a person's member- 
ship in a religious association only in so far as rights and duties 
are dependent thereon, or in so far as may be required by a 
legally instituted census. 

No one may be compelled to be present at any religious act 
or ceremony or to take part in religious exercises or to use any 
form of religious oath. 

Art. 137. There is no state church (Staatskirche) . 

Freedom of assembly in religious association is guaranteed. 
No restriction shall be placed upon the union of religious asso- 
ciations within the territory of the Reich. 

Every religious association shall direct and administer its 
affairs without interference, within the limitations of the law 
applicable to all. It shall fill its otvti offices without assistance 
from the state (Staat) or local authorities. 

Religious associations have the right to incorporate according 
to the general provisions of the civil code. 

Religious associations shall, to the extent that they were 
formerly, remain public corporations. The same rights may be 
accorded to other religious associations if, by their constitution 
and the number of their members, they give assurance of per- 
manence. If several of these public corporate religious associa- 
tions combine in a union, this union shall also be a public corpor- 
ation. 

Religious associations which are public corporations are en- 
titled to levy taxes on the basis of the civil tax lists in accordance 
with provisions of the laws of the states. 

Societies which aim at mutual cultivation of a Weltanschauung 
shall be in a status similar to that of religious associations. 

So far as the execution of these provisions requires further 
regulation, it shall be pro\'ided by legislation of the states. 

Art. 138. Public grants to religious associations by law, 
contract, or special legal title may be redeemed by legislation of 
the states. The general principles for this shall be established 
by the Reich. 

The property and other rights of religious associations and 



GERMANY 203 

religious unions in their cultural, educational, and social wel- 
fare institutions, foundations, and other funds shall be guaran- 
teed. 

Art. 139. Sundays and holidays recognized by the state 
(Staai) remain protected by law as days of rest and spiritual 
uplift. 

Art. 140. Necessary free time shall be accorded to the 
members of the armed forces for the fulfilment of their religious 
duties. 

Art. 141. So far as there is need for divine worship and spir- 
itual ministration in the army, hospitals, penal establishments, 
or other public institutions, religious associations shall be ad- 
mitted for the performance of religious ofiices without the 
exercise of any compulsion. 

section iv 
Education and Schools 

Art. 142. Art, science, and instruction in them are free. The 
state (Staat) guarantees their protection and participates in their 
promotion. 

Art. 143. The education of youth shall be provided for 
through public institutions. The Reich, the states, and the 
municipalities shall cooperate in their organization. 

The training of teachers shall be uniformly regulated for the 
Reich according to the principles which apply generally to 
higher education. 

The teachers in public schools shall have the rights and duties 
of state officials. 

Art. 144. The entire school system shall be under the super- 
vision of the state; the latter may cause the municipalities to 
participate therein. The supervision of schools shall be carried 
on by officials mainly occupied with this duty and technically 
trained. 

Art. 145. Compulsory education shall be universal. For 
this purpose the elementary school wnth at least eight school 
years, followed by the continuation school up to the completion 
of the eighteenth year, shall serve primarily. Instruction and 
school supplies shall be free in elementary and continuation 
schools. 

Art. 146. The public school system shall be organized ac- 
cording to a general plan. The intermediate and higher school 



204 NEW CONSTITUTIONS OF EUROPE 

system shall be developed on the basis of an elementary school 
common to all. This development shall be governed by the 
varying requirements of vocations ; and the adrnission of a child 
to a particular school shall be governed by his ability and apti- 
tude and not by the economic and social position or the religious 
belief of his parents. 

Nevertheless, within the municipalities, upon the request of 
those persons having the right to education, elementary schools 
of their own religious belief or of their Weltanschauung shall be 
established, provided that an organized school system in the 
sense of Paragraph 1 is not thereby interfered with. The wishes 
of those persons having the right to education shall be considered 
so far as possible. Detailed regulations shall be prescribed by 
state legislation on the basis of a national law. 

To enable those in poor circumstances to attend secondary 
and higher schools, the Reich, the states, and the municipalities 
shall provide public funds, especially educational allowances 
for the parents of children who are considered qualified for fur- 
ther education in intermediate and higher schools until the com- 
pletion of such education. 

Art. 147. Private schools as a substitute for public schools 
shall require the approval of the state (Siaat) and shall be 
subject to the laws of the states (Lander). Such approval 
shall be granted if the standard of the private schools in their 
curricula and equipment, as well as in the scientific training of 
their teachers, does not fall below that of the public schools, 
and if no discrimination against pupils on account of the eco- 
nomic standing of their parents is fostered. Such approval shall 
be denied if the economic and legal status of the teachers is not 
sufiiciently safeguarded. 

Private elementary schools shall be established only if, for a 
minority of those persons having a right to education whose 
washes must be taken into consideration according to Article 146, 
Paragraph 2, there is in the municipality no public elementary 
school of their religious belief or of their Weltanschauung, or if 
the educational administration recognizes a special pedagogical 
interest. 

Private preparatory schools are abolished. 

The existing laws shall continue in force for private schools 
which do not serve as substitutes for public schools. 

Art. 148. In all schools effort shall be made to develop moral 
education, civic sentiments, and personal and vocational effi- 



GERMANY 205 

ciency in the spirit of the German national character and of 
international conciliation. 

In the instruction in the public schools care shall be taken 
not to offend the sensibilities of those of contrary opinions. 

Civic education and manual training shall be part of the cur- 
ricula of the schools. Every pupil shall at the end of his obliga- 
tory schooling receive a copy of the constitution. 

The Reich, the states, and the municipalities shall foster 
popular education, including people's institutes. 

Art. 149. Religious instruction shall be part of the regular 
school curriculum with the exception of non-sectarian (secular) 
schools. Such instruction shall be regulated by the school laws. 
Religious instruction shall be given in harmony with the funda- 
mental principles of the religious association concerned without 
prejudice to the right of supervision by the state (Staat). 

Teachers shall give religious instruction and conduct church 
ceremonies only upon a declaration of their willingness to do so; 
participation in religious instruction and in church celebrations 
and acts shall depend upon a declaration of willingness by those 
who control the religious education of the child. 

Theological faculties in institutions of higher learning shall be 
maintained. 

Art. 150. Artistic, historical, and natural monuments as well 
as landscapes enjoy the protection and care of the state (Staat). 

It shall be the duty of the Reich to prevent the removal of 
German artistic treasures to foreign countries. 



section v 
Economic Life 

Art. 151. The organization of economic life must conform 
to the principles of justice to the end that all may be guaranteed 
a decent standard of living. Within these limits the economic 
liberty of the individual shall be assured. 

Legal compulsion is permissible only to safeguard threatened 
rights or to serve the purpose of promoting an overwhelming 
public interest. 

Freedom of commerce and industry shall be guaranteed by 
national laws. 

Art. 152. In economic transactions freedom of contract 
shall prevail in accordance with the law. 



206 NEW CONSTITUTIONS OF EUROPE 

Usury is prohibited. Legal transactions which are contrary 
to pubhc pohcy are null and void. 

Art. 153. Property shall be guaranteed by the constitution. 
Its nature and limits shall be prescribed by law. 

Expropriation shall take place only for the general good and 
only on the basis of law. It shall be accompanied by payment 
of just compensation unless otherwise provided by national law. 
In case of dispute over the amount of compensation recourse to 
the ordinary courts shall be permitted, unless otherwise provided 
by national law. Expropriation by the Reich over against the 
states, municipalities, and associations serving the public welfare 
may take place only upon the payment of compensation. 

Property imposes obligations. Its use by its owner shall at 
the same time serve the public good. 

Art. 154. The right of inheritance shall be guaranteed ac- 
cording to the provisions of the civil code. 

The share of the state in estates shall be determined by law. 

Art. 155. The distribution and use of the soil shall be con- 
trolled by the state in such a manner as to prevent abuse and to 
promote the object of assuring to every German a healthful 
habitation and to all German families, especially those with 
many children, homesteads for living and working that are 
suitable to their needs. Discharged soldiers shall receive 
special consideration in the homestead law that is to be 
drafted. 

Landed property the acquisition of which is necessary for the 
satisfaction of the demand for dwellings, for the promotion of 
colonization and reclamation, or for the improvement of agricul- 
ture may be expropriated. Entailments shall be abolished. 

The cultivation and use of the soil shall be the duty of its 
owner toward the community. An increase in the value of land 
which accrues without the application of labor or capital to the 
property shall inure to the benefit of all. 

All natural resources of the soil and all economically useful 
forces of nature shall be under the supervision of the state (Staai). 
Private royalties shall by law be transferred to the state {Staai). 

Art. 156. The Reich may by law, without prejudicing the 
right of compensation, and with due application of the provisions 
in force with regard to expropriation, transfer to public 
ownership private economic enterprises suitable for socialization. 
The Reich itself may participate or may cause the states or 
municipalities to share in the management of economic enter- 



GERMANY 207 

prises and associations, or may in any other manner assure to 
itself a determining influence therein. 

Moreover, in case of pressing need, the Reich may, in the in- 
terest of collectivism, combine by law, on a basis of administra- 
tive autonomy, economic enterprises and associations, in order to 
secure the cooperation of all human elements of production, to 
give to employers and employees a share in management, and 
to regulate the manufacture, production, distribution, use, and 
prices, as well as the import and export, of economic goods upon 
collectivist principles. 

Producing and consuming cooperative societies, or associations 
thereof, shall upon their request be brought into the collectivist 
system with due regard for their constitution and peculiarities. 

Art. 157. Labor shall be under the special protection of the 
Reich. 

The Reich shall adopt a uniform labor code. 

Art. 158. Intellectual labor, rights of authors, inventors, and 
artists shall enjoy the protection and care of the Reich. 

Recognition of, and protection for, the products of German 
intellect, art, and technical science shall also be secured in for- 
eign countries by international agreements. 

Art. 159. For the defense and amelioration of conditions of 
labor and of economic life, freedom of association is guaranteed 
to everyone and to all professions. All agreements and provi- 
sions which attempt to limit this freedom or seek to hinder its 
exercise are illegal. 

Art. 160. Any person who stands in a service or work re- 
lationship as employee or worker shall have the right to such 
free time as is necessary for the exercise of his civic rights and, 
in so far as the business in which he is engaged is not thereby 
seriously interfered with, for the performance of the public hon- 
orary official duties assigned to him. The extent to which his 
claim to compensation shall be recognized will be determined by 
law. 

Art. 161. The Reich shall, with the controlling participation 
of the insured, establish a comprehensive scheme of insurance 
for the conservation of health and of the capacity to work, for 
the protection of maternity, and for the amelioration of the 
economic consequences of old age, infirmity, and the changing 
circumstances of life. 

Art. 162. The Reich shall endeavor to secure international 
regulation of the legal status of workers to the end that the en- 



208 NEW CONSTITUTIONS OF EUROPE 

tire working class of the world may enjoy a universal minimum 
of social rights. 

Art. 163. Every German shall, without prejudice to his 
personal freedom, be under the moral duty to use his intellectual 
and physical capacity as may be demanded by the general wel- 
fare. 

Every German shall be given an opportunity to gain a living 
by productive work. In so far as a suitable occupation cannot 
be found for him, provision shall be made for his necessary 
maintenance. Detailed regulations shall be prescribed by spe- 
cial national laws. 

Art. 164. The independent middle class in agriculture, in- 
dustry, and commerce shall be benefited by legislation and 
administration and shall be protected against exploitation and 
oppression. 

Art. 165. Workers and employees shall be called upon to 

cooperate in common with employers, and on an equal footing, 

/ in the regulation of salaries and working conditions, as well as 

in the entire field of the economic development of the forces of 

' production. The organizations on both sides and their agree- 

^ ments shall be recognized. 

Workers and employees shall, for the purpose of looking after 
their economic and social interests, be given legal representation 
in Factory Workers Councils, as well as in District Workers 
Councils organized on the basis of economic areas and in a 
Workers Council of the Reich. 

District Workers Councils and the Workers Council of the 
Reich shall meet with the representatives of employers and 
other interested population groups as District Economic Coun- 
cils and as an Economic Council of the Reich (Reichswirtschafts- 
rat) for the purpose of performing economic functions and for 
cooperation in the execution of the laws of socialization. Dis- 
trict Economic Councils and the Economic Council of the Reich 
shall be constituted so that all important economic groups shall 
be represented therein proportionately to their economic and 
social importance. 

The National Ministry shall, before proposing drafts of 
politico-social and politico-economic bills of fundamental im- 
portance, submit them to the Economic Council of the Reich 
for consideration. The Economic Council of the Reich shall 
itself have the right to initiate drafts of such bills. If the 
National Ministry fails to assent, it shall nevertheless present the 



GERMANY 209 

draft to the Reichstag accompanied by an expression of its views. 
The Economic Council of the Reich may designate one of its 
members to appear before the Reichstag in behalf of the pro- 
posal. 

Powers of control and administration may be conferred upon 
Workers and Economic Councils within the spheres assigned 
to them. 

The regulation of the development and functions of Workers 
and Economic Councils, as well as their relations with other 
administratively autonomous social bodies shall be exclusively a 
matter for the Reich. 

TRANSITIONAL AND CONCLUDING PROVISIONS 

Art. 166. Until the establishment of the Supreme Adminis- 
trative Court, the Supreme Judicial Court shall take its place 
in the organization of the tribunal to examine election returns. 

Art. 167, The provisions of Article 18, Paragraphs 3 to 6, 
shall not be effective until two years after the promulgation of 
the constitution of the Reich. 

Within two months after the German authorities have again 
taken over the administration of the previously occupied terri- 
tory, a referendum according to Article 18, Paragraph 4, Sen- 
tence 1, and Paragraph 5 shall take place in the Prussian prov- 
ince of Upper Silesia in order to ascertain whether a state of 
Upper Silesia shall be formed. 

If the referendum results affirmatively, the state shall forth- 
with be established without the necessity of an additional na- 
tional law. Thereupon the following provisions shall be in 
force : 

(1) Within three months after the official result of the refer- 
endum is determined, a state assembly shall be elected which 
shall be convened for the establishment of the state ministry 
and the drafting of the state constitution. The President 
of the Reich shall issue a writ of election according to the 
provisions of the national election law and he shall fix the 
election day. 

(2) The President of the Reich, in cooperation with the 
state assembly of Upper Silesia, shall declare when the state 
shall be considered established. 

(3) The following shall be citizens of Upper Silesia: 

(a) All adult citizens of the Reich who on the date of the 



210 NEW CONSTITUTIONS OF EUROPE 

establishment of the state of Upper Silesia (No. 2) had 
within its territory their permanent abode or their domicile 
shall be citizens from that date; 

(b) Other adult Prussian citizens who were born within 
the territory of the province of Upper Silesia and who within 
one year after the establishment of the state (No. 2) declare 
that they desire to be citizens of Upper Silesia shall be 
citizens on the date of the filing of such declaration; 

(c) All citizens of the Reich who by birth, legitimation, or 
marriage follow the citizenship of any person specified in (a) 
or (b).^ 

Art. 168. Until the promulgation of the state law provided 
for by Article 63, but no later than July 1, 1921,- all Prussian 
votes in the Reichsrat may be exercised by members of its 
ministry. 

Art. 169. The National Ministry shall determine the time 
at which Article 83, Paragraph 1, shall go into effect. 

During a reasonable transition period, the collection and ad- 
ministration of customs and consumption taxes may be left to 
the states at their request. 

Art. 170. The postal and telegraph services of Bavaria and 
Wiirttemberg shall be taken over by the Reich not later than 
April 1, 1921. 

If no agreement upon the conditions of transfer is reached 
by October 1, 1920, the Supreme Judicial Court shall decide. 

Until the transfer, the existing rights and duties of Bavaria 
and Wiirttemberg shall remain in force. Postal and telegraph 
communication with neighboring foreign countries shall, how- 
ever, be exclusively regulated by the Reich. 

Art. 171. State railways, waterways, and maritime signals 
shall be taken over by the Reich no later than April 1, 1921. 

If no agreement upon the conditions of the transfer is reached 
by October 1, 1920, the Supreme Judicial Court shall decide. 

'Paragraph 1 of this Article was in the original constitution. The other para- 
graphs were added by an amendment adopted November 27, 1920. Reicksgesetz- 
blati, 1920, No. 1987. 

By Paragraph 1 no referendum could be had upon a change of the boundaries 
of a state or the creation of a new state for a period of two years after the adop- 
tion of the constitution, i. e., not until August 11, 1921. For a discussion of this 
amendment, see above pp. 65 ff. 

-Originally this clause read "Within the period of one year." Prussia was 
unable to comply with the requirement of Article 63. By a constitutional 
amendment of August 6, 1920 {Reichsgesetzblatt, 1920, No. 1565) the time was 
extended to July 1, 1921. 



GERMANY 211 

Art. 172. Until the national law concerning the Supreme 
Judicial Court (Staatsgerichtshof) goes into effect its functions 
shall be exercised by a Senate of seven members, four of whom 
shall be elected by the Reichstag and three by the National 
Court (Reichsgericht) from among its own members. It shall 
regulate its own procedure. 

Art. 173. Until the promulgation of a national law provided 
for by Article 138, existing public grants to religious associations 
based on law, contract, or special legal title shall remain in force. 

Art. 174. Until the promulgation of a national law provided 
for in Article 146, Paragraph 2, the existing legal status shall 
continue. The law shall give special consideration to parts 
of the Reich in which schools legally exist that are not divided 
according to religious beliefs. 

Art. 175. The provision of Article 109 shall not be applicable 
to orders and decorations which may be awarded for services 
during the years of the war, 1914-1919. 

Art. 176. All public officials and members of the armed 
forces shall take oath to support this constitution. Detailed 
regulations shall be prescribed by an ordinance of the President 
of the Reich. 

Art. 177. Wherever in existing laws provision is made for 
the taking of an oath by the use of a religious formula the oath 
shall also be valid when taken in the following manner: the per- 
son taking the oath, omitting the religious formula, shall declare : 
"I swear." In other respects the content of the oath provided 
for in the laws shall remain unaffected. 

Art. 178. The constitution of the German Reich of April 
16, 1871, and the law relating to the provisional powers of the 
Reich of February 10, 1919, are hereby annulled. 

The other laws and ordinances of the Reich shall remain in 
force in so far as they are not in conflict with this constitution. 
The provisions of the Treaty of Peace signed at Versailles on 
June 28, 1919, shall not be affected by this constitution. In 
consideration of the negotiations for the possession of the 
Island of Heligoland, deviation may be made from the provision 
of Article 17, Paragraph 2, in favor of its indigenous population.^ 

Orders legally issued by public authorities on the basis of 
previous laws shall remain in force until annulled by subsequent 
order or legislative action. 

iThis sentence was added by a constitutional amendment of August 6, 1920. 
Reichsgesetzblatt, 1920, No. 1566. 



212 NEW CONSTITUTIONS OF EUROPE 

Art. 179. In so far as reference is made in laws or ordinances 
to regulations and adjustments which are repealed by this con- 
stitution, the corresponding regulations and adjustments of this 
constitution shall be substituted therefor. Specifically the 
Reichstag shall take the place of the Constituent Assembly, the 
Reichsrat shall take the place of the Committee of the States, 
and the President of the Reich elected by virtue of this constitu- 
tion shall take the place of the President of the Reich elected 
by virtue of the law relating to the provisional powers of the 
Reich. 

The power vested in the Committee of the States, according 
to previous regulations, to enact ordinances shall be taken over 
by the National Ministry; for the enactment of ordinances 
the National Ministry requires the consent of the Reichsrat in 
accordance with the provisions of this constitution. 

Art. 180. Until the first Reichstag convenes the Constituent 
Assembly shall function as the Reichstag. Until the first Presi- 
dent of the Reich assumes office, the President of the Reich 
elected by virtue of the law relating to the provisional powers of 
the Reich shall exercise the functions of the office. 

Art. 181. The German people has, through its Constituent 
Assembly, determined upon and decreed this constitution. It 
shall go into effect on the day of its publication. 

SCHWARZBURG, AugUSt 11, 1919 

The President of the Reich 
Ebert 

The National Ministry 

Bauer 

Erzberger Heriviann MiJLLER Dr. David 

NosKE Schmidt Schlicke Giesberts 

Dr. Mayer Dr. Bell 



CHAPTER X 
PRUSSIA 

1. HISTORICAL NOTE 

It was Prussia that created the North German Con- 
federation in 1866 and the German Empire in 1871. Her 
obstacle at the time was state particularism. Her instru- 
ments were war, intimidation, and a modicum of Bis- 
marckian diplomacy. Once the union was effected her 
paramountcy in the Empire was never seriously in danger. 
Hers was three-fifths of the population. Changes in the 
imperial constitution could be made and other important 
legislation enacted only with her consent. In fact, little 
was done without her consent; and practically all things 
were done at her behest. For the Kjng of Prussia was 
German Emperor because he was King of Prussia. Herein 
lay one cornerstone of Prussian political supremacy. As 
a result, except for a negligible period of time, the Prime 
Minister of Prussia (President of the Council of Ministers) 
and the Chancellor of the Empire were always one and the 
same person. Moreover, this powerful dual officer was 
always a Prussian, wdth the exception of Prince Hohenlohe 
(1894-1900), a Bavarian pre-Empire imperialist, and of 
Count von Hertling of Bavaria and of Prince Max von 
Baden, to whom the Emperor turned in something of 
desperation toward the end of the war. 

Federalism it was that the Empire enjoyed; but it was 
federalism under the hegemony of a single dominant state.^ 



Prussia's 
position in 
the 

German 
Empire 



iSee above, pp. 62-68; 7i2-74. 



213 



214 NEW CONSTITUTIONS OF EUROPE 



Constitution 
of 1850 



The revolu- 
tion of 
November, 
1918 



And the material prosperity that accrued to the Empire, 
not to mention the Prussianization of the imperial army, 
served inevitably to enhance this dominance. Prussian 
supremacy was the most striking characteristic of German 
federalism as compared with the other federal systems of 
the world. 

When Prussia led the other German states into imperial 
union, she herself was operating under her constitution of 
January 31, 1850. Under this instrument she continued 
to operate. Not a single change of importance was made 
prior to the opening of the war. Especially was the re- 
actionary three-class system of voting preserved in the 
face of frequently voiced criticism and denunciation. It 
was a stalwart bulwark against the possible transformation 
of democracy from vocal aspiration into reality. It is 
true that after three years of war (July 11, 1917) an impe- 
rial rescript promised the abolition of the three-class 
system and the introduction of equality of suffrage for the 
next elections. But the promise came too late. Consti- 
tutional reform in Prussia, as in the Empire, was to arrive 
by the avenue of military defeat. 

In November, 1918, the imperial government collapsed. 
The revolution in the Empire was accompanied by more 
or less distinct revolutions in each of the several states. 
Because of her position in the Empire the revolution in 
Prussia was practically identical with the revolution in the 
Empire. The flight of the German Emperor was also the 
flight of the Prussian King. There was established in 
Berlin not only a provisional government of the Empire 
but also a provisional government of Prussia. For several 
months these governments weathered the storms of revo- 
lution. In January, 1919, the Prussian provisional govern- 
ment called for the election of a constituent assembly. 
The election of delegates was held on January 26, 1919, 
under the system of proportional representation provided 
by the Decree of November 30, 1918, which regulated 



PRUSSIA 



215 



elections to membership in the constituent assembly of the 
Reich.i 

The Prussian constituent assembly came together on 
March 5. On March 20 the assembly enacted a law set- 
ting up a provisional government. Complete power was 
reserved to the assembly itself, but for the exercise of exec- 
utive power ministers were provided, each minister being 
directly responsible to the assembly. 

Most of the German states proceeded quickly to draft 
new constitutions establishing permanent governments on 
a new legal basis. Some of them antedated the procla- 
mation of the Constitution of the German Reich on Au- 
gust 11, 1919. In one or two instances, as in Bavaria and 
Wiirttemberg, these hurriedly drafted constitutions had 
to be remade in the republican form required by the na- 
tional fundamental law. 

Almost of necessity, however, the Prussian constituent 
assembly made haste slowly. It was well-nigh impossible 
to establish a permanent government for Prussia until 
her position in the realm had been predetermined. The 
South Germans, the party of the Center, and many of the 
Socialists were strongly opposed, although for very differ- 
ent reasons, to a continuation of the Prussian hegemony.^ 
On the one hand, however, was the necessity for German 
unity — a close union of the several states. On the other 
hand was the ineluctable fact of the preponderating Prus- 
sian population. How could the union of states be pre- 
served while the paramountcy of Prussia was weakened or 
destroyed.'^ Out of this dilemma arose the agitation for 
a segmentation of Prussia and the exaltation of some of 
her provinces to the status of states of the Reich. 

^Supra, p. 172. The election results were as follows: Social Democrats, 145; 
Christian People's Party (old Center or Catholic Federal), 94; German Demo- 
cratic Party (old Progressives and Radical Liberals), 66; German National 
People's Party (old Conservatives), 50; Independent Socialists, 24; German 
People's Party (old National Liberals), 21; Hanoverians, 2. Total 402. 

'Paul Matter, " I^ constitution prussienne et les elections du 20 fevrier 1921, " 
Revue des sciences poliiiques. Vol. 44, No. 2, April-June, 1921, p. 185. 



Constituent 

assembly 

elected 



Assembly 

worked 

slowly 



216 NEW CONSTITUTIONS OF EUROPE 



Decentral- 
ization in 
the Reich 
and in 
Prussia 



Difficulties 
of the 
assembly 



Everybody must have realized, however, that the dis- 
memberment of Prussia within the Reich would operate 
in the direction of German weakness, unless a unitary • 
state, which would be controlled by the preponderant 
Prussian population, were substituted for the federal 
sj^stem. An all-powerful Prussia had been the strength 
of a powerful Empire; a united Prussia must still be the 
strength of a federated Germany. The national constitu- 
tion of Weimar probably settled the unity of Prussia so 
far as the national federation was concerned. In respect 
to matters of strictly state concern it was still possible to 
introduce into the constitution of Prussia as large an 
amount of decentralization as seemed to be desirable. 
But the powers of the central government of the realm 
were so large that this element of decentralization, even if 
established, could not be of enormous importance in na- 
tional politics. The national constitution did not alter 
Prussia as a unit; of necessity, therefore, there had to be a 
strong central government in Prussia for national pur- 
poses. Her relations with the central government Prussia 
could not devolve upon her provinces. 

Even after the integrity of Prussia in the Reich had been 
fairly determined by the national constitution, the constit- 
uent assembly found it no easy matter to draft a form of 
government adjusted to the new situation and acceptable 
to the various conflicting opinions. A definite draft of a 
constitution was not presented to the assembly until 
February 25, 1920. This was the proposal of the Social 
Democrats comprising the largest single group in the as- 
sembly. A special commission was appointed to consider 
the proposal. Certain changes were made, especially in the 
direction of increasing the powers of the Staatsrat. The 
chief dijBaculty was encountered in respect to the matter 
of provincial autonomy — a matter which was in the end 
left largely unsettled. Apparently the only concessions 
to provincial autonomy are the provision that the mem- 



PRUSSIA 



217 



bers of the Staatsrat, a quasi second chamber, shall be 
elected by the provincial diets, and the vague and uncer- 
tain direction that the provinces and communes shall 
enjoy self-government and that their powers of self- 
government may be increased by law. In October the 
commission made its report and in November the assem- 
bly adopted the constitution by a vote of 280 to 60. The 
constitution was promulgated November 30, 1920, two 
years after the revolution and fifteen months subsequent 
to the promulgation of the constitution of the Reich. ^ 
The first election under the constitution was held February 
20, 1921. 



Constitution 
of 1920 
promulgated 



2. CONSTITUTION OF THE FREE STATE OF PRUSSIA 
OF NOVEMBER 30, 1920 

The Prussian people by its Constituent Assembly gives itself 
the following constitution, which is hereby promulgated: 



section i 

The State 

Article 1. (1) Prussia is a republic and a member of the 
German Reich. 

(2) The consent of Prussia, required by the constitution of 
the Reich for territorial alterations, shall be given by law. 

(3) The Prussian colors are black and white. 

(4) The language used in public business and negotiations 
shall be German. 

section ii 
The Powers of the State 

Art. 2. The sovereignty of the state resides in the whole 
people. 

Art. 3. In accordance with the provisions of this constitu- 
tion and of the constitution of the Reich, the people shall express 

^The following translation was made for this volume from the German text in 
Preussische Gesetzsammlung, 1920, No. 54. A French version, by M. Robert 
Redslob, which is not wholly accurate, is to be found in Revue du droit public et 
de la science politique. Vol. 38, No. 2, April-May-June, 1921, p. 196. 



218 NEW CONSTITUTIONS OF EUROPE 

their will directly through popular suffrage (popular initiative, 
popular referendum, and popular election) and indirectly 
through the agencies established by the constitution. 

Art. 4. (1) All German citizens, men and women, over 
twenty years of age, who are domiciled in Prussia, are qualified 
to vote. 

(2) The right to vote shall be universal and equal and shall 
be exercised secretly and directly. Election day must be a 
Sunday or a public holiday. 

(3) Detailed regulations shall be prescribed by law. 

Art. 5. The following persons shall be denied the right to 
vote: 

(a) those who are under interdiction or who have been 
placed under temporary guardianship or are under tutelage 
by reason of mental incapacity; 

(b) those who do not possess civil rights. 
Art. 6. (1) Popular initiative may be used for: 

(a) constitutional amendments; 

(b) enactment, amendment, or repeal of laws; 

(c) dissolution of the Landtag. 

(2) Initiative proposals must be addressed to the Ministry 
of State and shall immediately be submitted by the latter to the 
Landtag with a statement of the Ministry's views. A complete 
draft of law must be the basis of an initiative proposal in cases 
(a) and (b). The initiative proposal shall be valid only if it is 
supported in case (b) by one-twentieth and in cases (a) and (c) 
by one-fifth of the qualified voters. 

(3) An initiative proposal shall not be admissible concerning 
questions of finance, tax laws, and salary regulations. 

(4) A popular referendum shall be held upon an initiative 
proposal and in such other cases as are provided for in the con- 
stitution; it shall be valid only if a majority of the qualified 
voters participate therein. 

(5) A popular referendum shall not be held if the Landtag 
has adopted the initiative proposal. 

(6) Proposals for amendment of the constitution, or for a 
dissolution of the Landtag sequire for acceptance the consent of 
a majority of all qualified voters. In other cases a simple ma- 
jority of the valid votes polled shall determine. The vote may 
be only by "y^s" or "no." 

(7) The procedure of popular initiative and popular referen- 
dum shall be regulated by law. 



PRUSSIA 219 

Art. 7. The Ministry of State shall be the supreme executive 
and directing authority of the state. 

Art. 8. (1) The judicial power shall be exercised by inde- 
pendent courts, subject only to law. 

(2) Judgments shall be rendered and executed in the name 
of the people. 

SECTION in 

The Landtag 

Art. 9. (1) The Landtag shall consist of deputies of the 
Prussian people. The deputies shall be representatives of 
the entire people and shall be elected by them according to 
the principles of proportional representation. 

(2) Qualified voters who are twenty -five years of age are eligi- 
ble for election. 

Art. 10. The deputies shall vote according to their inde- 
pendent convictions, with consideration only for the public 
welfare; they shall not be bound by orders or instructions. 

Art. 11. (1) Officials, employees, and workers of the state 
and of public corporations shall not be required to obtain leave 
to sit as deputies. 

(2) If they seek election to the Landtag, leave necessary to 
carry on their campaign shall be granted to them. 

(3) Payments of their salaries or wages shall be continued. 

(4) The above mentioned provisions shall not affect the 
rights conferred upon religious associations by Article 137 of the 
constitution of the Reich. 

Art. 12. (1) The validity of elections shall be verified by a 
tribunal to examine election returns constituted by the Landtag 
for this purpose. It shall also decide whether a deputy has lost 
his seat. 

(2) The tribunal to examine election returns shall consist of 
members of the Landtag, elected by the Landtag for the legisla- 
tive term, and, in addition, of m'embers of the Superior Ad- 
ministrative Court (Oberverwaltungsgericht) appointed by the 
presidency of this Court for the same period. 

(3) The tribunal to examine election returns shall pronounce 
judgment upon the basis of public and oral sittings by a quorum 
of three members of the Landtag and two judicial members. 

(4) Proceedings apart from the sittings of the tribunal to 
examine election returns shall be conducted by one of the 



220 NEW CONSTITUTIONS OF EUROPE 

members appointed from the Superior Administrative Court, 
who shall not belong to the above named tribunal to examine 
election returns. 

(5) Detailed regulations shall be prescribed by law. 

Art. 13. The Landtag shall be elected for a four-year term. 
A new election shall take place before the expiration of this 
period. 

Art. 14. (1) A dissolution of the Landtag may take place 
upon its own motion or by the action of a committee consisting 
of the Minister President and of the Presidents of the Landtag 
and of the Staatsrat, or by popular referendum. A popular 
referendum [on a question of dissolution] may also be had by 
resolution of the Staatsrat. 

(2) The dissolution of the Landtag upon its own motion shall 
require the consent of a majority of all the legal members. 

Art. 15. A new election must be held within sixty days after 
a dissolution of the Landtag. 

Art. 16. In case of a dissolution of the Landtag the legisla- 
tive term of the new Landtag shall begin on the day of the new 
election; in all other cases it shall begin with the expiration of 
the legislative term of the old Landtag. 

Art. 17. (1) The Landtag shall meet at the seat of the 
Ministry of State. 

(2) After each new election the Landtag shall assemble for 
its first session thirty days after the beginning of its legislative 
term, unless the Ministry of State convokes it at an earlier 
date. 

(3) Thereafter the Landtag shall meet on the second Tuesday 
in November of each year. The President of the Landtag must 
call an earlier meeting, if the Ministry of State or not less than 
one-fifth of the members of the Landtag demand it. 

(4) The Landtag shall determine the day of its adjournment 
and the day of its reassembly. 

Art. 18. The Landtag shall elect its own President, its Vice- 
Presidents, and its other officers. 

Art. 19. Between two sessions, as well as prior to the con- 
vening of a newly elected Landtag, the President and Vice- 
Presidents of the last session shall carry on its business. 

Art. 20. The President shall administer all the business af- 
fairs of the Landtag within the limits laid down by the state 
budget law and with the powers of a minister of state. It shall 
be his duty to supervise the work of all officials and employees 



PRUSSIA 221 

of the Landtag, to engage and dismiss all paid employees, and 
also, in conjunction with the other officers of the Landtag, to 
appoint and dismiss the civil service officials of the Landtag, 
He shall represent the state in all legal business and legal actions 
involved in his administration. He shall exercise powers of dis- 
cipline and police within the Landtag building. 

Art. 21. (1) There shall be a quorum of the Landtag when 
a majority of the legal membership are present. 

(2) The rules of procedure of the Landtag may permit excep- 
tions in the case of elections held by it. 

Art. 22. (1) Resolutions of the Landtag require a simple 
majority of votes. 

(2) Exceptions to this rule may be prescribed by law, and in 
the case of elections by the standing orders. 

Art. 23. Plenary sessions of the Landtag shall be public. 
Upon the request of fifty deputies, the Landtag may by a two- 
thirds majority vote exclude the public for the consideration of 
special matters on the calendar. Such request shall be dealt 
with in secret session. 

Art. 24. The Landtag and each of its committees may de- 
mand the presence of every minister. The ministers and their 
deputies shall have access to the sittings of the Landtag and of 
its committees. They may speak in the Landtag at any time 
regardless of the order of the day. They are subject to the rul- 
ings of the presiding officer. 

Art. 25. (1) The Landtag shall have the right to, and upon 
the proposal of one-fifth of its members must, set up committees 
of investigation. These committees shall in public sitting in- 
quire into such evidence as they or the petitioners consider 
necessary. The public may be excluded by a two-thirds ma- 
jority vote. The rules of procedure shall regulate their business 
and determine the number of their members. 

(2) The courts and administrative authorities are required 
to submit evidence requested by these committees; upon their 
demand the records of the authorities shall be laid before 
them. 

(3) The provisions of the criminal code shall apply, as far as 
may be, to the inquiries of committees and of the authorities as- 
sisting them; nevertheless, the secrecy of the postal, telegraph 
and telephone services shall remain unaffected. 

Art. 26. The Landtag shall appoint a standing committee 
for the protection of the rights of the representative body over 



222 NEW CONSTITUTIONS OF EUROPE 

against the Ministry of State, for the period between sessions, 
and between the expiration of a legislative term or a dissolution 
of the Landtag and the convening of a new Landtag. This 
committee shall have the powers of a committee of investiga- 
tion. Its composition shall be regulated by the rules of pro- 
cedure. 

Art. 27. The Landtag may transmit memorials, addressed 
to it, to the Ministry of State and may demand from the Minis- 
try information concerning petitions and remonstrances that 
are filed with it. 

Art. 28. (1) Members of the Landtag shall have the right of 
free transportation on all German railways included within the 
former Prussian-Hessian railroad system, as well as the right to 
compensation. In addition to this the President [of the Land- 
tag] shall receive an allowance for official expenses during his 
term of office. 

(2) Refusal of compensation shall not be permitted. 

(3) Detailed regulations shall be prescribed by law. 

Art. 29. (1) The Landtag shall have legislative authority 
within the limits prescribed by the constitution; it shall approve 
the budget of revenues and expenditures; it shall determine the 
principles according to which state affairs shall be administered, 
and shall supervise their execution. State treaties {Staats- 
vertrdge) require the consent of the Landtag if such treaties re- 
late to matters within the scope of its legislative power. 

(2) The Landtag shall determine its own rules of procedure 
within the limits of this constitution. 

Art. 30. A resolution by the Landtag to amend the constitu- 
tion shall be valid only if at least two-thirds of the legal members 
are present and at least two-thirds of those present consent. 

section iv 
The Staatsrat 

Art. 31. A Staatsrat shall be established to represent the 
provinces in the legislation and administration of the state. 

Art. 32. (1) The Staatsrat shall be composed of representa- 
tives of the provinces. The following are recognized as prov- 
inces: East Prussia, Brandenburg, City of Berlin, Pomerania, 
the Posen- West-Prussian Mark, Lower Silesia, Upper Silesia,^ 

'See Article 167 of the constitution of the German Reich, and note; see also 
above, pp. 65, 66. 



PRUSSIA 223 

Saxony, Schleswig-Holstein, Hanover, Westphalia, the Rhine 
Province, and Hessen-Nassau. 

(2) For each 500,000 inhabitants a province shall be entitled 
to one representative, but each province shall have at least three 
representatives in the Staatsrat. A fraction of more than 
250,000 inhabitants shall be counted as equal to 500,000 in- 
habitants. 

(3) In addition, the HohenzoUern Territories shall have one 
representative. 

(4) The number of representatives from the provinces shall 
be re-determined by the Ministry of State after each general 
census and after any alterations of the territory of the provinces. 

Art. 33. (1) The members of the Staatsrat and their depu- 
ties shall be elected by the provincial diets (in Berlin by the 
municipal council, in the HohenzoUern Territories and in 
the Posen- West-Prussian Mark by the communal diets). In 
the HohenzoUern Territories election shall be by majority vote; 
in all other cases according to the principles of proportional 
representation. All qualified voters over twenty-five years of 
age who have been domiciled in the province for one year shall 
be eligible for election. 

(2) No person may be a member of the Landtag and the 
Staatsrat at the same time. Deputies to the Landtag must re- 
sign therefrom upon acceptance of election to the Staatsrat. 
Members of the Staatsrat must resign therefrom upon accep- 
tance of election to the Landtag. 

(3) Members of the Staatsrat shall exercise the functions of 
their office until their successors have qualified. 

(4) A new election of members of the Staatsrat shall take 
place immediately after a new election of any provincial diet 
(municipal council, communal diet). 

Art. 34. The members of the Staatsrat shall vote according 
to their independent convictions, with consideration only for the 
public welfare; they shall not be bound by orders or instructions. 

Art. 35. No member of the Staatsrat may at any time be 
subjected to judicial or administrative prosecution, or be other- 
wise held responsible outside of the sittings by reason of his vote 
or by reason of any utterances made in his official capacity. 

Art. 36. (1) Officials, employees, and workers of the state 
and of public corporations shall not require leave in order to 
exercise their functions as members of the Staatsrat. 

(2) Payments of their salaries and wages shall be continued. 



224 NEW CONSTITUTIONS OF EUROPE 

Art. 37. The Staatsrat shall elect its presiding officer and its 
secretaries and their deputies, and shall regulate its order of 
business by rules of procedure. 

Art. 38. (1) The Staatsrat shall be convened for the first 
time by the Ministry of State. Thereafter it shall convene upon 
the call of its presiding officer as often as its business requires. 
The presiding officer shall convene the Staatsrat if one-fifth of 
its members or all the representatives of one province or the 
Ministry of State demand it. 

(2) There shall be a quorum of the Staatsrat when a majority 
of its legal members are present. In case of voting a simple 
majority of the votes cast shall decide. 

(3) For resolutions of the Staatsrat relating to Article 14, and 
Article 42, Paragraph 1, there must be a recorded vote. 

Art. 39. (1) Plenary sessions of the Staatsrat shall be public. 
The Staatsrat may by a two-thirds majority vote exclude the 
public for the consideration of special matters on the calendar. 
A request to exclude the public shall be dealt with in secret 
session. 

(2) The provisions of Article 24 shall apply. 

Art. 40. (1) The Staatsrat shall be kept informed by the 
Ministry of State with regard to the conduct of public business. 

(2) Before their introduction bills must be submitted by the 
Ministry of State to the Staatsrat for examination and criticism. 
The Staatsrat may communicate its dissenting opinion in writing 
to the Landtag. 

(3) The Staatsrat may submit bills to the Landtag through 
the Ministry of State. 

(4) The Ministry of State must consult the Staatsrat or a 
competent committee thereof, before issuing decrees for the 
execution of laws of the Reich and of the state or before issuing 
general administrative ordinances. 

Art. 41. The members of the Staatsrat shall receive such 
compensation for travel and official expenses as may be fixed by 
law. Refusal thereof shall not be permitted. 

Art. 42. (1) Laws enacted by the Landtag shall be subject 
to veto by the Staatsrat. 

(2) The veto must be communicated to the Ministry of State 
within two weeks after the final vote in the Landtag and within 
two additional weeks must be supported by reasons. 

(3) In case of veto the law must be presented to the Landtag 
for reconsideration. If the Landtag reaffirms its original resolu- 



PRUSSIA 225 

tion by a two-thirds majority vote, this resolution shall be final. 
If, however, in the reconsideration by the Landtag only a 
simple majority vote is obtained for the original resolution, the 
resolution shall be invalid, unless it be approved by a popular 
referendum initiated by the Landtag. 

(4) The approval of the Staatsrat is necessary if the Landtag 
desires to vote expenditures which are in excess of the amounts 
proposed or approved by the Ministry of State. If the Staatsrat 
refuses consent, the resolution of the Landtag shall be valid 
only in so far as it agrees with the proposal or approval of the 
Ministry of State. A popular referendum shall not be applicable 
in such circumstances. 

Art. 43. Detailed regulations shall be prescribed by law. 

SECTION v 

The Ministry of State 

Art. 44. The Ministry of State shall consist of the Minister 
President and the ministers of state. 

Art. 45. The Landtag shall elect the Minister President 
without debate. The Minister President shall appoint the other 
ministers of state. 

Art. 46. The Minister President shall determine the general 
principles of governmental policy and shall be responsible for 
them to the Landtag. Within these principles each minister of 
state shall independently carry on the branch of administration 
entrusted to him, and shall himself be responsible to the Land- 
tag. 

Art. 47. (1) The Minister President shall be chairman of 
the Ministry of State and shall conduct its business. 

(2) The Ministry of State shall determine the jurisdiction of 
each minister of state in so far as this has not been regulated 
by legislative enactment. Such determinations shall be im- 
mediately submitted to the Landtag and must be altered or re- 
pealed at the request of the Landtag. 

(3) Differences of opinion in respect to matters pertaining 
to the scope of the authority of the several ministers of state 
must be submitted to the Ministry of State for consideration and 
decision. 

Art. 48. The ministers of state shall be entitled to re- 
muneration. Pensions and provision for dependent survivors 
shall be determined by special law. 



226 NEW CONSTITUTIONS OF EUROPE 

Art. 49. The Ministry of State shall represent the state in 
external affairs. 

Art. 50. The Ministry of State shall pass on bills which shall 
be presented to the Landtag. 

Art. 51. The Ministry of State shall issue ordinances for the 
execution of the laws in so far as this duty is not imposed upon 
individual ministers of state by law. 

Art. 52. The Ministry of State shall appoint all officials who 
are directly under its jurisdiction. 

Art. 53. The Ministry of State shall appoint delegates to 
the Reichsrat except when they are appointed by the provincial 
administrations as provided for by Article 63 of the constitution 
of the Reich. 

Art. 54. (1) The Ministry of State shall exercise the pardon- 
ing power in the name of the people. 

(2) In the case of a minister who has been condemned for 
malfeasance in office this power may be exercised only at the 
instance of the Landtag. 

(3) General amnesties or discontinuance of prosecutions in 
special classes of criminal cases, or in a single pending criminal 
case, may take place only upon the basis of a law. 

Art. 55. If the maintenance of public safety or the meeting 
of an unusual emergency urgently requires it, the Ministry of 
State may, when the Landtag is not in session, in conjunction 
with the standing committee provided for in Article 26, issue 
ordinances not in conffict with this constitution, which shall 
have the force of laws. Such ordinances must be submitted to 
the Landtag for approval at its next session. If approval is 
refused, the ordinance must be immediately declared void by 
publication in the Law Gazette. 

Art. 56. The ministers of state, upon their induction into 
office, shall take an oath to perform their duties impartially and 
for the public welfare, and in accordance with the constitution 
and the laws. 

Art. 57. (1) The Ministry of State as such and each individ- 
ual minister of state must possess, in order to retain office, the 
confidence of the people, which is expressed through the Land- 
tag. The Landtag may withdraw its confidence in the Ministry 
of State or in an individual state minister by express resolution. 
Such resolution shall not be valid if a popular referendum to 
dissolve the Landtag is legally invoked. 



PRUSSIA 227 

(2) A petition which initiates such a resolution must be signed 
by at least thirty deputies. 

(3) Such petition shall be voted upon no earlier than the 
second day after its consideration. It must be acted upon 
within fourteen days after its introduction. 

(4) A recorded vote must be taken on a question of lack of 
confidence. 

(5) A resolution of lack of confidence shall be valid only if 
approval is given by at least one-half of the total membership 
of the Landtag at the time. 

(6) If the resolution is passed, the ministers affected thereby 
must resign, but the Minister President must resign only if he 
does not avail himself of his privilege of requesting a dissolution 
of the Landtag or if such request is denied by the committee.^ 

(7) These provisions shall apply also in case the Ministry 
of State as a whole or an individual minister demands a vote of 
confidence. 

Art. 58. (1) The Landtag shall have the right to bring an 
action before the State Supreme Court (Staatsgerichtshof) 
against any minister for having wilfully violated the constitu- 
tion or the laws. The bill to initiate such an action must be 
signed by at least one hundred members of the Landtag and 
shall require the consent of such a majority as has been desig- 
nated for changes in the constitution. 

(2) The composition of the State Supreme Court, its proce- 
dure, and the decisions to be rendered by it shall be regulated 
by law. 

Art. 59. (1) Any state minister may resign his office at any 
time. 

(2) In the event of a resignation of the entire Ministry of 
State, the resigning ministers shall carry on current business 
until it is taken over by the new ministers. 

section vi 
Legislation 

Art. 60. The Ministry of State shall publish in the Prussian 
Law Gazette laws constitutionally enacted and state treaties 
approved by the Landtag. 

Art. 6L (1) A law shall be binding when it has been con- 
stitutionally enacted and has been published by the Ministry of 

iSee Article 14, Clause 1. 



228 NEW CONSTITUTIONS OF EUROPE 

State in the form prescribed. The pubHcation shall indicate 
whether the law was enacted by the Landtag or by a popular 
referendum. Article 13 of the constitution of the Reich shall 
not be affected hereby. 

(2) If the law does not otherwise specify it shall go into effect 
on the fourteenth day after its publication in the Law Gazette. 

(3) The laws must be published within a month. 

Art. 62. Bills which are rejected by the Landtag shall not 
be introduced again during the session, unless a valid popular 
initiative so demands. 

section vii 

Finance 

Art. 63. (1) The Landtag shall vote the necessary current 
funds to meet the needs of the state. 

(2) All revenues and appropriations of the state must for 
each fiscal year be estimated and incorporated in the budget. 
The budget must be adopted by law before the beginning of the 
fiscal year. 

(3) The appropriations shall as a rule be voted for one year; 
in special cases they may be voted for a longer period. Except 
in such cases the budget law shall not contain provisions which 
run beyond the current fiscal year or which do not relate to the 
revenues and appropriations of the state or to their administra- 
tion. 

Art. 64. If before the end of a fiscal year the budget for the 
following year has not been determined by law, the Ministry of 
State shall be empowered until a budget goes into effect: 

(a) to make all expenditures which are necessary in order : 
(i) to maintain legally existing institutions and to exe- 
cute legally adopted measures, 

(ii) to fulfill the lawful obligations of the state, 
(iii) to continue building operations, contracts, and other 
undertakings for which appropriations have al- 
ready been granted in the budget of a previous 
year, as well as to continue under the same 
conditions subsidies for building operations, con- 
tracts, and other undertakings. 

(b) to issue, for periods of three months, treasury notes 

to the amount of one-fourth of the total of the 
previous budget, in so far as revenues derived by 



PRUSSIA 229 

special laws from taxes, duties, and other sources 
do not cover the expenditures under clause (a). 

Art, 65. Funds may be procured upon credit only for extraor- 
dinary needs and as a rule only for expenditures for produc- 
tive works. Such a procurement as well as the assumption of 
any liability by the state may be undertaken only by authority 
of a law. 

Art. 66. Resolutions of the Landtag which authorize addi- 
tional expenditures apart from the budget or which will result 
in such additional expenditure in the future must at the same 
time specify how such additional expenditures shall be met. 

Art. 67. (1) Expenditures in excess of amounts granted by, 
or not included in, the budget must be approved by the Landtag 
within the next fiscal year. 

(2) Expenditures in excess of amounts granted by, or not 
included in, the budget require the approval of the Minister of 
Finance. Such consent shall be given only in case of an un- 
foreseen and unavoidable emergency. 

Art. 68. The budget accounts shall be examined and ap- 
proved by the Superior Board of Audit. The general budget 
accounts of each year and a schedule of state debts shall be sub- 
mitted to the Landtag with a statement from the Superior Board 
of Audit, which shall operate to discharge the Minister of Fi- 
nance from responsibility. 

Art. 69, Notwithstanding the provisions of Articles 63-68 
the financial management of revenue-producing enterprises of 
the state may be regulated by law. 



section vii 
Local Autonomy 

Art. 70. Municipalities and groups of municipalities have 
the right of local autonomy in their affairs under the supervision 
of the state as may be determined by law. 

Art. 71. (1) The state shall be divided into provinces. 

(2) the division of the provinces into circles, cities, rural 
municipalities, and other groups of municipalities as well as 
the constitution, rights, and duties thereof shall be regulated 
by law. 

Art. 72. (1) In accordance with the provisions of law and 
through their own agencies : 



230 NEW CONSTITUTIONS OF EUROPE 

(a) the provinces shall administer independently their 

own affairs, whether imposed upon them by law or 
voluntarily assumed by them (matters of local 
autonomy) ; 

(b) the provinces shall, as executive agencies of the state, 

administer those state affairs which have been de- 
volved upon them (delegated matters). 
(2) The law may extend the sphere of matters of local auton- 
omy assigned to the new provinces and may devolve delegated 
matters upon them. 

Art. 73. The provincial diets may, by provincial legislation, 
permit, in addition to German, the use of another language : 

(a) as a language of instruction for foreign language parts 

of the population, provided the protection of German 
minorities is safeguarded; 

(b) as another official language in multiple language dis- 

tricts. 

Art. 74. The fundamental principles applying to elections 
to the popular representative bodies shall apply also to elec- 
tions to provincial, circle, and municipal representative bodies. 
Nevertheless, in the case of elections to municipal repre- 
sentative bodies, the election qualification may by law be 
made to depend upon a specified period of residence in the mu- 
nicipality. 

Art. 75. (1) Officials, employees, and workers of the state 
and of public corporations shall not require leave in order to 
exercise their functions as members of a provincial, circle, or 
municipal representative body. 

(2) Payment of their salaries and wages shall be continued. 



section ix 
Religious Associations 

Art. 76. (1) Any person who desires to withdraw from a 
public corporate religious association exercising civic functions 
shall make a declaration of withdrawal before a court or shall 
file a personal declaration duly sworn to. The tax liability of 
the person who withdraws shall not be extinguished before the 
end of the tax year in which the declaration of withdrawal is 
made. 

(2) Detailed regulations shall be prescribed by law. 



PRUSSIA 231 

section x 
State Officials 

Art. 77. (1) Any citizen of the Reich, without regard to 
sex or previous occupation, may, if he possesses the qualifica- 
tion for the office, be appointed a state official. 

(2) The necessary qualification for specific offices shall be 
prescribed by law. 

Art. 78. Every state official must take an oath that he will 
discharge the duties of the office entrusted to him impartially 
and according to his best knowledge and ability, and that he 
will conscientiously uphold the constitution. 

Art. 79. (1) State officials may not, against their will, be 
temporarily or permanently retired upon pension, or transferred 
to another position with a lower salary except under conditions 
and according to forms prescribed by law, 

(2) Resort to legal process shall be permitted for the prosecu- 
tion of the lawful salary claims of state officials and of their 
dependent survivors. 

Art. 80. In addition the law of officers shall be determined 
by legislation in accordance with the law of the Reich. 

section xi 
Transitional and Final Provisions 

Art. 81. (1) The constitution of January 31, 1850, and the 
law of March 20, 1919, relating to the provisional organization 
of public powers in Prussia are hereby repealed. 

(2) All other existing laws and ordinances not in conflict with 
the provisions of this constitution shall remain in force. 

Art. 82. (1) The powers which according to previous laws, 
ordinances, and treaties were vested in the King are hereby 
transferred to the Ministry of State. 

(2) The rights which pertained to the King as temporal head 
of the Established Church of Prussia shall be exercised by three 
ministers of the evangelical faith appointed by the Ministry of 
State, in so far as the evangelical churches have not by ecclesias- 
tical laws, approved by state law, transferred such rights to 
church authorities. 

(3) All other rights hitherto exercised by the King as against 
religious associations shall be regulated anew in accordance with 
Article 137 of the constitution of the Reich. 



232 NEW CONSTITUTIONS OF EUROPE 

Art. 83, At the instance of any interested party an existing 
patronage shall be annulled as soon as lawful financial obliga- 
tions shall have been cancelled. The procedure and the princi- 
ples for the cancellation shall be prescribed by law. 

Art. 84. Existing taxes and duties shall continue to be levied 
until altered or repealed. 

Art. 85. Until the convening of the first Landtag the Con- 
stituent Assembly shall function as the Landtag. 

Art. 86. Until the legislation provided for in Article 72 goes 
into effect, the Oberprasidents, the Regierungsprasidents, and the 
presiding officers of the provincial education council and of 
the bureau of agriculture shall be appointed in agreement with 
the provincial committee. 

Art. 87. Constitutional conflicts shall be decided by the 
State Supreme Court. 

Art. 88. This constitution shall be in force from the date 
of its publication except for Articles 31-43, 72, and 86. These 
Articles shall not be in force until the provincial diets shall have 
been newly elected as provided by Article 74, 

Berlin, November 30, 1920 

The Prussian Ministry of State 

Braun FisHBECK Haenisch AM Zehnhoff Oeser 

Stegerwald Severing Lxjdemann 



CHAPTER XI 
BAVARIA, WURTTEMBERG, AND BADEN^ 

After the revolution of November, 1918, the states 
that had been members of the German Empire were 
faced with the problem of adopting new constitutions. In 
this matter, however, they could not proceed according to 
their own free will, for in Article 17 of the constitution of 
the Reich of August 11, 1919, certain basic provisions 
were laid down to which the constitutions of each of the 
federal states had to conform. It was, for example, neces- 
sary that the Government of each one of the states should 
at all times possess the confidence of the popular repre- 
sentative body. Furthermore, the states were prevailed 
upon to give up the idea of electing presidents, and it was 
also suggested that they should constitute their executives 
on the Swiss pattern. Their problem, therefore, was a new 
one; they had to combine a parliamentary system and a 
collegial or directorial system. The question arises whether 
a fusion of these two systems is possible unless one of 
them loses its essential characteristics. This question can 
best be answered by considering the solutions that are at- 
tempted by the constitutions of the different free states. 



The Reich 
and the 
State con- 
stitutions 



The Government of Bavaria Accordestg to the 
Constitution of August 14, 1919 

Eight days before the elections to the constituent as- 
sembly on January 4, 1919, the provisional government 

iThis description of the governments of the German states is condensed from 
Adelheid Meuschel, "Die Regierungsbildung im Deutschen Reich und seinen 
Landern nach den Vorschriften der gegenwartig giiltigen Verfassimgen," Archiv 
des dfendichen Rechts, Vol. XLI, pp. 32ff. (Tubingen, 1921). 

233 



Bavarian 

constituent 

assembly 



234 NEW CONSTITUTIONS OF EUROPE 



Provisional 

fundamental 

law 



Position of 
Ministry 
under pro- 
visional law 



issued a basic law which was to serve as a guide for the 
assembly when it proceeded to the drafting of a new con- 
stitution.^ This law, however, was vague on the question 
of the form of the government. In case of conflict between 
the Landtag and the Government, it was the idea that 
the people themselves should decide. The probable pur- 
pose of this provision was to allow the Government to 
have the support of the people on which to fall back in 
case of dispute with the Landtag. This provision, how- 
ever, was not adopted. 

The first meeting of the constituent assembly was in- 
terrupted by a popular outbreak on February 21. When 
it met again in March, 1919, a fundamental state law was 
adopted, which provided in Section 8 that the highest 
executive authority should be exercised by the entire 
Ministry. The presiding officer of the Ministry was to 
be elected by a majority vote of the assembly. The other 
ministers were to be chosen by him. Since it was neces- 
sary for the ministers to have the confidence of the assem- 
bly at all times, it was also necessary for the presiding 
officer to undertake the selection of his colleagues in con- 
sultation with the parties in the assembly. 

It is therefore clear that the parties of the assembly 
were to exercise the controlling influence in the formation 
of the Government. Section 7 of the temporary funda- 
mental state law provided that the final decision with 
regard to the formation of the Government should lie 
with the voting population, for the IVIinistry was given 
the right, in case of a resolution of the assembly that was 
contrary to the fundamental state law, to cause a referen- 
dum to be had with regard to the resolution. This refer- 
endum should at the same time decide as to the continued 



lOn October 30, 1919, the Free State of Coburg decided by an overwhelming 
majority to join the Free State of Bavaria and on March 11, 1920, the Bavarian 
Landtag unanimously adopted a bill for the union of the two States. See above, 
p. 67. Coburg had three representatives in the constituent assembly that 
drafted the Bavarian constitution. 



BAVARIA, WURTTEMBERG, AND BADEN 235 



existence of the Ministry. This provision, however, did 
not secure a balance between the popular representative 
body and the Government itself, because the decision of 
the people could be had only in certain definitely pre- 
scribed cases, namely, if a resolution of the Landtag was 
in violation of the fundamental state law. The continued 
existence of the Ministry was in all other cases subject to 
the will of the assembly, which had constituted it and 
which could cause it to resign in case of a vote of lack of 
confidence. Accordingly, the temporary fundamental 
state law had not created a parliamentary system in its 
true form. The solution of this problem was reserved for 
the constitution. 

A draft of the final constitution was presented to the 
assembly by the Government on May 28, 1919. It was 
referred to a committee which changed many details, but 
which did not touch the fundamentals of the draft. The 
final draft presented by the committee was accepted by 
the assembly without change and was promulgated on 
August 14, 1919, three days after the promulgation of the 
constitution of the Reich. 

Section 58 of the constitution contains the provisions 
applying to the formation of the Government. The Min- 
istry is appointed by the Landtag and thus derives its 
power from the representatives of the people. As in the 
provisional constitution, the Minister President is chosen 
by the Landtag on the basis of a majority vote. He in 
turn recommends a list of the other ministers to the Land- 
tag and they are appointed by him with its consent. In 
case of a ministerial crisis the various parties of the Land- 
tag hold a conference in order to determine which parties 
shall combine to form a parliamentary majority, and in 
order to nominate a Minister President and the personnel 
of the new ministry on the basis of the relative strength 
of the parties. In other words, the constitution provides 



The consti- 
tution of 
1919 



The 

Ministry 
under the 
final 
constitution 



236 NEW CONSTITUTIONS OF EUROPE 



Modes of 
dissolution 



The 

Landtag 
dominates 



a definite machinery for the creation of coalition minis- 
tries, which subsequently are formally ratified by the 
Landtag. 

Article 31 empowers the Landtag to dissolve itself. It 
seems improbable that the Landtag will use this method 
of appealing to the people in case of dispute with the 
Government, since it has express authority to substitute 
a new government for one with which it does not agree. 

The final constitution does not permit the Ministry to 
appeal to the people for a decision by popular referendum 
in case of dispute with the Landtag. Section 40 of the 
first draft had provided for such action, but this privilege 
of the Government was later eliminated. The Landtag 
may dissolve itself, or it may be dissolved if one-fifth of 
the qualified voters so demand. This demand must be 
made on the basis of a vote in which at least one-half of 
the qualified voters have taken part, and at least two- 
thirds of those who vote must be in favor of the dissolu- 
tion. It is apparent that the power that has been placed 
in the hands of the people can be used only in very unusual 
cases. In truth, the Government itself is unable, under 
the new constitution, to defend its stand on any particular 
question. The most important factor is the Landtag, and 
on careful analysis one sees that the people themselves 
play only a minor part in the direction of the policies of 
the Government except in the matter of electing the 
Landtag. 



Wiirttem- 
berg 

constituent 
assembly 



The Government of Wurttemberg According to the 
Constitution of September 25, 1919 

The revolutionary government of Wurttemberg caused 
the election of a constituent assembly to be held on Jan- 
uary 12, 1919. On April 26, 1919, a constitution was 
adopted by this assembly, but the promulgation of the 
constitution of the Reich in August made many changes 



BAVARIA, WURTTEMBERG, AND BADEN 237 

necessary. On September 25, 1919, however, the final 
draft was approved and adopted. On the whole, the pro- 
visions relating to the formation of the Government are 
the same in this constitution as in the Bavarian constitu- 
tion. 

The constitution of Wiirttemberg expressly provides 
(Article 27) that a new ministry shall be formed after each 
election of a Landtag. This provision would appear to 
be wholly imnecessary, or at best purely a formal mat- 
ter, since the returns of the elections will automatically 
fix the status of the former ministry and its ability to 
remain in office. The probable intention of the article 
was to give an appearance of direct influence on the 
part of the voting population in the formation of the 
Ministry. 

In Wurttemberg the Government has the right to in- Referendum 
voke a popular referendum on the dissolution of the Land- °^ dissolu- 
tag (Article 16). "While they may call on the people to 
act as judges in case of dispute with the Landtag, the 
Ministry will scarcely take this step, for, if it be as- 
sumed that they have properly estimated the state of 
public opinion, and if the popular referendum decides 
for the dissolution of the Landtag, the new elections 
will bring a majority into the Landtag which will certainly 
differ from that majority which put the Government into 
office. 

It is true, however, that the weapon that has been 
placed in the hands of the people to control the Landtag 
is worked out on a better plan than it is in Bavaria. One- 
fifth of the qualified voters may, according to this con- 
stitution, demand that a referendum be had with regard 
to the dissolution of the Landtag. But only a majority 
of those voting need be in favor of a dissolution. The 
result is that this constitution succeeds somewhat better 
in bringing about a balance between the authority of the 
Landtag and that of the Ministry. 



238 NEW CONSTITUTIONS OF EUROPE 



The Baden 

coUegial 

executive 



Control by 
Landtag 



The Government of Baden According to the Con- 
stitution OF March 21, 1919 

It may be said that the changes that took place in 
Baden after the revolution were probably carried into 
effect with greater dispatch and with less opposition than 
in any other state of the Reich. The constitutional 
assembly met for the purpose of adopting a constitution 
in January, 1919; the draft was presented in March of the 
same year and was accepted and promulgated as early as 
April 13, 1919. 

The provisions of the constitution of this state vary 
markedly from those of the constitutions of the states 
mentioned previously. Especially is this true of the 
formation of the Government as provided in Articles 52 ff. 
The constitution of Baden attempts, in so far as is possible, 
to follow the provisions laid down in the constitution of 
Switzerland. The parliamentary system that is imposed 
upon the states by Article 17 of the constitution of the 
Reich is followed in Baden only in so far as is absolutely 
necessary to conform with this national requirement. 

The Ministry is a collegial executive. The ministers, 
seven in number according to a law of April 2, 1919, are 
elected in open meeting of the Landtag for their individ- 
ual offices. Thereafter the Landtag elects the Minister 
President from among the ministers. 

In the constitution of Baden the Landtag is vested with 
power to recall the entire Ministry or any member of it 
by a majority vote. A vote of lack of confidence in the 
Ministry is therefore not necessary to force the entire 
Ministry or members of it out of office. Manifestly this 
provision is only a change in form from the provisions 
mentioned in the previous constitutions, since a Ministry 
in order to remain in office must have the confidence of the 
Landtag which can at all times either vote it down or 
bring a direct vote of expulsion. Contrary to the custom 



BAVARIA, WURTTEMBERG, AND BADEN 239 



in Switzerland, each member of the Ministry in Baden 
must be affihated with some one of the parties represented 
in the Landtag; here also the formation of a Ministry is 
midertaken on the basis of the relative strength of the 
parties. 

The formation of the Government may be influenced by 
the people every four years at the time of the general 
elections. Apart from this, provision is made that 80,000 
voters may at any time demand a referendum upon the 
question of a dissolution of the Landtag. This must be 
carried out within one month; and if a majority of those 
voting express themselves in favor of dissolution it must 
be ordered by the Ministry. It is to be observed that 
80,000 electors constitute only one-fifteenth of those 
eligible to vote. The fact that such a small number is 
necessary to initiate a demand for a popular referendum 
is noteworthy, because it gives the opposition parties a 
much better chance to carry out a threat of overthrowing 
the Government than in Bavaria and Wurttemberg where 
one-fifth of the qualified voters must initiate the demand 
for a referendum. The constitution as finally adopted 
does not give the Landtag the right to dissolve itself, nor 
does it permit the Ministry to dissolve it, the idea being 
that the IVIinistry is at all times subject to the Landtag. 
In other words, the Landtag, as an organ of popular will, 
is the central directing body; it elects and controls the 
IVIinistry. The Government is intentionally subordi- 
nated to the popular representative body. At best the 
people can be considered as factors only in the gen- 
eral elections after each legislative term; for at other 
times their potential power will rarely be brought into 
play. 



Control by 
voters over 
dissolution 



Importance 
of Landtag 



It is, of course, impossible at this time to venture any Conclusions 
detailed criticisms of the provisions of the constitutions of impossible 
the German states. The new governments have been in 



240 NEW CONSTITUTIONS OF EUROPE 

existence for a short time only. The formation of the 
Ministries and their responsibihty to the Landtags raise 
what are probably the most important and the most in- 
teresting questions in connection with the constitutions; 
but the wisdom of the adjustments that have been made 
can be tested only by experience. 



CHAPTER XII 
AUSTRIA 

1. HISTORICAL NOTE 

It would require pages of historical recital to describe 
with approximate accuracy the origin of the political en- 
tity that was known from 1867 to 1918 as the Austro- 
Hungarian Monarchy. Suffice it to say that the period 
from 1859 to 1867 marked an epoch of importance in the 
politico-legal relations of the group of twenty-odd political 
units which, united under the absolutism of the Hapsburg 
dynasty, were generically known as the Austrian Empire. 
Of these political units, or provinces, Hungary was by far 
the largest; and it was Hungary's claim that the interests 
of Croatia, Slavonia, and Transylvania were, as against 
most of the other provinces, closely tied up with her own 
interests. Over against these Hungarian interests and 
aspirations were set those of a group of German controlled 
provinces in the west. The Italians in the southwest, 
the Czechs in Bohemia and Moravia to the northwest, 
and the Poles and Ruthenes in Galicia and Bukowina to 
the northeast, were by no means enamored of close union 
with the Germans; but they were also not drawn to the 
Hungarians. 

When it became no longer possible to stem the tide of 
demand for an abolition of absolutism in favor of a consti- 
tutional system, the issue was squarely presented whether 
there should be a centralized system, which the Germans 
advocated; or a federal system, which would have met 
the wishes of the minor nationalities and especially of 
the Czechs and Poles; or a dual system, which the Hun- 

241 



Austrian 
affairs, 
1859 to 1867 



Centraliza- 
tion, 

dualism, or 
federalism 



242 NEW CONSTITUTIONS OF EUROPE 



The 

Diploma of 
1860 



garians demanded, and which the Germans on the whole 
preferred to federalism. The steps which led up to the 
triumph of dualism in 1867 may be briefly recounted. 

In March, 1860, the Emperor called the first legislative 
assembly of the whole Empire. This assembly was in 
fact merely the old so-called Reichsrat of permanent 
oflScials, reinforced by certain life members and certain 
appointees of the Emperor. It was almost exclusively 
aristocratic. In October, 1860, an imperial Diploma was 
issued which was said to be "completed" but was actually 
superseded in February, 1861, by an imperial Patent estab- 
lishing in effect a centralized form of government. 



The Patent The Patent instituted a Reichsrath, composed of two Cham- 

of 1861 bers. In the first, the Chamber of Lords, were represented, 

by right of succession or nomination, those who, by birth, posi- 
tion, or merit, belonged to the aristocracy. In the second, the 
Chamber of Deputies, sat 343 representatives, who were elected 
by the provincial Diets on the system of the representation of 
interests. Like the members of the Diet itself, they were divided 
into four CurioB, namely, the great landowners, the Chambers 
of Commerce, the cities, and the rural districts. In each Curia 
a certain payment in taxes was the qualification for the fran- 
chise. The value of the vote varied considerably in the several 
Curioe and provinces: some deputies were elected by two or 
three votes only, others by between ten and twelve thousand. 
In every case, the German provinces or districts were favored 
and the Slavs treated unfairly. Under the cloak of principle, 
all principle was ignored; for the sole object was to set up a 
Reichsrath which would not hamper the Government. More- 
over, both in the Diets and in the Chamber of Deputies, every- 
thing was calculated to ensure a permanent majority of the 
great landowners, on whose unflinching devotion the Govern- 
ment reckoned in all circumstances,^ 



Importance 
of the 
Patent 



This constitution, or Patent, was never in full operation, 
for Hungary refused to send representatives to the Reichs- 
rat, and after a brief trial the Czechs withdrew. The 
Patent was suspended in September, 1865. But the char- 



K'ambridge Modem History, XII, pp. 178, 179 (London, 1910). 



AUSTRIA 243 

acter of the parliament or Reichsrat which it estabhshed 
is of importance, for it was the Austrian "rump" of 
this Reichsrat which in 1867 agreed to the dualistic com- 
promise with Hungary and enacted the constitution under 
which the Austrian part of the Dual Monarchy was gov- 
erned down to 1918. 

In the year 1866 occurred the seven weeks' war between 
Austria and Prussia. The swift and decisive defeat of 
Austria not only made possible the creation of the German 
Empire but also made it inevitable that Hungary would 
successfully assert a large measure of autonomy in a new 
constitutional system for the agglomeration of states 
known as Austria. Before the signing of the treaty of 
peace on August 20, 1866, negotiations were got under 
way between Deak and Count Andrassy, the Magyar 
leaders in Hungary, and Baron Beust, the Chancellor and 
Minister President of Austria. 

The Hungarian scheme for dividing the Empire into The 
two sections, under German and Magyar leadership re- Hungarian 
spectively, had been completed just before the outbreak dualism 
of hostilities. A commission of the Hungarian diet had 
perfected a proposal of organization for the conduct of 
affairs common to the two sections. This was the Hun- 
garian program; and on the part of Hungary ratification 
by her own diet was sufficient to give the proposal legality. 
But there was no such unity of program among the 
numerous non-Hungarian provinces, and there was no 
single legislative body to act in their behalf. There were 
those who urged that a special Reichsrat be called, con- 
sisting of representatives elected by all of the diets (in- 
cluding that of Hungary) without distinction of curice. 
But it was certain that such an assembly would amend 
the Hungarian scheme in the direction of federalism. 
In the end the Emperor, by a Patent of January 1, 1867, 
ordered new elections of diets in a designated list of prov- 
inces and convoked a Reichsrat the lower house of which 



244 NEW CONSTITUTIONS OF EUROPE 



The 

"smaller" 
Reichsrat 



The 

Ausgleich 
of 1867 



Character 
of the 
Dual Union 



consisted of members chosen by these provincial diets in 
accordance with the iUiberal provisions of the constitution 
of 1861. Hungary, Croatia, Slavonia, and Transylvania 
were not called upon to send representatives to this 
Reichsrat.^ The effect of this patent was to insure the 
success of dualism; for it gave legal recognition to a division 
of the Empire into two segments. The non-Hungarian 
segment was to be represented in this so-called "smaller" 
Reichsrat. By dissolving provincial diets and manipulat- 
ing elections, this body was made safely German and there- 
fore anti-federalist. The Hungarian part of the new 
Austro-Hungarian Monarchy naturally continued to be 
known under the ancient title of the Kingdom of Hungary. 
In popular usage both in and out of the Dual Monarchy 
the non-Hungarian part came to be called the Austrian 
Empire.^ 

On IMay 29, 1867, the Ausgleich, or Compromise, founded 
upon the proposal of Hungary, was formally ratified by the 
Hungarian diet; but the Austrian "smaller" Reichsrat, 
which had just assembled, proposed certain amend- 
ments. Thereupon deputations of fifteen members from 
each of the parliaments met as a kind of conference com- 
mittee. The proposals upon which they agreed were 
finally adopted, although not in identical forms, by both 
parliaments. The Austrian act bears the date of De- 
cember 21, 1867. 

The Union of Empire and Kingdom was unique. It 
was more than a mere personal union but less than a fed- 
eration. Although there were only two units, it perhaps 
more nearly approximated a confederation founded upon 
a treaty. Apart from the three central organs of the 
Union, each of the units was completely autonomous. 
These central organs were the Cro\\Ti, the so-called Dele- 

^Reichs-Gesetz-Blatt fiir das Kaiserthum Oesterreich, 1867, p. 1. 

-From 1867 the official designation for the Austrian part of the Dual Monarchy 
was simply "the Kingdoms and Lands represented in the Reichsrat." It was 
not until 1915 that the term "Austrian Empire" was officially adopted. 



AUSTRIA 



245 



gallons, and the Ministers of Foreign Affairs, War, and 
Finance. For the most part the relations of the monarch 
were not with the Austro-Hungarian Monarchy but with 
Austria as Emperor and with Hungary as King. For the 
consideration of certain common affairs each parhament 
elected annually a Delegation of sixty members. These 
Delegations sat as separate houses, except in case of dis- 
agreement, and alternately in Vienna and Budapest. 
Save for approving appropriations and dealing with some 
matters relating to the common ministries, the Delegations 
enacted no laws. There was uniform legislation on a few 
important subjects, but it was not enacted by the Delega- 
tions. It consisted of identical or parallel laws enacted 
by each of the parliaments. Upon many subjects the laws 
of the two parts of the Monarchy were not in accord. It 
is needless to say that under these circumstances there 
could be no such thing as a central responsible ministry 
of the Dual Monarchy. Ministerial responsibility implies 
at least some measure of unity in the system of represen- 
tative control. There was little or no unity in the coequal 
and often clashing Delegations; and there was still less 
unity in the coequal parliaments, each consisting of two 
approximately coequal chambers. The common minis- 
ters of Foreign Affairs, War, and Finance stood in a wholly 
anomalous and uncertain position between the Emperor- 
King on the one hand and the Deputations of two almost 
independent and internally discordant parliaments on the 
other. 

The inexactitude of powers and responsibilities in this 
strange union was a more or less exact reflection of 
the racial and other elements of disharmony upon which 
the union rested. The scheme inevitably played into the 
hands of a powerful and autocratic bureaucracy. By and 
large, the influence of Hungary not only outweighed that 
of Austria but was also wholly out of proportion to her 
relative population or wealth. For the Magyars, though 



Absence of 
ministerial 
responsi- 
bility 



Results of 
the scheme 



246 NEW CONSTITUTIONS OF EUROPE 



Economic 
interde- 
pendence 



Austrian 

and 

Hungarian 

counter 

influences 



The 

geography 
of Austria 



in bare majority, dominated the other peoples of Hungary 
and were able to present a united political front and pur- 
pose that could not be matched in Austria by the efforts 
of the German-Austrians to dominate the Czechs and the 
Poles. 

It is true that, in addition to the magnet of djTiasty, 
one far-reaching circumstance of cohesion existed ; econom- 
ically there was an immense amount of interdependence 
among the parts of the loosely knitted Dual Monarchy.^ 

Even so, in view of the fragile character of the organs 
of Union between Austria and Hungary, one might hazard 
the guess that the institutional history of the one could 
be written without much regard for that of the other. 
In fact, quite the reverse is true. Paradoxical as it may 
seem, the thin quality of the legal Union made the internal 
affairs of each part of the Dual Monarchy a matter of con- 
cern to the other part. Especially would it be impossible 
to describe the political or institutional life of the Austrian 
part of the Monarchy without consideration of the Hun- 
garian influence. But whatever may be true of history, 
it is manifest that the institutional cord that joined the 
two grand divisions of the Monarchy could be severed 
without any serious shock to either of the bodies politic. 
In the dissolution of the Monarchy in 1918, this severance 
of course occurred. It is, therefore, not only possible but 
almost indispensable to consider the situation and the 
eventualities in the Austrian Empire apart from those in 
the Kingdom of Hungary. 

It was Hungary that gave geographical compactness to 
the Dual Monarchy. The Kingdom fitted like a huge ball 
into the far-flung crescent of the Empire. This Austrian 



i"The political powers, then, which control respectively the Austrian and 
the Hungarian half of the Monarchy, have reckoned with the economic factor, 
and have both concluded that it is the determining force in their political des- 
tinies. They see that neither of them is' economically strong enough to stand 
alone, and that the alternative to 'Dualism' is not independence, but the in- 
corporation of each in another group or unit." Toynbee, Nationality and the 
War, p. 121 (New York, 1915). 



AUSTRIA 



247 



crescent was two thousand miles in length and only about 
one hundred miles in average width. ^ With Hungary 
excluded, the geographical sprawl of political Austria 
was positively fantastic. Upon such a territory, carved 
out of the heart of Europe, it would have been difficult 
to hold even a homogeneous people in political integration. 
And the peoples of Austria were highly heterogeneous. 
According to the Austrian census of 1910 there was a total 
population in the seventeen provinces of 28,500, 000.^ Of 
these a little more than one-third were German, something 
more than one-fifth were Czechs, slightly more than one- 
sixth were Poles, and about one-eighth were Ruthenians. 
The other included nationalities, in the order of their 
numbers, were Slovenes, Italians, Serbs, Croats, and 
Rumanians. About three-fifths of the Germans were 
concentrated in seven western provinces,^ in most of 
which they were in overwhelming majority; but they also 
constituted important minorities in the three provinces of 
the northwest.'* The Czechs were concentrated almost 
wholly in two of these northwestern provinces — Bohemia 
and Moravia — where they were in very substantial ma- 
jority. Apart from constituting a sizeable minority in 
Silesia, the Poles were almost exclusively in the huge 
western province of Galicia, where they outnumbered the 
Ruthenians three to two. The Ruthenians and Ruman- 
ians had large and nearly equal minorities in Bukowina, 
at the eastern tip of the crescent. In the southwestern 
provinces bordering on Italy and the Adriatic, Germans, 
Italians, Slovenes, and Serbo-Croats intermingled in varying 
and bewildering combinations from province to province.^ 

iBo\\Tnan, The New World, p. 208 (New York, 1922). 

'See table, ibid., p. 210. 

'Lower Austria, Upper Austria, Salzburg, Styria, Carinthia, Vorarlberg, and 
Tyrol. 

^Bohemia, Moravia, and Silesia. 

'In the province of Tyrol the Germans were in majority, the Italians in the 
minority. In Styria and Carinthia the Slovenes had substantial minorities 
among strong German majorities. In Gorizia and Trieste the Italians and 



The nation- 
alities of 
Austria 



248 NEW CONSTITUTIONS OF EUROPE 



Dissentious 

political 

history 



Austrian 
Constitution 
of 1867 



Apart from the influence of dynasty and the degree of 
economic interdependence that assisted in holding all parts 
of the Dual Monarchy together, there was indeed an ad- 
ditional cohering circumstance in the Austrian part: the 
p>opulation of nearly every province was overwhelmingly 
Roman Catholic. But this was not sufficient to create 
unity in a state that embodied such an opulence of variety 
in the matter of nationalities and spread itself over a ter- 
ritory of such weird contour and dimensions. It is un- 
necessary to review here the dissentious political history 
of Austria during the years preceding the outbreak of the 
World War. Let it be said merely that the turbulence of 
her internal politics was sufficient to show that under any 
heavy strain the Austrian part of the Dual Monarchy — 
to say nothing of the Hungarian unit — would crack and 
crumble into bits. 

In 1918 Austria was operating under a written constitu- 
tion. In essence this constitution was found in five fun- 
damental laws adopted December 21, 1867, as part and 
parcel of the general arrangement which resulted in the 
Ausgleich with Hungary. The constitution was, therefore, 
the work of the "smaller" Reichsrat which the Emperor 
had convoked to deal with the circumstance of Hungarian 
disaffection. In both of its houses this "constituent 
assembly" was essentially aristocratic. The form of gov- 
ernment that was established by this constitution need 
not be described in detail. It was in most respects iden- 
tical with the centralized system which the Emperor had 
attempted to set up over the whole Monarchy by the 
Patent of 1861. 

The Reichsrat that was created by the constitution 
was empowered to amend it by a two-thirds vote of each 
of the two chambers — the Herrenhaus and the Abgeord- 

Slovenes divided honors. Carniola was occupied almost exclusively by Slo- 
venes. Istria was divided almost equally between Italians and Serbo-Croats, 
neither having a majority. Dalmatia, the extreme southwestern tip of the 
crescent, belonged almost wholly to the Serbo-Croats. 



AUSTRIA 



>49 



netenhaus. In this maimer several important aniendments 
were adopted. In 1873 the power of electing members 
of the Ahgeordnetenhaus was taken from the provincial 
diets and vested in the voters organized into four classes — 
the great landowners, the cities, the chambers of com- 
merce and industry, and the rural communes. Elections 
were thus made direct; but the old illiberal class system 
was preserved intact. In 1896 a fifth class of general 
voters was established; but this class was empowered to 
elect only about one-sixth of the whole numjber of deputies. 
In 1907, however, after prolonged agitation, an amend- 
ment was at length adopted which abolished the class sys- 
tem of representation and introduced approximate man- 
hood suffrage. It also redistributed seats not only among 
the provinces but also among the races ; for provisions were 
made in most instances that resulted in separate racial 
representations in the mixed provinces. 

It was hoped that the liberalization of the suffrage would 
result in creating an assembly divided upon economic and 
social issues rather than upon lines of race and nationality. 
But this hope was not realized. Interest in nationality 
proved to be stronger than economic class interests. The 
last general election was held in June, 1911. The results 
were as follows: German Nationalists, 100; German 
Christian Socialists, 73; German Social Democrats, 49; 
United Bohemian Club (Czechs), 84; Bohemian Social 
Democrats (Czechs), 25; Poles, 70; Polish Social Demo- 
crats, 9; Ukraine Union (Ruthenians) , 28; Croatio -Slavon- 
ian Club (Slovenes and Serbo-Croats), 27; Dalmatians 
(Serbo-Croats), 7; Uniolatina (Italians), 21; Independents, 
23.^ Practically every party had its racial designation. 
Even the members of the Social Democratic party, which 
ran across national lines, were primarily Germans, Czechs, 
or Poles, and only secondarily Social Democrats. 

Little can be related here concerning the manner in 

^Figures from The Statesman s Yearhooh, 1915, p. 681. 



Ameud- 
ments of 
1873, 1896, 
and 1907 



Political 
parties and 
races 



!250 NEW CONSTITUTIONS OF EUROPE 



Difficulties 
for Austria 
in defeat 
or victory 



War 

increased 
race 
antagonisms 



National 
aspirations 
in 1917 



which the shifting events of the World War operated with 
disrupting effect upon the nationahties embraced within 
the Austro-Hungarian Monarchy.^ At the outbreak of 
hostilities there was an unexpected loyal rally of the races 
around the Hapsburg dynasty. But it was certain from 
the outset that either victory or defeat would have far- 
reaching practical consequences in the Dual Monarchy. 
In victory, for example, any possible disposition of Russian 
Poland (whether it was joined to the German Poland of 
Prussia, or to the Austrian Poland of Galicia, or was 
erected into a nominally independent kingdom) would 
create a serious political problem for Austria. The an- 
nexation of Serbia would be opposed by the Magyars of 
Hungary because they wanted no more Jugoslav terri- 
tory. And needless to say Hungary would bitterly oppose 
any arrangement which joined her with Austria in sub- 
ordination to a Mittel-Europa dominated by Germany. 
To the Austro-Hungarian victors would belong the em- 
barrassments. 

But apart from the embarrassments of possible victory, 
which more than once seemed imminent, there were nu- 
merous events that increased the antagonism of race 
toward race. German Austrians did not win the affection 
or confidence of the Poles and Ruthenes by the reception 
they gave to refugees from the Galician theatre of action. 
As the food shortage became more and more acute, the 
German Austrians furiously resented the internal "hunger 
blockade" established by Hungary, the principal food 
producer of the Monarchy. Ruthless suppression and 
imprisonment affected all the minor races adversely. 

In most of the countries at war, parliaments took a 
back seat during the period of hostilities. But in Austria 
parliament disappeared entirely. Prorogued early in 
1914, the Reichsrat was not convoked for more than three 



'See Temperlev, Ed., A History of the Peace Conference of Paris, Vol. IV, pp. 
29-118, 462-484 '(London, 1921). 



AUSTRIA 



251 



years. It was the outbreak of the Russian Revolution, 
which could not fail to make a profound impression in 
the Dual Monarchy, that led to its reassembly on May 
30, 1917. At once the spokesmen of the subject races 
came forward with programs of national aspiration that 
struck at the very foundations of the state. Through the 
remaining months of 1917 and the first half of 1918 there 
were seething discussions and negotiations concerning the 
conditions of settlement. And the difficulties were only 
increased by the cession of Russian territories to the 
Central Powers under the Treaty of Brest-Litovsk of 
March 3, 1918. It is highly improbable, however, that 
any attempt to remake Austria-Hungary from within 
could ever have been successfully effected. 

At different dates during the summer of 1918 France, 
Great Britain, and the United States recognized the 
belligerency or independence of the Czechoslovaks; and 
thereafter the Slav deputies in the Austrian Reichsrat 
openly defied the Government. In the event of Allied 
victory, the Jugoslavian, Italian, and Rumanian parts of 
Austria-Hungary were, by treaties and engagements, 
already negotiated to Serbia, Italy, and Rumania respec- 
tively. On September 29, 1918, Bulgaria signed an 
armistice with the Allies which was in effect complete 
surrender. This was the beginning of the end. At the 
opening of the Austrian Reichsrat three days later. Prime 
Minister Hussarek delivered a pathetically ludicrous ad- 
dress about "setting" the Austrian "house in order" and 
" considering and solving the problem of autonomy for the 
different nationalities." Mere autonomy within the 
Monarchy was now hopelessly anachronous. The Mon- 
archy was doomed, as were its coequal parts, the Empire 
and the Kingdom. 

On October 4, Germany, Austria-Hungary, and Turkey 
offered to negotiate peace upon the basis of President 
Wilson's "fourteen points" and subsequent addresses. 



Recognition 
of Czecho- 
slovakia, 
1918 



The Mon- 
archy 
doomed 



252 NEW CONSTITUTIONS OF EUROPE 



President 
Wilson and 
the Austro- 
Hungarian 
Government 



Disintegra- 
tion 



Creation of 
German- 
Austria 



On October 8, President Wilson asked the German Chan- 
cellor whether he was "speaking merely for the constituted 
authorities of the Empire." By wholly ignoring the 
Austro-Hungarian Government he clearly indicated that 
he regarded that government as incompetent to speak 
for its peoples. Thereupon a panicky attempt was made 
to create a coalition cabinet that would be somewhat 
representative of the various nationalities. But the 
Czechs and other nationalities refused to be led into such a 
trap. There were evidences also that Hungary was ready 
to scuttle the sinking Austrian ship in the hope of appear- 
ing herself in the guise of a submerged and oppressed 
nationality. 

On October 16, an imperial manifesto proclaimed that 
"Austria, in accordance w^ith the w^ll of her nationalities, 
is to become a federal state in which every nationality 
within its territory forms its own commonwealth." On 
the same day Prime Minister Wekerle declared in the 
Hungarian parliament that the Union between Austria 
and Hungary would thereafter be only a personal union. 
But the Czechs and Jugoslavs in Austria replied with a 
declaration in favor of the settlement of their status by 
the general Peace Conference; while the Rumanians and 
Slovaks of Hungary denied the authority of the Hungarian 
Government to speak for them. 

President Wilson's note of October 18, published in 
Austria three days later, in effect demanded as a condition 
for the negotiation of peace the independence of the 
Czechoslovaks and of the Jugoslavs. On the same day, 
October 18, the Czechoslovak National Council, sitting 
in Paris, declared the independence of Czechoslovakia 
and constituted itself the provisional government of the 
country. The German members of the Austrian Abgeord- 
neienhaus, realizing that the end was at hand, and ignor- 
ing both the Dual Monarchy and the Austrian Empire, 
constituted themselves a provisional national assembly 



AUSTRIA 



253 



to represent the German-Austrian people at the peace 
table. 

The old Government still clung to the fast-fading shadow 
of existence. Thin meetings of the Reichsrat were occa- 
sionally held. The Hussarek Ministry in Austria gave 
way to a sort of post-mortem Ministry formed by Lam- 
masch. Count Burian, Minister of Foreign Affairs of the 
Dual Monarchy, resigned, and Count Andrassy succeeded 
him upon the legally correct but factually absurd theory 
that "until the Act of 1867 is changed, nothing but a 
Common Ministry of Foreign Affairs is conceivable or 
possible." A well-nigh grotesque situation followed. 
For almost immediately Andrassy dispatched to Wash- 
ington a note accepting for the Dual Monarchy the 
conditions of independence for Czechoslovakia and Jugo- 
slavia. In other words, Austria-Hungary accepted con- 
ditions which were practically incompatible with the 
continuance of its own existence. Thereafter, not even 
legal objections could be raised against the revolutionary 
process of establishing independent governments in these 
sections of the defunct Monarchy. There might be, 
indeed, as there were, serious questions in respect to 
boundaries. But the existence of an Austrian state 
narrowly confined to territory occupied almost exclusively 
by German -Austrian s was in fact determined by events 
external to the new state itself. 

Under the census of January 31, 1920, the new Austria, 
geographically compact, has a population of between six 
and seven millions — approximately one-fourth of the 
population of the former crescent-shaped Austrian Empire. 
It embraces seven of the old provinces, from several of 
which, however, large or small sections were clipped in 
favor of neighboring states.^ About 3,000,000 German- 
Austrians are included within these neighboring states. 



The end of 
Austria- 
Hungary 



The new 

Austria 



'Lower Austria, Upper Austria, Salzburg, TjtoI, Vorarlberg, Styria, Carin- 
thia. 



254 NEW CONSTITUTIONS OF EUROPE 



The 

Provisional 
National 
Assembly 



The 

constituent 
assembly 
of 1919 



It embraces also an eighth state, Burgenland, or German 
West Hungary, carved out of territory formerly Hun- 
garian. 

When the Austrian Provisional National Assembly, 
consisting of the German members of the old Ahgeord- 
netenhaus, met on October 30, it immediately adopted a 
provisional constitution establishing a republican form of 
government.^ It was, therefore, merely a tardy gesture 
when the Emperor on November 11 issued a proclamation 
renouncing his right to participate in Austrian affairs. 
The provisional constitution vested legislative and execu- 
tive powers in the Provisional National Assembly and 
provided for the exercise of executive powers by a Staats- 
rat or committee of its own members. On this committee 
the three parties. Christian Socialists, German National- 
ists, and Social Democrats, were proportionally repre- 
sented. This Staatsrat, in turn, nominated the members 
of a Cabinet, who functioned as the heads of the several 
departments. The scope of powers of the Provisional 
National Assembly was, however, somewhat indefinite; 
for revolutionary assemblies growing out of the old diets 
of the provinces arose to contest the power of the central 
assembly. Moreover, the old complicated system of par- 
allel imperial and provincial administration, which had 
been a source of continuous embarrassment and friction, 
gave way to a decentralized system in which administra- 
tive services, carried on by the several provinces, were sub- 
ject to central control only in theory. 

The provisional constitution made provision for the 
call of a constituent assembly to draft a permanent con- 
stitution. An electoral law was enacted which provided 
for the election of 225 delegates in 38 districts, on the basis 



^For the text and a discussion of the resolution {Siaaisgesetzblatt, 1918, No. 1), 
see Kelsen, Die Verfassungsgesetze der Republik Deutschosterreich, Part I, pp. 
11-28. For the text and a discussion of the law of November 12, 1918, in re- 
spect to the form of the state and the government (Siaaisgesetzblatt, 1918, No. 
5), see ibid.. Part I, pp. 29-40. 



AUSTRIA 



255 



of equal, secret, direct, and universal suffrage without dis- 
tinction of sex, and according to the principles of propor- 
tional representation.^ The elections took place on 
February 16, 1919. No elections were held in certain 
territories which were claimed by Austria but were ac- 
tually occupied by Czechoslovakia, Jugoslavia, and 
Italy. In consequence only 170 delegates were returned. 
Of these 72 were Social Democrats, 69 were Christian 
Socialists, 26 were German Nationalists, and 3 were scat- 
tered. 

The constituent assembly met on March 4, 1919. Its 
first task was to make certain important alterations in 
the provisional constitution.- The Staatsrat was abol- 
ished, and certain changes were made in the relations of 
the Cabinet to the assembly. But the most important 
change effected was in the direction of curbing the powers 
of the provisional governments of the provinces. While 
the permanent constitution was in the making, the con- 
stituent assembly also engaged in a considerable amount 
of lawmaking and otherwise carried on the affairs of gov- 
ernment for a people living under appalling circumstances 
of near-starvation and general economic misery. At 
Easter and again in June there were outbursts of violence 
in Vienna. But for the most part the revolutionary 
passing from the old to the new order was pacific. 

The Treaty of St. Germain (September 10, 1919) ne- 
cessitated a redefinition of some of the frontiers of Austria, 
the substitution of the "Republic of Austria" for the name 
"German-Austria," and a repeal of the constitutional 
declaration: "German-Austria is a constituent part of 
the German Reich," The provisional constitution, as 
amended in important particulars by the constituent 
assembly, formed the basis upon which the assembly 

'For the text and a discussion of the laws relating to the constituent assembly 
(Staatsgesetzblatt, 1918, Nos. 114, 115) see Kelsen, op. cit.. Part II, pp. 1-9, 10-131. 

^For these laws and discussions thereof {Staatsgesetzblatt, 1919, Nos. 179, 
180), see ibid.. Part III, pp. 121-140, 141-160. 



Changes in 
the 

provisional 
government 



Changes 
required by 
Treaty of 
St. Germain 



256 NEW CONSTITUTIONS OF EUROPE 

worked out the permanent constitution. The chief obsta- 
cle that was encountered was the application of the federal 
principle with due regard on the one hand for the im- 
perative needs of centralization and on the other for the 
autonomous rights that were demanded by the states.* 
Decentralization was the order of the day even within the 
strictly German parts of the disintegrated Empire. 
Tjje The constituent assembly governed in Austria for more 

constitution than eighteen months. The permanent constitution did 
of 1920 j^Q^ gQ jjj^Q effect until October 1, 1920. Elections under 

the new constitution were held on October 17; and on 
December 8, the first President, Dr. Michael Hainisch, 
was elected by the joint assembly of the two houses. 
Thus was the new permanent government formally 
launched.^ 

2. CONSTITUTION OF AUSTRIA 

Act of October 1, 1920, by which the Austrian Republic is es- 
tablished as a Federal State. 

(Federal Constitutional Law) 
The Constituent Assembly has resolved: 

CHAPTER I 

General Provisions 

Article 1. Austria is a democratic republic. The will of 
the people is the foundation of its laws. 

Art. 2. (1) Austria is a Federal State (Bundesstaai). 

(2) The Federal State is composed of the autonomous states^ 
of Burgenland, Carinthia, Lower Austria (state of Lower Austria 

iSee above, pp. 62, 74 ff. 

The text of the constitution, which follows, is a translation of the original 
German text contained in Buiidesgesetzblatt fur die Rcpuhlik Oslerreick, 1920, 
p. 1. It has been compared to some extent with an anonymous French transla- 
tion found in Revue du droit ■public et de la science politique. Vol. 38, No. 2, April- 
May-June, 1921, p. 261. In the rendering of the English version presented 
herewith, the authors are under special obligation to Mr. Riidiger Bilden. 

^Lander is translated "states." See above, p. 176, note 2. 



AUSTRIA 257 

and city of Vienna), Upper Austria, Salzburg, Styria, Tyrol, 
and Vorarlberg. 

Art. 3. (1) The territory of the Federal State consists of the 
territories of the Austrian states. 

(2) Alteration of federal boundaries, affecting also the boun- 
daries of a state, as well as alteration of state boundaries within 
the federal territory may take place — except as provided by 
peace treaties — only by concurrent constitutional laws of the 
Federal State and the state affected thereby. 

(3) Separate provisions for the state of Lower Austria and 
the City of Vienna are included in the fourth chapter. 

Art. 4. (1) The federal territory forms a uniform currency, 
economic, and customs zone. 

(2) Customs zones or other restrictions on communications 
may not be established within the federal territory. 

Art. 5. Vienna shall be the federal capital and the seat of 
the highest federal authorities. 

Art. 6. (1) There shall be a state citizenship for each state. 
Domicile (Heimairecht) in a municipal district {Gemeinde) of 
the state shall be a condition for state citizenship. The condi- 
tions for the acquisition and loss of state citizenship shall be 
the same in every state. 

(2) Federal citizenship shall be acquired on the basis of state 
citizenship. 

(3) Every Austrian citizen shall have In every state equal 
rights and duties with the citizens of that state. 

Art. 7. (1) All Austrian citizens are equal before the law. 
Privileges, based upon birth, sex, rank, class, or religious belief 
are abolished. 

(2) All public employees, including the members of the federal 
army, shall be guaranteed the unrestricted exercise of their 
political rights. 

Art. 8. The official language of the Republic shall be Ger- 
man, without prejudice to the rights conceded by federal law 
to foreign-language minorities. 

Art. 9. The universally recognized rules of international law 
are accepted as integral parts of the law of the Austrian Republic. 

Art. 10. The Federal State shall have powers of legislation 
and execution in respect to the following matters: 

(a) The federal constitution, especially elections to the 

Nationalrat, and popular suffrage by virtue of the federal 

constitution; jurisdiction in regard to the constitution. 



258 NEW CONSTITUTIONS OF EUROPE 

(b) Foreign relations, including political and commercial 
representation in relations with foreign countries, in particular 
the conclusion of all treaties, marking out of boundaries, traffic 
in goods and live stock with foreign countries, and customs. 

(c) Regulation and supervision of entrance into and depart- 
ure from the federal territory; immigration and emigration; 
passports, deportation, removal, expulsion, and extradition 
from or through the federal territory. 

(d) Federal finance, especially taxes to be collected exclu- 
sively or in part for the federal treasury; monopolies. 

(e) Currency; credit, produce, and stock exchanges; bank- 
ing; weights and measures; standards and assaying. 

(f) Civil law, including the law of economic associations; 
criminal law with the exception of administrative criminal law 
and administrative criminal procedure in matters which come 
within the autonomous jurisdiction of the states; administra- 
tion of justice; administrative jurisdiction; copyright; the 
press; expropriation not pertaining to specific matters within 
the autonomous jurisdiction of the states; matters pertaining 
to public notaries, lawyers, and related professions. 

(g) The right of association and the right of assembly. 

(h) Commerce and industry; suppression of unfair competi- 
tion; patents and protection of patterns, trademarks, and 
other commercial designations; matters pertaining to patent 
lawyers; engineering and consulting engineering; chambers of 
commerce, trade, and industry. 

(i) Traffic by rail, water, and air; matters concerning roads 
declared by federal law to be federal highways on account of 
their importance in intercommunication; police authority 
over watercourses and navigation; posts, telegraphs, and 
telephones. 

(j) Mining; regulation and maintenance of all waters used 
for navigation or rafting or suitable for such use, and of such 
waters as form a boundary with foreign countries or between 
states, or which flow through two or more states; construction 
and maintenance of those waterways which connect the inland 
with foreign countries or connect several states; general tech- 
nical measures for adequate utilization of water power, exclu- 
sive of agricultural and small industrial plants: standardiza- 
tion and systematization of electrical establishments and 
plants, safety measures in this field; right of way for electric 
power transmission in so far as the transmission extends across 



AUSTRIA 259 

the boundaries of two or more states; steam boilers and power 
engines; surveying. 

(k) Labor law and protection of workers and other em- 
ployees not engaged in agriculture or forestry; social insurance 
and contract insurance. 

(1) Public health, exclusive of the disposal or burial of the 
dead, as well as of the municipal sanitation and life-saving ser- 
vice; but only sanitary supervision over hospitals and sana- 
toria, health resorts, and watering places; veterinary regula- 
tions; foodstuffs including food control. 

(m) Scientific and technical archives and libraries; artistic 
and scientific collections and institutions; protection of monu- 
ments; matters pertaining to religion; census and other sta- 
tistics not solely in the interest of one state ; endowments and 
foundations not intended to serve the interest of only one 
state and not hitherto autonomously administered by the 
states. 

(n) Federal police and federal gendarmerie. 

(o) Military affairs ; war indemnities and care of discharged 
soldiers and their dependents; such measures occasioned by 
or in consequence of a war as are necessary to safeguard the 
uniform administration of economic affairs, especially the 
supply of necessities to the population. 

(p) Creation of federal authorities and other federal oflScers ; 
law of the federal public service. 

Art. 11. (1) The Federal State shall have the power of 
legislation, but the states shall have the power of execution in 
respect to the following matters : 

(a) Citizenship and domiciliary rights (Heimatrecht), vital 
statistics, including registration and change of name; police 
supervision of aliens. 

(b) Professional associations not included in Article 10, but 
exclusive of those pertaining to agriculture and forestry. 

(c) Public agencies and private brokerages, 

(d) Taxes not collected exclusively or partially for the fed- 
eral treasury; provisions for the prevention of double taxation 
and other excessive levies; for the prevention of obstructions 
to foreign, interstate, or domestic traffic or economic relations; 
for the prevention of excessive levies on public communica- 
tions or institutions, or levies which interfere with commu- 
nication; and for the prevention of prejudice to federal 
finance. 



260 NEW CONSTITUTIONS OF EUROPE 

(e) Ammunition, projectiles, and explosives, not subject 
to monopoly, as well as the manufacture of arms; motor 
vehicles. 

(f) Housing. 

(g) Administrative procedure and administrative criminal 
procedure including execution, and the general provisions of 
administrative criminal law, even in matters in which the 
states have the power of legislation. 

(2) Ordinances for the execution of the laws provided for in 
Paragraph 1 shall be issued by the Federal State, unless other- 
wise provided by such laws. 

Art. 12. (1) The Federal State shall have the power of 
legislation as to fundamental principles, but the states shall 
have the power of supplementary legislation and the power of 
execution in respect to the following matters : 

(a) Organization of administration in the states. 

(b) Poor relief; problems of population; public sanatoria; 
protection of maternity, infancy, and adolescence; hospitals 
and sanatoria ; health resorts and watering places. 

(c) Institutions such as penitentiaries and workhouses, or 
institutions of a similar character for the protection of society 
against criminals, vagrants, and other dangerous persons; de- 
portation and expulsion from one state to another. 

(d) Public institutions for the extra-judicial adjustment of 
controversies. 

(e) Labor law and protection of workers and other em- 
ployees in agriculture and forestry. 

(f) Land reform, including especially agrarian reform and 
recolonization. 

(g) Forestry including pasturage, protection of plants 
against disease or injury. 

(h) Electricity and water rights not included in Article 10. 
(i) Building regulations (Bauwesen). 

(j) Law of the public service concerning employees of the 
states performing official duties. 

(2) Final decision in matters pertaining to land reform (Para- 
graph 1, Clause F) shall be vested in a commission appointed 
by the Federal State and consisting of judges, administrative 
oflScials, and experts. 

Art. 13. (1) The Federal State shall have powers of legisla- 
tion and execution to determine what taxes shall belong to the 



AUSTRIA 261 

Federal State, the states, or the municipal districts (Gemeinde); 
to determine the shares of the states or municipalities in the 
revenues of the Federal State; and to determine the contribu- 
tions and allowances from the federal treasury for state or muni- 
cipal expenditures. 

(2) The states shall have power of legislation and execution 
to determine what state taxes shall be allocated to the municipal 
districts; to determine the shares of the municipal districts in 
the revenues of the states; and to determine the contributions 
and allowances from the treasuries of the states to the expendi- 
tures of the municipal districts. 

Art. 14. A special federal constitutional law shall regulate 
the scope of action of the Federal State and the states in regard 
to schools, education, and popular instruction. 

Art, 15. (1) In so far as a subject matter has not been spe- 
cifically assigned by the federal constitution to the Federal 
State as to legislation or execution, it shall remain within the 
the autonomous sphere of action of the states. 

(2) In so far as the power of legislation has been reserved to 
the Federal State only as to fundamental principles, the states 
shall have the power of supplementary legislation within the 
scope determined by federal law. Federal law may fix a period 
of time for the enactment of supplementary legislation which, 
without the consent of the Bundesrat, shall not be less than six 
months nor more than one year. If a state does not observe 
this period of time, the power of supplementary legislation for 
such state shall be transferred to the Federal State. With the 
enactment by the state of a supplementary law, the federal 
supplementary law shall cease to be in force. 

(3) If an act of execution on the part of a state in the sub- 
jects covered by Articles 11 and 12 shall be effective for several 
states, such states shall take steps first to reach an agreement 
thereon. If they fail to agree, the power of performing such an 
act shall, on application of one of these states, be transferred 
to the competent federal minister. Detailed regulations may 
be prescribed by federal laws in accordance with Articles 11 
and 12. 

(4) The Federal State shall have the right to supervise the 
execution of the regulations issued by the Federal State in re- 
spect to such subjects as are reserved for legislation by the 
Federal State in accordance with Articles 11 and 12. 

(5) The states shall be empowered within the scope of their 



262 NEW CONSTITUTIONS OF EUROPE 

legislative authority to issue all regulations necessary for en- 
forcement, even in the province of criminal and civil law. 

Art. 16. (1) The states shall be obliged to take whatever 
measures are necessary within their autonomous sphere of action 
for the execution of treaties; if a state does not comply with 
this obligation in due time the Federal States shall be vested 
with the power to take such measures, and especially to enact 
the necessary laws. 

(2) Likewise, the Federal State, when carrying out treaties 
with foreign states, shall have the right of supervision even in 
regard to such matters as come within the autonomous sphere of 
action of the states. In this case the Federal State shall have 
the same rights over against the states as in matters of indirect 
federal administration. 

Art. 17. (1) The provisions of Articles 10-15 in respect to 
the powers of legislation and execution shall in no way affect 
the status of the Federal State in the matter of its private rights. 

(2) In all these legal relations the legislation of a state shall 
never affect the Federal State more disadvantageously than it 
affects the state itself. 

Art. 18. (1) The entire public administration must be con- 
ducted in accordance with the laws. 

(2) Within the limits of the laws every administrative author- 
ity may issue ordinances in its own sphere of action. 

Art. 19. (1) The supreme executive authority of the Federal 
State shall be entrusted to commissioners of the people chosen by 
the assemblies of representatives of the people in the Federal 
State and in the states. The commissioners of the people shall 
be the Federal President, the federal ministers, the secretaries of 
state, and the members of the state governments. 

(2) The transaction of business by the commissioners of the 
people shall be under the supervision of the assembly by which 
they are chosen. 

(3) They may be called before the Supreme Constitutional 
Court ( Verfassungsgerichtshof) to account for their actions and 
omissions, in so far as the federal constitution or the state con- 
stitutions provide. 

Art. 20. Under the direction of the commissioners of the 
people, agencies elected for a certain period or appointed pro- 
fessional agencies shall conduct the federal or state administra- 
tion in accordance with the laws. They shall be bound by the 
directions of the commissioners of the people, who are their 



AUSTRIA 263 

superiors, and shall be responsible to them for the exercise of 
their office, unless the federal constitution or the state constitu- 
tions otherwise provide. 

Art. 21. (1) The law of the public service, including the 
salary scale and the power of discipline over employees of the 
Federal State and of the states performing official tasks, shall 
be regulated by federal law according to uniform principles. 
(Article 10, Clause P, and Article 12, Clause J.) This law shall 
also contain provisions determining the extent to which repre- 
sentatives of employees may participate in the regulation of the 
rights and duties of such employees without prejudice to the 
supreme control of service on the part of the Federal State 
and the states. 

(2) The federal commissioners of the people shall have the 
supreme control of service over employees of the Federal State; 
the state commissioners of the people shall have the supreme 
control of service over employees of the states. 

(3) The appointment of employees of local or territorial 
municipalities who perform official tasks, and the law of the 
public service concerning such employees, shall be regulated in 
connection with the organization of the administration. 

(4) Public employees shall always be guaranteed the pos- 
sibility of an interchange of service between the Federal 
State, the states, and the municipalities. Change of service 
shall take place with the consent of the authorities authorized 
to exercise the supreme control of service. Special arrange- 
ments to facilitate interchange of service may be made by fed- 
eral law. 

(5) Titles of office for the agencies of the Federal State, the 
states, or the municipalities may be regulated in a uniform man- 
ner by federal law. They shall be protected by law. 

Art. 22. All agencies of the Federal State, the states, or the 
municipalities must render mutual assistance to one another 
within scope of their lawful authority. 

Art. 23. (1) All persons entrusted with functions of federal, 
state, or municipal administration, or with judicial functions, 
shall be liable for any injury inflicted on any third party through 
intentional or grossly negligent violation of the law in the ex- 
ercise of their office. The Federal State, the states, or the muni- 
cipalities shall be liable for violations of the law on the part 
of persons in their service. 

(2) Detailed regulations shall be prescribed by federal law. 



264 NEW CONSTITUTIONS OF EUROPE 

CHAPTER II 

Federal Legislation 
A. The Nationalrat 

Art. 24. The power of legislation of the Federal State shall 
be exercised by the Nationalrat, elected by the entire Austrian 
people, with the concurrence of the Bundesrat, elected by the 
Landtags. 

Art. 25. (1) The seat of the Nationalrat shall be the federal 
capital, Vienna. 

(2) For the duration of a period of extraordinary conditions, 
the Federal President, at the request of the Federal Ministry, 
may call the Nationalrat together in any other place in the fed- 
eral territory. 

Art. 26. (1) The Nationalrat shall be elected according to the 
principles of proportional representation by the equal, direct, 
secret, and personal suffrage of all Austrian men and women 
who are more than twenty years of age before the first of Janu- 
ary of the year of the election. 

(2) The federal territory shall be divided within the state 
boundaries into contiguous election districts. A number of 
deputies shall be allowed to the qualified voters of an election 
district (electoral body) in proportion to the number of citizens 
in the election districts; that is, the number of Austrian citizens 
who in accordance with the results of the last census had their 
domicile in the election districts. A division of the voters into 
other electoral bodies shall not be permissible. 

(3) Election day must be a Sunday or other public holiday. 

(4) Every qualified voter who is more than twenty-four years 
of age before the first of January of the year of the election, shall 
be eligible for election. 

(5) Denial of the right to vote or to be elected may result 
only from a judicial conviction or decree. 

Art. 27. (1) The Nationah-at shall be elected for a four-year 
term, computed from the day of its first meeting, but continuing 
to the day on which the new Nationalrat meets. 

(2) The newly elected Nationalrat must be called together by 
the Federal President no later than the thirtieth day after the 
election. The election must be arranged by the Federal Min- 
istry in such a manner as to enable the n^ewly elected Nationalrat 



AUSTRIA 265 

to meet on the day after the expiration of the four year term of 
the old Nationalrat. 

Art. 28. The Nationalrat may be adjourned only by its own 
resolution. It shall reassemble at the call of its President. He 
must call the Nationalrat together immediately if at least one- 
fourth of its members or if the Federal Ministry demands it. 

Art. 29. Before the expiration of its term the Nationalrat 
may by simple law decree its own dissolution. In such case also 
its term shall last until the newly elected Nationalrat meets. 

Art. 30. (1) The Nationalrat shall choose from among its 
own members its President and its Second and Third Presidents. 

(2) The business of the Nationalrat shall be conducted in ac- 
cordance with a special law and autonomous rules of procedure 
determined by the Nationalrat within the limits of this law. 
The law concerning the rules of procedure may be passed only 
in the presence of one-half of the members and by a majority 
of two-thirds of the votes cast. 

Art. 31. A resolution of the Nationalrat requires the presence 
of at least one-third of the members and an absolute major- 
ity of the votes cast, unless the law regulating the rules of pro- 
cedure otherwise provides. 

Art. 32. (1) The sittings of the Nationalrat shall be public. 

(2) On demand of the presiding officer or of one-fifth of the 
members present the public shall be excluded if the Nationalrat 
so resolves in executive session. 

Art. 33. True and accurate reports of the proceedings at 
the public sittings of the Nationalrat or its committees are 
privileged matters. 

B. The Bundesrat 

Art. 34. (1) The Bundesrat shall represent the states in pro- 
portion to the number of citizens in the state in accordance with 
the following provisions : 

(2) The city of Vienna and the State of Lower Austria (Arti- 
cles 108-114) shall be regarded as separate states in respect 
to representation and status in the Bundesrat. 

(3) The state having the greatest number of citizens shall 
have twelve members; every other state shall be represented by 
a number of members determined by the ratio of its number of 
citizens to the aforementioned number of citizens, a fraction of 
more than one-half of the proportional number being counted 



266 NEW CONSTITUTIONS OF EUROPE 

as the full proportional number. Every state shall be entitled to 
at least three representatives. An alternate shall be chosen for 
each representative. 

(4) The number of representatives from each state in accord- 
ance with the aforementioned provision shall be reapportioned 
by the Federal President after each general census. 

Art. 35. (1) The members of the Bundesrat and their al- 
ternates shall be elected by the Landtags for the duration of 
their terms in accordance with the principles of proportional 
representation; at least one representative, however, must be 
assigned to the party which has obtained the second largest 
number of seats in the Landtag, or, in case several parties have 
obtained the same number of seats, to the party which polled 
the second largest number of votes at the last election to the 
Landtag. Equal claims of several parties shall be decided by lot. 

(2) Members of the Bundesrat need not necessarily be mem- 
bers of the Landtag by which they are elected; they must, 
however, be eligible for election to that Landtag. 

(3) After the expiration of the term of a Landtag or after its 
dissolution, the members of the Bundesrat elected by it shall 
exercise their functions until the election of members of the 
Bundesrat by the new Landtag has taken place. 

(4) The provisions of this Article may be changed only if 
in the Bundesrat such change is made by resolution with an 
aflSrmative vote of a majority of the representatives of at least 
four states, provided that the majority necessary for any resolu- 
tion concurs in this resolution. 

Art. 36. (1) The presidency of the Bundesrat shall be held 
alternately by the states in alphabetical order for a period of 
six months. 

(2) The ranking representative of the state entitled to the pres- 
idency shall act as presiding officer; substitutes shall be chosen 
in accordance with the rules of procedure of the Bundesrat. 

(3) The Bundesrat shall be called together by its presiding 
officer at the seat of the Nationalrat. The presiding officer must 
call the Bundesrat together immediately if at least one-fourth of 
its members or if the Federal Ministry demands it. 

Art. 37. (1) Except as otherwise provided in this law, a 
resolution of the Bundesrat requires the presence of at least one- 
third of the members and an absolute majority of the votes cast. 

(2) The Bundesrat shall by resolution determine its own rules 
of procedure. This resolution requires the presence of at least 



AUSTRIA 267 

one-half of the members and a majority of two-thirds of the votes 
cast. 

(3) The sittings of the Bundesrat shall be public. The public 
may, however, be excluded by resolution in accordance with the 
provisions of the rules of procedure. The provisions of Article 
33 shall apply also to the public sittings of the Bundesrat and 
its committees. 

C. The Bundesversammlung 

Art. 38. The Nationalrat and the Bundesrat shall assemble 
as the Bundesversammlung in a joint public sitting at the seat 
of the Nationalrat for the election of the Federal President and 
for administering his oath of oflBce as well as for a resolution con- 
cerning a declaration of war. 

Art. 39. (1) With the exception of the cases provided for by 
Article 63, Paragraph 2, Article 64, Paragraph 2, and Article 
68, Paragraph 2, the Bundesversammlung shall be called to- 
gether by the Federal President. The presidency shall be ex- 
ercised alternately by the President of the Nationalrat and the 
presiding officer of the Bundesrat, for the first time by the latter. 

(2) The rules of procedure of the Nationalrat shall be duly 
applied in the Bundesversammlung. 

(3) The Nationalrat and the Bundesrat may in advance sep- 
arately consider any matter subject to a vote of the Bundesver- 
sammlung. 

(4) The provisions of Article 33 shall apply also to the sittings 
of the Bundesversammlung. 

Art. 40. (1) The resolutions of the Bundesversammlung 
shall be authenticated by its presiding officer and countersigned 
by the Federal Chancellor. 

(2) Official publication shall be the duty of the Federal 
Chancellor. 

D. Federal Legislative Procedure 

Art. 41. (1) Bills shall be submitted to the Nationalrat 
either as proposals of its members or as bills of the Federal 
Ministry. The Bundesrat may submit bills to the Nationalrat 
through the Federal Ministry. 

(2) Every proposal signed by 200,000 qualified voters or by 
one-half of the qualified voters of each of three states (popular 
initiative) must be submitted by the Federal Ministry to the 



268 NE^Y CONSTITUTIONS OF EUROPE 

Nationalrat to be acted on in accordance with its rules of pro- 
cedure. The initiative proposal must take the form of a bill. 

Art. 42. (1) Every law enacted by the Nationalrat must be 
transmitted at once by its President to the Federal Chancellor, 
who must communicate it immediately to the Bundesrat. 

(2) Except as otherwise provided by constitutional law, an 
enacted law may be authenticated and published only if the 
Bundesrat does not veto it. Such veto must be supported by 
reasons. 

(3) This veto must be communicated in WTiting to the Na- 
tionalrat through the medium of the Federal Chancellor within 
eight weeks after the law has reached the Bundesrat. 

(4) If the Nationalrat in the presence of at least one-half of 
its members reaffirms its original resolution, the law must be 
authenticated and published. If the Bundesrat resolves not 
to veto the law, or if no valid veto, supported by reasons, has 
been interposed within the period of time precribed by Para- 
graph 3, the law must be authenticated and published. 

(5) The Bundesrat may not veto resolutions of the National- 
rat in respect to a law concerning the rules of procedure of the 
Nationalrat, the dissolution of the Nationalrat, the grant of 
the federal budget estimates, the approval of the final budget 
accounts, the issue or conversion of federal loans, or the disposi- 
tion of the federal property. Such laws enacted by the Na- 
tionalrat must be authenticated and published without further 
delay. 

Art. 43. If the Nationalrat so resolves, or if a majority of 
the members of the Nationalrat so demands, every law enacted 
by the Nationalrat shall, before its authentication, be submitted 
by the Federal President to a referendum. 

Art. 44. (1) Constitutional laws or constitutional provisions 
contained in ordinary laws may be enacted by the Nationalrat 
only in the presence of at least one-half of its members and by a 
majority of two-thirds of the votes cast. They must be speci- 
fically designated as such ("constitutional laws" or "constitu- 
tional provisions ") . 

(2) A complete revision of the Federal Constitution must 
upon conclusion of the procedure prescribed in Article 42, but 
before authentication by the Federal President, be submitted 
to a referendum of the entire people of the Federal State; but 
an amendment need be so submitted only on demand of one- 
third of the members of the Nationalrat or the Bundesrat. 



AUSTRIA 269 

Art. 45. (1) An absolute majority of the valid votes cast in 
the referendum shall decide. 

(2) The result of the referendum must be officially announced. 

Art. 46. (1) Detailed regulations in respect to the initiative 
and referendum shall be prescribed by federal law. 

(2) Every citizen of the Federal State qualified to vote in 
the elections to the Nationahat shall be qualified to participate 
in the initiative and the referendum. 

(3) The Federal President shall make arrangements for the 
referendum. 

Art. 47. (1) The signature of the Federal President shall 
certify that the federal laws have been constitutionally enacted. 

(2) Presentation for certification shall take place through 
the Federal Chancellor. 

(3) The certification must be countersigned by the Federal 
Chancellor and the competent federal ministers. 

Art. 48. Federal laws and the treaties referred to in Article 
50 shall be published in the form in which they are approved 
by the Nationalrat; federal laws based on a referendum shall 
be published in the form in which they are approved by the ref- 
erendum. 

Art. 49. (1) The federal laws and such treaties of state as 
are referred to in Article 50 must be published by the Federal 
Chancellor in the Federal Law Gazette. Unless otherwise 
explicitly provided, they shall become effective at the expiration 
of the day on which the number of the Federal Law Gazette 
containing the publication is issued and distributed; and unless 
otherwise explicitly provided, they shall apply to the entire 
federal territory. 

(2) A special federal law shall regulate the publication of the 
Federal Law Gazette. 

E. Participation of the Nationalrat and the Bundesrat 
in the Executive Power of the Federal State 

Art. 50. (1) All political treaties, and all other treaties 
only in so far as they provide for an alteration of existing laws, 
shall require for their validity the consent of the Nationalrat. 

(2) The provisions of Article 42, Paragraphs 1-4, and, in case 
of alteration of a constitutional law by a treaty, the provisions of 
Article 44, Paragraph 1, shall be duly applied to resolutions of 
the Nationalrat concerning the approval of treaties. 



270 NEW CONSTITUTIONS OF EUROPE 

Art. 51. The Federal Ministry must submit to the National- 
rat no later than eight weeks before the expiration of the current 
fiscal year estimates of the federal revenues and appropriations 
for the ensuing fiscal year. 

Art. 52. The Nationalrat and the Bundesrat shall be author- 
ized to examine the conduct of public business by the Federal 
ISIinistry, to question the members of the Federal Ministry on 
all matters relating to the execution of the laws, and to de- 
mand all pertinent information as well as to express by resolu- 
tion their wishes in respect to the exercise of the executive power. 

Art. 53. (1) The Nationalrat may by resolution set up 
committees of investigation. 

(2) The courts and all other authorities shall be obliged to 
comply with the requests of these committees for evidence; 
upon their demand all public authorities shall lay their records 
before them. 

(3) The procedure of the committees of investigation shall be 
regulated by the law concerning the rules of procedure of the 
Nationalrat. 

Art. 5-i. The Nationalrat shall participate in fixing railroad, 
postal, telegraph, and telephone rates and prices of articles 
subject to monopoly, as well as salaries of persons permanently 
employed in the enterprises of the Federal State. The character 
of such participation shall be prescribed by federal constitutional 
law. 

Art. 55. The Nationalrat shall itself share in the executive 
power of the Federal State in such cases as are specified by this 
law, as well as through the main committee elected from among 
its members in accordance with the principles of proportional 
representation. It shall be a special function of the main com- 
mittee to participate in the choice of the Federal Ministry 
(Article 70). Moreover, certain ordinances of the Federal 
Ministry shall require the consent of the main committee, as 
may be prescribed by federal law. 

F. Status of the Members of the Nationalrat 
and the Bundesrat 

Art. 56. When acting in their official capacity the members 
of the Nationalrat or the Bundesrat shall not be bound by in- 
structions. 

Art. 57. (1) The members of the Nationalrat shall never be 



AUSTRIA 271 

held responsible for any votes east in their official capacity, 
and they shall be held responsible only by the Nationalrat for 
any utterances made in this capacity. 

(2) No member of the Nationalrat may, without the consent 
of this body, be subjected to arrest or any other official prosecu- 
tion for a penal offense unless he is apprehended in the act of 
committing a crime. 

(3) In case of apprehension in the very act, the authorities 
must notify the President of the Nationalrat that the arrest 
has taken place. 

(4) On demand of the Nationalrat the arrest must be cancel- 
led or the entire prosecution must be deferred during the term 
of the Nationalrat. 

(5) The immunities attaching to the agencies of the Na- 
tionalrat whose functions extend beyond the term of the Na- 
tionalrat shall continue for the duration of their functions. 

Art. 58. The members of the Bundesrat shall, during the 
entire term of their functions enjoy the immunity of members 
of the Landtag by which they are deputized. 

Art. 59. (1) No person may be a member of the Nationalrat 
and the Bundesrat at the same time. 

(2) Public officials, including members of the federal army, 
shall not require leave to exercise their functions as members 
of the Nationalrat or the Bundesrat. Should they seek election 
to the Nationalrat the time necessary therefor shall be granted to 
them. Detailed regulations shall be prescribed by the rules for 
the public service. 

CHAPTER III 

The Executive Power of the Federal State 

A. Administration 

1. The Federal President 

Art. 60. (1) The Federal President shall be elected by the 
Bundesversammlung in accordance with Article 38 and by secret 
ballot. 

(2) His term of office shall be four years. A reelection for 
the term of office immediately following shall be permissible 
only once. 

(3) Only a person who is qualified to vote in the elections to 
the Nationalrat and who is more than thirty -five years of age 



272 NEW CONSTITUTIONS OF EUROPE 

before the first of January of the year of the election may be 
elected Federal President. 

(4) Members of reigning or formerly reigning families are not 
eligible. 

(5) The person who receives a majority of all votes cast shall 
be elected. Balloting shall be repeated until an absolute major- 
ity is obtained for one person. 

Art. 61. During his term of office the Federal President must 
not be a member of any general representative body or exercise 
any other profession. 

Art. 62. On assuming office the Federal President shall before 
the Bundesversammlung take the following oath: "I swear that 
I will faithfully observe the constitution and all laws of the 
Republic and will fulfill my duty to the best of my knowledge 
and conscience." 

Art. 63. (1) An official prosecution of the Federal President 
is permissible only if the Bundesversammlung assents to it. 

(2) A bill for the prosecution of the Federal President shall 
be presented by the competent authority to the Nationalrat, 
which decides whether it shall be submitted to the Bundesver- 
sammlung. If the Nationalrat decides in the affirmative, the 
Federal Chancellor must call the Bundesversammlung together 
immediately. 

Art. 64. (1) In case of disability on the part of the Federal 
President or in case of a vacancy in his office, the functions of the 
Federal President shall devolve upon the Federal Chancellor. 

(2) In case of a vacancy in the Federal Presidency the Federal 
Chancellor must immediately call the Bundesversammlung 
together for the election of a new Federal President. 

Art. 65. (1) The Federal President represents the Republic 
in international relations; he receives and accredits diplomatic 
representatives; he accepts the exequaturs of foreign consuls; 
he appoints the consular representatives of the Republic in 
foreign countries and concludes treaties. 

(2) Moreover, in addition to the powers conferred upon him 
by other provisions of this constitution, he shall be empowered : 

(a) To appoint all federal officials, including military 
officers and other federal functionaries, and to commission 
them. 

(b) To create and confer professional titles. 

(c) Specifically, to pardon persons convicted by final 
judgments of the courts, to mitigate or alter sentences pro- 



AUSTRIA 273 

nounced by the courts, to remit the legal consequences of a 

conviction and to cancel convictions by pardon, to quash 

criminal proceedings in case of penal offenses to be officially 

prosecuted. 

(d) To legitimatize illegitimate children on the petition of 

the parents. 

(3) Moreover, special laws shall prescribe to what extent the 
Federal President shall be empowered to confer honorary rights, 
to grant extraordinary allowances and increases in salaries and 
pensions, to confer rights of appointment or confirmation, and 
to exercise other powers in matters concerning individuals. 

Art. 66. (1) The Federal President may transfer to the 
competent members of the Federal Ministry the right conferred 
on him to appoint certain classes of federal employees. 

(2) The Federal President may authorize the Federal Minis- 
try or the competent members thereof to conclude certain cate- 
gories of treaties which are not covered by the provisions of 
Article 50. 

Art. 67. (1) Except as otherwise provided by the constitu- 
tion, all official acts of the Federal President shall be performed 
upon the proposal of the Federal Ministry or of a federal min- 
ister empowered by it. The law shall prescribe to what extent 
the Federal Ministry or the competent federal minister shall 
be bound by proposals emanating from other sources. 

(2) All official acts of the Federal President require for their 
validity the countersignature of the Federal Chancellor or the 
competent federal ministers. 

Art 68. (1) In accordance with Article 142, the Federal 
President shall be responsible to the Bundesversammlung for 
the exercise of his office. 

(2) Upon resolution of the Nationalrat or the Bundesrat the 
Federal Chancellor must call the Bundesversammlung together 
to decide upon this issue [of impeachment]. 

(3) A resolution of impeachment within the meaning of Arti- 
cle 142 shall require the presence of more than one-half of the 
members of each of the two representative bodies and a majority 
of two- thirds of the votes cast. 

2. The Federal Ministry 

Art. 69. (1) The highest administrative functions of the 
Federal State, unless conferred upon the Federal President, shall 



274 NEW CONSTITUTIONS OF EUROPE 

be entrusted to the Federal Chancellor, the Vice-Chancellor, 
and the other federal ministers. Together they form the Fed- 
eral Ministry under the presidency of the Federal Chancellor. 

(2) The Vice-Chancellor shall be empowered to represent the 
Federal Chancellor in the entire sphere of his authority. 

Art. 70. (1) The Nationalrat shall elect the Federal Ministry 
by a recorded vote upon nomination by a main committee on 
the election of an entire Federal Ministry. 

(2) Only persons eligible to the Nationalrat may be elected 
members of the Federal Ministry. The members of the Federal 
Ministry need not be members of the Nationalrat. 

(3) If the Nationalrat is not in session the Federal Ministry 
shall be chosen provisionally by the main committee; as soon as 
the Nationalrat meets, the election must take place. 

(4) The provisions of Paragraphs 1-3 shall be duly applied to 
the appointment of individual members of the Federal Minis- 
try. 

Art. 71. If the Federal Ministry resigns from office the Fed- 
eral President must, until a new Federal Government has been 
formed, entrust the carrying on of the administration to mem- 
bers of the retiring Ministry or to high officials of the federal 
administration, and must authorize one of them to preside over 
the provisional Federal Ministry. This provision shall be duly 
applied if individual members of the Federal Ministry resign. 

Art. 72. (1) Before assuming office the members of the 
Federal Ministry shall take an oath before the Federal President. 

(2) The official commissions of the Federal Chancellor, the 
Vice-Chancellor and the other federal ministers shall be issued 
by the Federal President on the day on which they take the oath 
of office, and shall be countersigned by the newly commissioned 
Federal Chancellor. 

(3) These provisions shall also be duly applied to the cases 
enumerated in Article 71. 

Art. 73. In case of temporary disabiUty of a federal minister 
the Federal President shall authorize a federal minister or a high 
official of the federal administrative to represent this minister. 
This representative shall be under the same responsibility as a 
federal minister (Article 76). 

Art. 74. (1) If the Nationalrat by express resolution with- 
draws its confidence from the Federal Ministry, or from in- 
dividual members of it, the Federal Ministry or the federal 
minister in question is thereby removed from office. 



AUSTRIA 275 

(2) The presence of one-half of the members of the National- 
rat shall be required for a resolution of the Nationalrat by which 
confidence is withdrawn. On demand, however, of one-fifth 
of the members present, the vote must be postponed to 
the second week-day next following. A further postponement 
of the vote may take place only by resolution of the Nationalrat. 

(3) The Federal Ministry or its individual members shall be 
relieved of office by the Federal President in cases prescribed 
by law or upon their request. 

Art. 75. The members of the Federal Ministry as well as 
their deputies shall be authorized to participate in the delibera- 
tions of the Nationalrat, the Bundesrat, or the Bundesversamm- 
lung, as well as in the deliberations of the committees of these 
representative bodies; and, on special invitation, to participate 
in the deliberations of the main committee of the Nationalrat. 
At their request they must always be heard. The Nationalrat, 
the Bundesrat, or the Bundesversammlung as well as their com- 
mittees may demand the presence of the members of the Federal 
Ministry. 

Art. 76. (1) The members of the Federal Ministry (Articles 
69 and 71) shall be responsible to the Nationalrat in accordance 
with Article 142. 

(2) A resolution of impeachment in accordance with Article 
142 shall require the presence of more than one-half of the 
members. 

Art. 77. (1) The federal ministers and the officials subordi- 
nate to them shall be authorized to conduct the business of the 
federal administration. 

(2) The number of the federal ministers, their scope of au- 
thority, and the organization of their officers shall be prescribed 
by federal law. 

(3) The head of the federal chancellery shall be the Federal 
Chancellor and the head of each of the other federal offices shall 
be a federal minister. 

(4) The Federal Chancellor or any other federal minister 
may in exceptional cases be placed in charge of two federal 
offices. 

Art. 78. (1) In special cases federal ministers may be ap- 
pointed without at the same time being commissioned to take 
charge of a federal office. 

(2) Secretaries of state, who are chosen and relieved of office 
in the same manner as the federal ministers, shall be assigned 



276 NEW CONSTITUTIONS OF EUROPE 

to the federal ministers to assist them in their departmental and 
parhamentary duties. 

(3) The secretary of state shall be subordinate to the federal 
minister and shall be bound by his instructions. 

3. Federal Army 

Art. 79. (1) The federal army shall be entrusted with the 
protection of the frontiers of the Republic. 

(2) In so far as the lawful civil authorities require its coopera- 
tion, the army shall in general protect the constitutional in- 
stitutions, as well as maintain order and safety within the realm, 
and shall give relief in cases of disasters due to natural forces 
and of accidents of unusual gravity. 

Art. 80. (1) The Nationalrat shall have control over the 
army. In so far as immediate control is not reserved to the 
Nationalrat by the laws of national defence, the control shall 
be entrusted to the Federal Ministry, or to the competent 
federal minister, within the limits of the power conferred upon 
him by the Federal Ministry. 

(2) The laws of national defence shall prescribe to what 
extent the authorities of the states or the municipalities may 
demand directly the cooperation of the federal army for the pur- 
poses mentioned in Article 79, Paragraph 2. 

Art. 81. Federal law shall prescribe to what extent the states 
are to participate in recruiting, provisioning, and quartering the 
army and in granting subventions of other necessaries. 

B. The Administration of Justice 

Art. 82. (1) All jurisdiction emanates from the Federal 
State. 

(2) Judgments and decrees shall be pronounced and executed 
in the name of the Republic. 

Art. 83. (1) The constitution and jurisdiction of the courts 
shall be prescribed by federal law. 

(2) No one may be withdrawn from the jurisdiction of his 
regularly established court. 

(3) Extraordinary courts shall be permissible only in cases 
prescribed by the laws concerning the procedure in criminal 
matters. 

Art. 84. Military jurisdiction shall be abolished except in 
time of war. 



AUSTRIA 277 

Art. 85. Capital punishment in ordinary procedure shall 
be abolished. 

Art. 86. (1) Except as otherwise provided by this law the 
judges shall be appointed upon nomination of the Federal Min- 
istry by the Federal President, or by the competent federal 
minister, upon authorization of the Federal President. The 
Federal Ministry or the federal minister shall request the senates 
(Senate) provided for by the constitution of the courts to sub- 
mit proposals for appointment. 

(2) The proposal for appointment, submitted to the com- 
petent federal minister and forwarded by him to the Federal 
Ministry, shall comprise, if there be a sufficient number of 
applicants, at least three names, and, if more than one position 
is to be filled, at least twice as many names as there are judges 
to be appointed. 

Art. 87. (1) Judges shall be independent in the exercise of 
their judicial functions. 

(2) A judge shall be regarded as exercising his judicial func- 
tions when he conducts all judicial business entrusted to him by 
law or by assignment of business, with the exception of such 
matters of judicial administration as may not be discharged, in 
accordance with prescriptions of the law, through senates or 
commissions. 

(3) Business shall be assigned in advance among the judges 
of a court for a term designated by the constitution of the courts. 
Any matter thus assigned to a judge may be removed from his 
jurisdiction by decree of the administration of justice only in 
case of his disability. 

Art. 88. (1) An age limit shall be fixed by the constitution 
of the courts upon the attainment of which judges shall be 
permanently retired. 

(2) In all other cases judges may be removed from office, or 
against their will transferred to another position or retired, only 
by a formal judicial decision and only in the cases and according 
to the forms prescribed by law. These provisions, however, 
shall not apply to transfers or retirements which become neces- 
sary through changes in the constitution of the courts. In 
such cases the law shall prescribe within what period of time 
judges may be transferred or retired without the formahties 
otherwise prescribed. 

(3) Temporary removal of judges from office may take place 
only by decree of the president of the court or of the superior 



278 NEW CONSTITUTIONS OF EUROPE 

judicial authority with the simultaneous reference of the matter 
to the competent court. 

Art. 89. (1) The courts shall not have power to examine 
into the validity of laws duly proclaimed. 

(2) If a court, on the ground of its being illegal, questions 
whether an ordinance governs a case, it shall suspend the pro- 
ceedings and submit an application to the Supreme Constitu- 
tional Court for its annulment. 

Art. 90. (1) Hearings or proceedings in civil or criminal 
cases before the court authorized to pass judgment shall be oral 
and public. Exceptions may be prescribed by law. 

(2) In criminal procedure the indictment process shall apply. 

Art. 91. (1) The people shall participate in the rendering of 
judgments. 

(2) In case of crimes punishable by severe penalties — which 
crimes shall be described by law — and in case of all political 
crimes and misdemeanors, the jury shall render the verdict as 
to the guilt of the accused person. 

(3) In criminal procedure for other penal offences lay judges 
(Schoffen) shall participate in the rendering of judgments, if the 
penalty to be imposed exceeds a limit to be prescribed by law. 

Art. 92. The Supreme Judicial Court in Vienna shall be 
the highest court of appeal in civil and criminal cases. 

Art. 93. Amnesties on account of legally criminal acts may 
be granted by federal law. 

Art. 94. (1) The administration of justice shall be separated 
from the administration in every instance. 

(2) If an administrative authority has to decide upon private 
claims, the party aggrieved by such decision shall be given a 
remedy against the other party by regular legal process, pro- 
vided there is no legal provision to the contrary. 

(3) In matters concerning land reform (Article 12, Paragraph 
1, Clause F) the commissions consisting of judges, administra- 
tive officials, and experts shall have the exclusive right of de- 
cision. 

CHAPTER IV 

The Legislative and Executive Power of the States 

A. General Provisions 

Art. 95. (l) The legislative power of the states shall be exer- 
cised by the Landtags. Their members shall be elected in 



AUSTRIA 279 

accordance with the principle of proportional representation by 
the equal, direct, secret, and personal suffrage of all Austrian 
citizens of both sexes, who are qualified to vote according to 
the regulations for elections to the Landtags and who have their 
domicile in the state. 

(2) In the regulations for elections to the Landtags limitations 
upon the right to vote or to be elected may not be more re- 
stricted than in the regulations for election to the Nationalrat. 

(3) The voters shall exercise their suffrages in election dis- 
tricts, which must consist of contiguous territory. The number 
of deputies must be apportioned among the election districts 
on the basis of the number of their citizens. A division of the 
voters in other electoral bodies shall not be permissible. 

Art. 96. (1) Members of the Landtags shall enjoy the same 
immunity as the members of the Nationalrat. The provisions 
of Article 57 shall be duly applied. 

(2) The provisions of Articles 32 and 33 shall apply also to 
the sittings of the Landtags and their committees. 

Art. 97. (1) A state law shall require for its validity enact- 
ment by the Landtag, authentication and countersignature in 
accordance with the provisions of the state constitution, and 
publication by the chief executive officer of the state {Landes- 
hauptmann) in the State Law Gazette. 

(2) In so far as a state law provides for the participation of 
the federal authorities in its execution, the consent of the Federal 
Ministry must be obtained for this participation. Before this 
consent is obtained, the law may not be published. 

Art. 98. (1) All laws enacted by the Landtags must be com- 
municated to the competent federal minister by the chief execu- 
tive officer of the state immediately after their enactment by 
the Landtag and before their publication. 

(2) Within eight weeks after the day on which the law en- 
acted by a Landtag has been filed at the office of the competent 
federal minister, the Federal Ministry may interpose a veto, 
supported by reasons, on the ground that the enacted law 
endangers federal interests. In that event the enacted law may 
be published only if the Landtag in the presence of at least one- 
half of its members reenacts the law. 

(3) Before the expiration of the time allowed for interposing 
a veto, publication shall be permissible only with the express 
consent of the Federal Ministry. 

Art. 99. (1) A state constitution, enacted by state law, may 



280 NEW CONSTITUTIONS OF EUROPE 

be amended by state law in so far as the federal constitution is 
not affected thereby. 

(2) A state constitutional law may be enacted only in the 
presence of one-half of the members of the Landtag and by a 
majority of two-thirds of the votes cast. 

Art. 100. (1) Every Landtag may be dissolved by the Fed- 
eral President on the demand of the Federal Ministry and with 
the consent of the Bundesrat. The consenting vote of the 
Bundesrat requires the presence of one-half of the members and 
a majority of two-thirds of the votes cast. The representatives 
of the Landtag to be dissolved may not participate in the vote. 

(2) In case of dissolution writs of election must, according to 
the provisions of the state constitution, be issued within three 
weeks. The newly elected Landtag must be called together 
within four weeks after the election. 

Art. 101. (1) The executive power of each state shall be 
exercised by a state ministry to be elected by the Landtag. 

(2) The members of the state ministry need not be members 
of the Landtag. However, only persons eligible to the Landtag 
may be elected members of the state ministry. 

(3) A state ministry shall consist of the chief executive officer 
of the state, the necessary number of deputies, and other mem- 
bers. 

(4) On assuming office the chief executive officer of the state 
shall take an oath before the Federal President to support the 
federal constitution, and likewise the other members of the state 
ministry shall take the same oath before the chief executive of- 
ficer of the state. 

Art. 102. (1) Within the states the executive power of the 
Federal State shall be exercised — in so far as no federal authori- 
ties exist (direct federal administration) — by the chief executive 
officer of the state and the state authorities subordinate to him 
(indirect federal administration). 

(2) The following matters may be administered directly by 
federal authorities within their constitutional sphere of ac- 
tion : 

Marking out of boundaries, traffic in goods and live stock with 
foreign countries, customs, federal finances, monopolies, meas- 
ures, weights, standards and assaying, technical experiments, 
administration of justice, commerce and industry, patents, 
protection of patterns, trademarks, and other commercial 
designations, engineering and consulting engineering, traffic, 



AUSTRIA 281 

federal highways, pohce authority over watercourses and navi- 
gation, posts, telegraphs and telephones, mining, regulation and 
maintenance of waters, construction and maintenance of water- 
ways, hydrographic service, surveying, labor law, protection 
of workers and other employees, social insurance, protection of 
monuments, federal police, federal gendarmerie, military affairs, 
care of discharged soldiers and their dependents. 

(3) The Federal State shall have power to commission the 
chief executive officer of the state with the executive power of 
the Federal State in the matters enumerated in Paragraph 2. 

(4) The extension of federal administrative authority over 
matters other than those enumerated in Paragraph 2 may take 
place only with the consent of the states affected thereby. 

(5) The federal law, mentioned in Article 120, Paragraph 1, 
shall prescribe to what extent the chief executive officers of the 
states may have authority over the federal police and the federal 
gendarmerie. 

Art. 103. The chief executive officer of the state shall be 
bound by the directions of the Federal Ministry and the individ- 
ual federal ministers in matters of indirect federal administra- 
tion. Administrative appeal in such matters shall, unless 
otherwise expressly provided by federal law, extend to the 
competent federal ministers. 

Art. 104. The provisions of Article 102 shall not be applied 
to agencies created to administer the business of the Federal 
State referred to in Article 17. 

Art. 105. (1) The chief executive officer of the state shall 
represent the state. In matters of indirect federal administra- 
tion he shall be responsible to the Federal Ministry in accor- 
dance with Article 142. This responsibility may be asserted 
notwithstanding any immunity. 

(2) The members of the state ministry shall be responsible to 
the Landtag in accordance with Article 142. 

(3) A resolution of impeachment in accordance with Article 
142 shall require the presence of one-half of the members. 

Art. 106. An administrative official, legally trained, shall be 
commissioned as Landesamtsdirektor to direct administrative 
services of the state government. He shall also be the assistant 
to the chief executive officer of the state in matters of indirect 
federal administration. 

Art. 107. The states may reach agreements among them- 
selves only concerning matters within their autonomous sphere 



282 NEW CONSTITUTIONS OF EUROPE 

of action and must communicate the same immediately to the 
Federal Ministry. 

B. The Federal Capital Vienna, and the State of Lower Austria 

Art. 108. (1) The Landtag of Lower Austria is divided into 
two curiae (Kurien). The one curia (state curia) shall consist 
of the deputies elected by the state exclusive of Vienna. The 
election of the other curia (city curia) shall be regulated by 
the constitution of the federal capital, Vienna. 

(2) The number of deputies must be divided between the two 
curiae in proportion to the number of citizens. 

Art. 109. The two curiae shall meet as the Landtag of 
Lower Austria to exercise the power of legislation in all such 
matters pertaining to the formerly autonomous provincial ad- 
ministration as may be declared common to both by their com- 
mon state constitution. Among such matters shall be particu- 
larly the common state constitution itself. 

Art. 110. (1) In all matters not common to both, each of the 
two divisions of the state shall have the status of an autonomous 
state. 

(2) In such matters the municipal council of the city of Vienna 
shall have for Vienna the status of a Landtag, and the state 
curia shall have for the state of Lower Austria the status of a 
Landtag. The provisions of Article 57 shall be applicable to 
members of the municipal council of Vienna. 

Art. 111. (1) The constitutions of the two divisions of the 
state as well as the election of members to the Bundesrat (Article 
35) shall not be among the matters common to both. 

(2) Likewise, in so far as it is within the sphere of action of 
the states, the power of legislation in respect to taxes shall be 
exercised separately by the municipal council of Vienna and the 
Landtag (state curia). 

(3) Their common state constitution shall regulate in what 
manner the expenses for matters common to both shall be met. 

Art. 112. The general provisions of this chapter shall apply 
to both divisions of the state. In regard to Vienna the Biirger- 
meister elected by the municipal council shall have the same 
status as the chief executive officer of a state; the city senate 
(Stadtsenai) elected by the municipal council shall have the 
status of a state ministry; and the Magistratsdirektor shall have 
the status of a Landesamtsdirektor. 



AUSTRIA 283 

Art. 113. (1) Matters common to both shall be adminis- 
tered by an administrative commission elected by the Landtag 
of Lower Austria from among its members in accordance with 
the principles of proportional representation. 

(2) The Biirgermeister of the city of Vienna and the chief 
executive officer of the state of Lower Austria shall be 
members of the administrative commission and shall preside 
alternately. 

Art. 114. A separate state of Vienna may be formed 
by concurrent laws of the municipal council of Vienna and the 
Landtag of the state of Lower Austria. 

C. The Municipalities (Gemeinden) 

Art. 115. General public administration in the states shall, 
in accordance with the following provisions, be organized on the 
basis of local self-government. 

Art. 116. (1) Administrative districts and units of local 
self-government into which the states are divided shall be the 
local municipalities (Orisgemeinden) and the district municipali- 
ties (Gebietsgemeinden) . 

(2) The local municipalities shall be subordinate to the dis- 
trict municipalities and the latter shall be subordinate to the 
states. 

Art. 117. (1) Local municipalities of more than 20,000 in- 
habitants shall at their request be declared district municipali- 
ties. In such local municipalities district administration shall 
be consolidated with municipal administration. 

(2) Cities heretofore governed under their own charters shall 
be district municipalities. 

Art. 118. The local municipalities and district municipalities 
shall be also autonomous economic units. They shall have the 
right to own and acquire property of any description and to dis- 
pose thereof within the limits of federal and state law, to engage 
in economic enterprises, to prepare and carry out their inde- 
pendent budgets, and to collect taxes. 

Art. 119. (1) The agencies of the local municipality shall be 
the local municipal council and the local municipal administra- 
tion (Ortsgemeindeamt) ; the agencies of the district municipality 
shall be the district municipal council and the district municipal 
administration {Gehietsgemeindeamt) . 

(2) Elections to all municipal councils shall take place in 



284 NEW CONSTITUTIONS OF EUROrE 

accordance with the principles of proportional representation 
and by the equal, direct, secret, and personal suffrage of all 
Austrian citizens who have their domicile within the territorial 
jurisdiction of the municipal council to be elected. The legisla- 
tive bodies of the states shall issue the election regulations. In 
these election regulations the limitations upon the right to vote 
or to be elected may not be more restricted than in the regula- 
tions for elections to the Landtag. The election regulations may 
prescribe that the voters shall exercise their suffrages in elec- 
tion districts which must be contiguous. A division of the 
voters into other electoral bodies shall not be permissible. For 
elections of the territorial municipal council the judicial dis- 
trict shall be the election district. The number of deputies 
must be apportioned among the election districts on the basis of 
the number of citizens. 

(3) Only persons who have their domicile in the district muni- 
cipality and who are eligible for election to the Landtag may 
be elected members of the district municipal council. 

(4) The municipal councils may, in accordance with the prin- 
ciples of proportional representation, elect from among their 
members, for the different branches of administration, special 
administrative committees, which may, in so far as definite pro- 
fessional interest or groups are concerned, be enlarged by the 
admission of representatives of such professional interest or 
groups. 

(5) The director of the district municipal administration 
must be a legally trained administrative official. 

Art. 120. (1) Additional fundamental principles for the 
organization of general public administration in the states shall 
be prescribed by federal constitutional law in accordance with 
Articles 115-119. Supplementary laws shall be enacted by the 
states. 

(2) Federal and state laws respectively shall, within their 
scope of authority as defined by the constitution, determine 
what matters of administration, as to subject matter and ad- 
ministrative organization, shall be administered by represen- 
tative assemblies, administrative committees, and administra- 
tive officials respectively. 

(3) The local municipalities, however, shall be guaranteed 
scope of authority as to original jurisdiction in respect to the 
following matters: 

(a) Security of person and property (local security police). 



AUSTRIA 285 

(b) First aid and life saving. 

(c) Maintenance of streets, roads, public squares, and 
bridges of the municipality. 

(d) Local street police. 

(e) Protection and policing of the fields. 

(f) Market and food police. 

(g) Sanitary police. 

(h) Building and fire police. 



CHAPTER V 

Control over the Expenditures of the Federal State 

Art. 121. (1) An Independent Court of Audit shall be em- 
powered to examine the expenditures of each and every agency 
of the Federal State as well as the expenditures of the endow- 
ments, foundations, and institutions administered by agencies 
of the Federal State, It may also be entrusted with the ex- 
amination of expenditures of enterprises in which the Federal 
State is financially interested. 

(2) The Independent Court of Audit shall draft the balance 
sheet of the federal budget and present it to the Nationalrat. 

(3) All documents concerning debts of the State (financial 
and administrative debts) must, in so far as they authenticate 
a liability of the Federal State, be countersigned by the President 
of the Independent Court of Audit. Such countersignature 
certifies only the legality of the expenditure and its correctness 
as to accounting. 

Art. 122. (1) The Independent Court of Audit shall be di- 
rectly subordinate to the Nationalrat. 

(2) The Independent Court of Audit shall consist of a presi- 
dent and the necessary officials and employees. 

(3) The president of the Independent Court of Audit shall 
be elected by the Nationalrat on nomination by the main com- 
mittee. 

(4) The president of the Independent Court of Audit may not 
be a member of any general representative body and may not 
have been a member of the Federal Ministry or any state minis- 
try within the last five years. 

Art. 123. (1) In respect to responsibility the president of the 
Independent Court of Audit shall have the same status as mem- 
bers of the Federal Ministry. 



286 NEW CONSTITUTIONS OF EUROPE 

(2) He may be relieved of office by resolution of the National- 
rat. 

Art. 124. (1) The president shall be represented by the 
official of the Independent Court of Audit who is next highest 
in rank. 

(2) In case of representation of the president, the provisions 
of Article 123 shall apply to his representative. 

Art. 125. (1) The Federal President shall appoint the offi- 
cials of the Independent Court of Audit on nomination by, and 
with the countersignature of, the president of the Independent 
Court of Audit; the same shall apply to the conferring of titles 
of office. The Federal President, however, may empower the 
president of the Independent Court of Audit to appoint officials 
of certain classes. 

(2) The president of the Independent Court of Audit shall 
appoint its employees. 

Art. 126. No member of the Independent Court of Audit 
may take part in the direction or administration of enterprises 
which must render an account to the Federal State or to the 
states or which receive a subvention from, or have a contract 
with the Federal State or a state, except enterprises the exclu- 
sive object of which is the advancement of humanitarian en- 
deavors or the betterment of the economic conditions of public 
employees or their dependents. 

Art. 127. In regard to the expenditures of a state the con- 
stitutional laws of a state may assign to the Independent Court 
of Audit the same functions as are conferred upon it by this 
law in regard to the expenditures of the Federal State. 

Art. 128. Detailed regulations concerning the activities of 
the Independent Court of Audit shall be prescribed by federal 
law, 

CHAPTER VI 

Constitutional and Administrative Guarantees 
A. The Supreme Administrative Court 

Art. 129. (1) Any person who claims to have been aggrieved 
by an erroneous decision or decree of an administrative authority 
may, after having exhausted his administrative appeals, take 
his complaint to the Supreme Administrative Court. 

(2) If, in matters referred to in Articles 11 and 12, the com- 



AUSTRIA 287 

petent federal minister considers the interests of the Federal 
State injured by an erroneous decision or decree of an authority 
of a state he also may, in the name of the Federal State, take his 
complaint against such violation of law before the Supreme Ad- 
ministrative Court. 

(3) A \nolation of law does not exist, in so far as an adminis- 
trative authority has been empowered by the provisions of the 
law to render a discretionary decision or decree and has exer- 
cised such discretion within the meaning of the law. 

Art. 130. In matters concerning which complaints may be 
taken to the Supreme Administrative Court, administrative 
appeals may be shortened by federal or state law in accordance 
with the provisions of Articles 10-15 determining spheres of 
authority. 

Art. 131. From the jurisdiction of the Supreme Administra- 
tive Court are excluded any matters : 

(a) which fall within the jurisdiction of the Supreme Con- 
stitutional Court; 

(b) which fall within the jurisdiction of the ordinary courts; 

(c) which are to be decided or decreed by a collegiate au- 
thority, which, whether acting in an inferior or superior ca- 
pacity, shall have among its members at least one judge. 
Art. 132. Every senate (Senat) of the Supreme Administra- 
tive Court which renders judgment upon an appeal from a 
decision or decree of an administrative authority of a state shall 
as a rule have among its members a judge who formerly be- 
longed to the judicial or administrative service of that state. 

Art. 133. (1) A judgment of reversal by the Supreme Ad- 
ministrative Court operates to set aside an erroneous decision 
or decree. 

(2) The Administrative authorities when rendering a new 
decision or decree are bound by the judicial opinion of the 
Supreme Administrative Court. 

(3) The Supreme Administrative Court may itself determine 
a matter in so far as the administrative authority is not, in 
accordance with the provisions of the law, empowered to decide 
such matter at its own discretion. 

Art. 134. (1) The Supreme Administrative Court shall have 
its seat in the federal capital, Vienna. 

(2) It shall consist of a president, a vice-president, and the 
necessary number of senate presidents (Senatsprdsidenten) and 
counselors. 



288 NEW CONSTITUTIONS OF EUROPE 

(3) At least one-half of the members must have the qualifica- 
tions for the oflSce of judge. 

Art. 135. The president, the vice-president and the members 
of the Supreme Administrative Court shall be appointed by 
the Federal President upon nomination by the Federal Minis- 
try. The nomination by the Federal Ministry shall require, 
for the president and one-half of the members, the assent of the 
main committee of the Nationalrat; for the vice-president and 
the other half of the members, the assent of the Bundesrat. 

Art. 136. The administrative jurisdiction and the organiza- 
tion of the Supreme Administrative Court shall be regulated by 
federal law. 

B. The Supreme Constitutional Court 

Art. 137. The Supreme Constitutional Court shall render 
judgment upon all claims against the Federal State, the states, 
or the municipalities, which cannot be brought before the regular 
courts. 

Art. 138. The Supreme Constitutional Court shall also ren- 
der judgment upon conflicts of jurisdiction : 

(a) between courts and administrative authorities; 

(b) between the Supreme Administrative Court and the 
courts, and in particular between the Supreme Administra- 
tive Court and the Supreme Constitutional Court itself; 

(c) between the states themselves, as well as between a 
state and the Federal State. 

Art. 139. (1) The Supreme Constitutional Court shall ren- 
der judgment upon the illegality of ordinances of a federal or 
state authority on the application of a court; but if such an 
ordinance shall constitute the basis of a judgment of the Supreme 
Constitutional Court, it may render judgment on its own respon- 
sibility. 

It shall also render judgment upon the illegality of ordinances 
of a state authority on application of the Federal Ministry. It 
shall also render judgment upon the illegality of ordinances of 
a federal authority on application of a state ministry. 

(2) The judgment of the Supreme Constitutional Court, by 
which an ordinance is annulled as being illegal, shall obligate 
the competent authority to publish the annulment immediately. 
The annulment shall become effective on the day of publication. 

Art. 140. (1) The Supreme Constitutional Court shall render 



AUSTRIA 289 

judgment, on application of the Federal Ministry, upon the un- 
constitutionality of state laws; on application of a state minis- 
try, upon the unconstitutionality of federal laws; but if such 
a law constitutes the basis of a judgment of the Supreme Consti- 
tutional Court, it may render judgment upon its own responsi- 
bility. 

(2) The application mentioned in Paragraph 1 may be made 
at any time; the ministry that makes the application must 
communicate it immediately to the competent state ministry or 
the Federal Ministry, as the case may be. 

(3) The judgment of the Supreme Constitutional Court by 
which a law is annulled as being unconstitutional, shall obligate 
the Federal Chancellor or the competent chief executive oflBcer 
of a state to publish the annulment immediately; the annulment 
shall become effective on the day of the publication, unless the 
Supreme Constitutional Court determines a period of time at 
the expiration of which the annulment shall become effective. 
This period of time may not exceed six months. 

(4) The provision of Article 89, Paragraph 1, shall not apply 
to the examination into the constitutionality of laws by the 
Supreme Constitutional Court. 

Art. 141. The Supreme Constitutional Court shall render 
judgment concerning contested elections to the Nationalrat, to 
the Bundesrat, to the Landtags, or to any other general represen- 
tative body; and on application of one of these representative 
bodies, it shall render judgment in respect to the declaration 
that one of its members has lost his seat. 

Art. 142. (1) The Supreme Constitutional Court shall render 
judgment in impeachment proceedings to determine the con- 
stitutional responsibility of the highest federal or state authori- 
ties for wrongful violations of law in the exercise of their offices. 

(2) Impeachment proceedings may be brought: 

(a) against the Federal President on account of viola- 

tion of the federal constitution: by resolution of 
the Bundesversammlung. 

(b) against members of the Federal Ministry, or those 

authorities having the same status in regard to 
responsibility, on account of violation of a law: 
by resolution of the Nationalrat. 

(c) against members of a state ministry, or those au- 

thorities having according to a state constitu- 
tion the same status in regard to responsibility, 



290 NEW CONSTITUTIONS OF EUROPE 

on account of violation of a law: by resolution 
of the competent Landtag; 
(d) against the chief executive oflBcer of a state on ac- 
count of violation of a law, as well as non- 
compliance with the ordinances or other decrees 
of the Federal Ministry in matters of indirect 
federal administration: by resolution of the 
Federal Ministry. 
(3) Judgment by the Supreme Constitutional Court pro- 
nouncing a conviction shall decree loss of office, and under 
specially aggravating circumstances, temporary loss of political 
rights; in the event of minor violations of law in the cases 
mentioned in Paragraph 2, Clause D, the Supreme Constitu- 
tional Court may limit itself to pronouncing that a violation 
of law exists. 

Art. 143, Impeachment proceedings against the persons 
enumerated in Article 142 may also be brought on account of 
penal oflFences connected with the official activities of the ac- 
cused. In such case only the Supreme Constitutional Court 
shall be competent; the proceedings pending in the regular 
criminal courts shall be transferred to it. In such cases the 
Supreme Constitutional Court may also apply, in addition to 
Article 142, Paragraph 3, the provisions of the criminal law. 

Art. 144. (1) The Supreme Constitutional Court shall decide 
in respect to complaints of a violation of constitutionally guaran- 
teed rights by reason of a decision or a decree of an administra- 
tive authority, after administrative appeals have been ex- 
hausted. 

(2) A judgment of reversal by the Supreme Constitutional 
Court operates to set aside an unconstitutional decision or decree. 
The authorities when rendering a new decision or decree are bound 
by the judicial opinion of the Supreme Constitutional Court. 

Art, 145. The Supreme Constitutional Court shall render 
judgment upon violations of international law in accordance 
with the provisions of a special federal law. 

Art. 146. The Federal President shall execute the judgments 
of the Supreme Constitutional Court. 

Art. 147. (1) The Supreme Constitutional Court shall have 
its seat in Vienna. 

(2) It shall consist of a president, a vice-president, and the 
necessary number of members and substitute members, 

(3) The president, the vice-president, and one-half of the 



AUSTRIA 291 

members and substitute members shall be elected for life by the 
Nationalrat; the other half of the members and substitute mem- 
bers shall be elected for life by the Bundesrat. 

Art. 148. The detailed organization and the procedure of 
the Supreme Constitutional Court shall be regulated by federal 
law. 

CHAPTER VII 

Concluding Provisions 

Art. 149. (1) In addition to this law [the federal constitu- 
tion] the following laws shall, within the meaning of Article 
44, Paragraph 1, be regarded as constitutional laws with due 
consideration for the changes necessitated by this law; 

Fundamental Law of the State, of December 21, 1867, Na- 
tional Law Gazette, No. 142, concerning the general rights of 
citizens for the kingdoms and territories represented in the 
Reichsrat. 

Law of October 27, 1862, National Law Gazette, No. 87, for 
the protection of personal liberty. 

Law of October 27, 1862, National Law Gazette, No. 88, 
for the protection of the inviolability of the home. 

Resolution of the provisional Constituent Assembly of 
October 30, 1918, State Law Gazette No. 3. 

Law of April 3, 1919, State Law Gazette, No. 209, concern- 
ing the expulsion and the taking over of the property of the 
house of Hapsburg-Lorraine. 

Law of April 3, 1919, State Law Gazette, No. 211, concern- 
ing the abolition of the nobility, of the secular orders of 
knights or of ladies, and certain titles and honors. 

Law of May 8, 1919, State Law Gazette, No. 257, concerning 
the coat of arms and the Seal of State of the Republic of Ger- 
man Austria with the changes effected by Articles 2, 5, and 
6 of the Law of October 21, 1919, State Law Gazette, No. 484. 
Section V of Part III of the Treaty of St. Germain, of Sep- 
tember 10, 1919, State Law Gazette, 1920, No. 303. 
(2) Article 20 of the Fundamental Law of the State of Decem- 
ber 21, 1867, National Law Gazette, No. 142, as well as the Law 
of May 5, 1869, National Law Gazette, No. 66, promulgated by 
reason of the aforementioned Article, shall cease to be in force. 
Art. 150. The transition to this constitution of the Federal 
State shall be regulated by a special constitutional law, which 
shall become effective at the same time as this law. 



292 NEW CONSTITUTIONS OF EUROPE 

Art. 151. (1) This law shall become efiFective on the day of 
the first sitting of the Nationalrat, except as otherwise provided 
by the law referred to in Article 150. 

(2) The provisions, however, of Article 50, Paragraph 1, and 
of Article 66, Paragraph 2 shall become effective on the day 
of publication; and thereupon, until the other provisions of this 
law come into force, the power of ratification shall be exercised 
by the Constituent Assembly instead of the Nationalrat. 

Art. 152. The execution of this law shall be entrusted to 
the Ministry of the State. 

Seitz, m. p. 
Mayr, m. p. Haueis, m. p. 

Hanusch, m. p. Deutsch, m. p. 

Renneb, m. p. Ellenbogen, m. p. 

Breisky, m. p. Roller, m. p. 

Reisch, m. p. Pesta, m. p. 

Heinl, m. p. Grunberger, m. p. 



CONSTITUTIONAL LAW OF OCTOBER 1, 1920, 
CONCERNING THE TRANSITION TO THE 
CONSTITUTION OF THE FEDERAL STATE 

The Constituent Assembly has resolved: 

I. General Provisions 

Section 1. All laws and executive directions (ordinances) of 
the State^ — including such imperial laws of the former State of 
Austria as have been put in force for the Republic in accordance 
with Section 16 of the resolution of October 30, 1918, State Law 
Gazette, No. 1, concerning the fundamental organization of po- 
litical power — as well as all laws and executive directions (or- 
dinances) of the states shall continue to be in force, in so far 
as they are not in conflict with the provisions of the law of Oc- 
tober 1, 1920, State Law Gazette, No. 450, whereby the Republic 
of Austria is established as a Federal State (federal constitution). 

Sec. 2. In the matters enumerated in Articles 10 and 11 of 
the federal constitution, the laws of the State, including the 
former imperial laws, as well as the laws of the states — these 

1" Staat " as used in this transitional law is translated " State " and is capital- 
ized. It refers to the State of German-Austria between the fall of the Empire 
in 1918 and the creation of the Federal State by this constitution. 



AUSTRIA 293 

latter for the state in which they were enacted — shall become 
federal laws within the meaning of the federal constitution. 

Sec. 3. (1) The laws of the states regulating the matters 
enumerated in Article 12 of the federal constitution shall con- 
tinue to be laws of the states within the meaning of the federal 
constitution. But as soon as fundamental principles have been 
prescribed by federal law in respect to these matters, such laws 
of the states must be amended in accordance with Article 15, 
Paragraph 2, within the terms prescribed by federal law. 

(2) If, however, the matters enumerated in Article 12 have 
been regulated entirely by laws of the State, including former 
imperial laws, any such law shall continue to be in force as a 
federal law for a period of three years computed from the date 
fixed in Section 42, Paragraph 1, of this law, unless it has been 
previously abolished by a federal law regulating the same matter 
within the meaning of Article 12. At the expiration of these 
three years such laws shall cease to be in force; thereupon state 
legislation may freely regulate such a matter as long as the Fed- 
eral State does not exercise the power of legislation conferred 
upon it by Article 12. 

Sec. 4. (1) Laws of the states concerning matters in which 
the states, according to Article 15, Paragraph 1, of the federal 
constitution, have the exclusive power of legislation, shall con- 
tinue to be laws of the states within the meaning of the federal 
constitution. 

(2) In so far as such matters have been regulated hitherto by 
laws of the State, including former imperial laws, such laws shall 
be considered in every state as laws of the state within the 
meaning of the federal constitution. 

Sec. 5. The provisions of Sections 2-4 [of this transitional 
law] concerning laws shall apply as far as may be, to executive 
directions (ordinances) enacted pursuant to these laws. 

Sec. 6. (1) In so far as the laws and the executive directions 
(ordinances) referred to in Section 1 [of this transitional law] 
are in conflict with the provisions of the federal constitution 
regulating organization — especially those concerning the com- 
petence and organization of the authorities as well as their 
character as federal or state authorities — they shall be consid- 
ered as amended in accordance with the meaning of the federal 
constitution. Particularly in matters in which the states shall 
henceforth exercise the power of execution, appeal shall not lie 
beyond the state. 



294 NEW CONSTITUTIONS OF EUROPE 

('2) In so far as doubts arise by reason of this rule of construc- 
tion, the Federal Ministry or the competent State Ministry, 
according to the provisions of the federal constitutional regulat- 
ing competence, shall regulate such matters by ordinance until 
the enactment of a law within the meaning of the federal con- 
stitution. 

Sec. 7. (1) The powers hitherto conferred by law on the 
agencies of the State or the states shall be taken over by the 
agencies of the Federal State or the states who are authorized 
to exercise analogous authority, in so far as the competence 
of these agencies has not been otherwise regulated by the federal 
constitution. Accordingly the Nationalrat shall take the place 
of the Constituent Assembly; the Federal President shall take 
the place of the President of the Constituent Assembly in so 
far as matters of government were entrusted to the latter; the 
Federal Ministry shall take the place of the Ministry of the 
State; the federal ministers shall take the place of the secretaries 
of state; the secretaries of state shall take the place of the 
under-secretaries of state; the Independent Court of Audit 
shall take the place of the Independent Court of Audit of the 
State. 

(2) The Federal Ministry as well as the individual federal 
ministers shall take over the powers vested in the Ministry by 
the law of July 24, 1917, National Law Gazette, No. 307, by 
which the Ministry was authorized to take in regard to economic 
problems measures necessitated by the extraordinary conditions 
due to the state of war. 

Sec. 8. (1) The authorities of the State — exclusive of those 
of general political administration in the states (state ministries, 
chief authorities of the districts [Bezirkshaiiptmannsckaften]), 
including therein the special branches of service attached to 
these authorities (construction and forestry, public health, 
veterinary service, archives and libraries, audit) and the agricul- 
tural authorities of original and appellate jurisdiction (district 
agricultural authorities and state agricultural authorities) — 
shall become federal authorities. 

(2) The status of such authorities of the State as are excepted 
by Paragraph 1 shall be regulated by the federal constitutional 
law concerning the organization of administration in the states 
(Article 12, Paragraph 1, and Article 120, Paragraph 1, of the 
federal constitution) . 

(3) The hitherto autonomous administrative authorities of 



AUSTRIA 295 

the states shall become authorities (officials) of the states within 
the meaning of the federal constitution. 

(4) The institutions of the State shall be taken over by the 
Federal State; the institutions of the states shall be institutions 
of the states; the institutions of the districts, the municipalities, 
or other public corporations shall be institutions of these corpora- 
tions. 

Sec. 9. (1) The employees of the authorities of the State 
that become federal authorities in accordance with Section 8, 
Paragraph 1 [of this transitional law], shall become federal 
employees. 

(2) The status of employees of such authorities of the State 
as are excepted in Section 8, Paragraph 1 [of this transitional 
law], shall be regulated in connection with the federal constitu- 
tional law concerning the organization of administration in the 
states. 

Sec. 10. (1) The existing police authorities of the State shall 
become federal authorities and shall administer their previous 
functions as functions of the Federal State. 

(2) The existing gendarmerie shall be the federal gendarmerie. 

Sec. 11. (1) Properties, including funds and institutions, be- 
longing to, or administered by, the states in their capacity as 
formerly autonomous corporations, shall be properties of the 
states or shall be taken over by the administration of the states 
within the meaning of the Federal Constitution. In respect, 
however, to school funds administered by the states, the prevail- 
ing conditions shall continue until the promulgation of the 
federal constitutional law concerning the spheres of competence 
of the Federal State and the states in matters pertaining to 
schools, education, and popular instruction (Article 14 of the 
federal constitution). 

(2) The entire remaining property of the State shall be fed- 
eral property; the final settlement in regard to the property of 
the State shall be regulated by the federal constitutional law con- 
cerning the financial settlement between the Federal State and 
the states. 

II. Provisions in Regard to Special Articles of 
THE Federal Constitutional Law 

Sec. 12, in regard to Article 2. 

(1) As soon as it has manifested its intention, Burgenland 



296 NEW CONSTITUTIONS OF EUROPE 

shall be incorporated in the Federal State as an autonomous 
state having equal rights with the other states. 

(2) Detailed regulations concerning the status of Burgenland 
in the Federal State as an autonomous state, having equal rights 
with the other states, shall be prescribed by special federal con- 
stitutional law. 

Sec. 13, in regard to Article 4. 

(1) Restrictions on or interference with interstate or intra- 
state passenger or freight traffic shall be permissible only as long 
as the extraordinary conditions mentioned in Article 10, Para- 
graph 15, continue (Section 17 of this transitional law), and 
may be enacted only by the Federal State. 

(2) Existing restrictions on traffic, not imposed by the State, 
shall cease to be in force no later than June 30, 1921, unless 
they have been approved by the State or have been subsequently 
approved by the Federal State. 

Sec. 14, in regard to Article 6. 

(1) Every citizen of the Republic shall be a citizen of the 
state of which his native municipal district is a part and shall be 
at the same time a citizen of the Federal State. 

(2) Persons being Austrian citizens without having domicili- 
ary rights {Heimatrecht) in any municipality of the Republic 
shall be citizens of the Federal State. Federal law shall pre- 
scribe in what municipality they may acquire domiciliary rights 
and thereby the prerequisites for citizenship in a state. The 
Federal State shall have regulatory powers in respect to persons 
who, without having obtained domiciliary rights, have acquired 
national citizenship through option by virtue of the Treaty of 
St. Germain, or by virtue of a simple declaration in accordance 
with Section 2 of the Law of December 5, 1918, State Law 
Gazette, No. 91, concerning the right of national citizenship. 

Sec. 15, in regard to Article 10, Paragraph 9. 

Until the promulgation of the federal law provided for 
in Article 10, Paragraph 9, relative to the designation of high- 
ways as federal highways, the administration of highways 
of the State (former national highways) shall be exercised in 
accordance with the existing provisions at the expense of the 
Federal State by the agencies hitherto entrusted with this ad- 
ministration. 

Sec. 16, in regard to Article 10, Paragraph 10. 

The designation of those waters the regulation and mainte- 
nance of which is the function of the Federal State according to 



AUSTRIA 297 

Article 10, Paragraph 10, shall take place with the consent of 
the individual states. Until such settlement the regulation 
and maintenance of these waters shall be continued in accord- 
ance with the existing provisions by the agencies hitherto 
entrusted therewith, with reservations as to a subsequent appor- 
tionment of the expenses incurred. 

Sec. 17, in regard to Article 10, Paragraph 15. 

(1) In conformity with Article 10, Paragraph 15, the Federal 
State shall have powers of legislation and execution concerning 
such measures as are necessary to assure a uniform conduct of 
economic aflfairs for the duration of the extraordinary conditions 
caused by the events of the War of 1914-1918. 

(2) The date from which the aforementioned extraordinary 
conditions shall be considered settled shall be determined by 
federal law. 

Sec. 18, in regard to Article 15, Paragraph 3. 

(1) In the matters enumerated in Articles 11 and 12, such 
special provisions relative to the competence of the central 
authorities as are contained in the hitherto existing laws and ex- 
ecutive directions (ordinances) shall, notwithstanding the provi- 
sions of Section 6 [of this transitional law], remain in force for 
the cases provided for in Article 15, Paragraph 3, until new fed- 
eral laws shall have been enacted. 

(2) In matters enumerated in Articles 11 and 12, in which the 
existing laws and executive directions (ordinances) do not regu- 
late cases of the aforementioned kind, the provision of Article 
15, Paragraph 3, shall become effective at once. 

Sec. 19, in regard to Article 23. 

Until the promulgation of the law necessary for the carrying 
out of the provisions of Article 23, the provisions of the Law of 
July 12, 1872, National Law Gazette, No. 112 (law concerning 
syndicates), shall remain in force with the changes effected by 
Section 12, Paragraph 2, of the Fundamental Law of November 
22, 1918, State Law Gazette, No. 38, concerning judicial power. 

Sec. 20, in regard to Article 24. 

(1) The Constituent Assembly, elected by virtue of the Law of 
July 20, 1920, State Law Gazette, No. 316, concerning regula- 
tions for the elections to the Constituent Assembly, shall be the 
first Nationalrat within the meaning of the federal constitution. 

(2) The laws of July 20, 1920, State Law Gazette, No. 317, 
concerning the election and convocation of the Constituent As- 
sembly, and of July 20, 1920, State Law Gazette, No. 316, con- 



298 NEW CONSTITUTIONS OF EUROPE 

cerning regulations for elections to the Constituent Assembly, 
shall remain in force for the first Nationalrat. The term of 
the first Nationalrat shall remain fixed thereby at three years 
and shall begin with the day of its first meeting. 

(3) Until a new regulation by law, the members of the Na- 
tionalrat shall have the rights and duties of members of the Con- 
stituent Assembly, except as otherwise provided by the federal 
constitution. They shall, upon summons by the President of 
the Constituent Assembly, and by roll call, take an oath, using 
the formula "I swear,"to be unalterably faithful to the Republic, 
to observe constantly and wholly the constitutional laws as well 
as all other laws, and to discharge their duties conscientiously. 

(4) The ofiicials and employees of the Constituent Assembly 
shall be employees of the office of the President of the National- 
rat; they shall have the same status, duties, and rights as the 
federal employees. 

Sec. 21, in regard to Articles 34 and 36. 
(1) The states shall be represented in the first Bundesrat as 
follows: 



Vienna 


12 n 


rem 


State of Lower Austria 


10 




Styria 


6 




Upper Austria 


6 




Tyrol 


3 




Carinthia 


3 




Salzburg 


3 




Vorarlberg 


3 





(2) As soon as Burgenland has elected a Landtag, the number 
of members to be deputized to the Bundesrat from Burgenland 
shall be determined by the Federal President in accordance with 
Article 34. 

(3) The Bundesrat shall assemble for its first sitting on the 
21st day after the first meeting of the Nationalrat, in the hall 
of the parliament building designated by the Federal Chancellor. 
The member elected to the first place from Vienna shall act as 
the first presiding officer. 

Sec. 22, in regard to Article 49. 

(1) Until the promulgation of the law provided for in Article 
49, Paragraph 2, the provisions of the Law of November 12, 
1918, State Law Gazette, No. 7, concerning the publication of 
laws and ordinances in the State Law Gazette shall, in so far as 



AUSTRIA 299 

they have not been changed by the federal constitution, apply, 
as far as may be, to the Federal Law Gazette; and thereupon 
Section 6 of this law is to be applied. 

(2) The Federal Constitution and this law as well as the proc- 
lamation mentioned in Section 41 [of this transitional law] 
shall be republished in the first number of the Federal Law 
Gazette. The text of the laws thus republished shall be the 
standard. 

Sec. 23, in regard to Article 54. 

The Law of April 13, 1920, State Law Gazette, No. 180, con- 
cerning participation of the Constituent Assembly in the fixing 
of railroad, postal, telegraph, and telephone rates and of prices 
of articles subject to monopoly, as well as of salaries of persons 
employed in enterprises of the State, shall be considered as the 
federal constitutional law provided for in Article 54; and there- 
upon Section 6 of this law shall be applied. 

Sec. 24, in regard to Articles 60 and 62. 

(1) For the first election of a Federal President, the Bundes- 
versammlung (Article 38) shall meet, without special convoca- 
tion, on the 28th day after the first sitting of the Nationalrat at 
eleven o'clock in the morning in the parliament building. 

(2) In case the oath of office cannot be administered to the 
newly elected Federal President at the same sitting of the Bun- 
desversammlung, the Federal Chancellor must call the Bundes- 
versammlung together at the next possible date for the adminis- 
tering of the oath of office to the Federal President. 

(3) Until the oath of office has been administered to the Fed- 
eral President the last President of the Constituent Assembly 
shall perform all the functions assigned to the Federal President. 

Sec. 25, in regard to Article 65, Paragraph 3. 

(1) The Law of February 26, 1920, State Law Gazette, No. 
94, whereby Article 7 of the Law of March 14, 1919, State Law 
Gazette, No. 180, concerning the Ministry of the State is 
amended, shall be considered as an ordinary federal law within 
the meaning of Article 65, Paragraph 3. 

(2) The rights of confirmation conferred upon the President 
of the Constituent Assembly by the hitherto existing laws shall 
be transferred to the Federal President, in so far as such provi- 
sions may not be considered changed by the transition to the 
Federal State. 

(3) Without prejudice to the new regulation of the law of the 
public service of federal employees, the Federal President shall 



300 NEW CONSTITUTIONS OF EUROPE 

also be empowered to cancel and to mitigate disciplinary penal- 
ties pronounced by the disciplinary authorities against federal 
employees, to remit the legal consequences of such penalties, 
as well as to direct that disciplinary proceedings shall not be 
commenced or that disciplinary proceedings commenced should 
be discontinued. 

Sec. 26, in regard to Article 69. 

(1) Until the promulgation of the federal law provided for 
in Article 77, Paragraph 2, the Chancellor of the State and the 
Ministry of the State shall, as Federal Chancellor and Federal 
Ministry respectively, carry on their business provisionally, with 
their previous instructions and powers. 

(2) The Ministry of the State shall be the first Federal Min- 
istry within the meaning of the federal constitution. 

Sec. 27, in regard to Article 79. 

The army created by virtue of the Law of National Defence 
of March 18, 1920, State Law Gazette, No. 122, shall be the 
federal army within the meaning of the federal constitution. 

Sec. 28, in regard to Articles 82-94. 

The provisions actually regulating the jurisdiction and organi- 
zation of the civil and criminal courts shall remain in force until 
further provisions have been enacted. 

Sec. 29, in regard to Article 95. 

The existing representative assemblies in the states shall be 
the first Landtags withm the meaning of the federal constitution. 

Sec. 30, in regard to Article 98. 

(1) Article 98 shall also be applied to laws of the states en- 
acted before the federal constitution goes into effect, in so far as 
the Ministry of the State has not yet taken any steps within the 
meaning of Articles 14 and 15 of the Law of March 14, 1919, 
State Law Gazette, No. 179, concerning representative assem- 
blies, and in so far as the term prescribed in the last mentioned 
Articles has not yet expired. For computing the term pre- 
scribed in Article 98, Paragraph 2, the day on which the law has 
been filed in the competent oflBce of the Ministry of the State 
shall be regarded as the day of its being filed in the oflBce of the 
competent federal minister. 

(2) Protests of the ^linistry of the State against laws of the 
states, concerning which protests the Landtag has not yet passed 
a resolution prior to the date on which the federal constitution 
becomes effective, shall be considered as protests of the Federal 
Ministry. 



AUSTRIA 301 

Sec. 31, in regard to Article 98. 

In so far as they are not considered as changed by the federal 
constitution, the state constitutions (state ordinances) at pres- 
ent in force shall be regarded provisionally as the state consti- 
tutions provided for in the federal constitution. 

Sec. 32, in regard to Article 101. 

(1) The former state ministries shall be considered as the 
state ministries within the meaning of the federal constitution. 

(2) Within fourteen days after assuming office the Federal 
President shall call the chief executive officers of the states to- 
gether to administer to them the oath of office (Article 101, 
Paragraph 4). The chief executive officer of a state already in 
office shall, however, even before he takes the oath of office, 
exercise the functions of a chief executive officer of a state within 
the meaning of the federal constitution. 

(3) Salaries of members of the state ministries which fall 
due after the date fixed in Section 42, Paragraph 1 [of this tran- 
sitional law], shall be paid by the states. 

Sec. 33, in regard to Articles 108-114. 

(1) The existing Landtag of Lower Austria shall be the Land- 
tag of Lower Austria within the meaning of the federal consti- 
tution. The deputies of the Landtag elected in the municipal 
district of Vienna shall form the city curia; the remaining depu- 
ties of the Landtag shall form the state curia. 

(2) The legislative and executive power in matters pertaining 
to the formerly autonomous provincial administration, as well 
as the remaining power of legislation hitherto conferred on the 
Landtag shall continue to be exercised by the agencies hitherto 
competent, until the agencies provided for in the common state 
constitution have been chosen. In particular, the present state 
ministry shall exercise the functions of the administrative com- 
mission (Article 113) until the election of the latter. The 
matters, however, described in Article 111, Paragraphs 1 and 
2, shall, in respect to legislation and execution, be subject im- 
mediately to the competence of the two divisions of the state. 

(3) In regard to Vienna the municipal council shall assume, 
within the meaning of the federal constitution, the functions of 
the Landtag; likewise the city Senate shall assume the func- 
tions of the state ministry and the Burgermeister shall assume 
the functions of the chief executive officer of the state. 

(4) Until the election of a new state ministry in the state of 
Lower Austria, the members of the present state ministry who 



802 NEW CONSTITUTIONS OF EUROPE 

have not been elected in an election district in Vienna, and the 
members of the present state council shall exercise provisionally 
the functions of the state ministry within the meaning of the 
federal constitution; and likewise any deputy of the chief ex- 
ecutive officer of the state, provided such deputy has not been 
elected in an election district in Vienna, shall exercise provi- 
sionally the functions of the chief executive officer of the state. 

(5) Until the promulgation of the federal constitutional law 
concerning the organization of administration in the states 
(Article 12, Paragraph 1), the fimctions of the indirect federal 
administration as to original and appellate jurisdiction shall for 
Vienna be combined in one jurisdiction. In all those matters, 
however, in which, by virtue of special legal provisions, no ap- 
peal lies beyond the state, the competent officer of the Magistrat 
shall decide in first instance, and the Burgermeister, in his 
capacity as chief executive officer of the state, shall decide on 
appeal. These provisions shall apply to decisions in appellate 
proceedings pending on the date on which this law becomes 
effective. 

(6) The existing legal provisions concerning salaries of the 
commissioners of the people in the states shall not apply to 
Vienna. 

Sec. 34, in regard to Articles 115-119. 

(1) Until the organization of general public administration 
in the states in accordance with the provisions of Articles 115- 
119, the existing district administration shall continue; but in 
the jurisdiction of each district administration {Bezirkshawpt- 
mannschaft) a district council shall be elected. The sphere of 
action of this district council shall be determined by federal leg- 
islation and by state legislation within their legislative com- 
petences as prescribed by constitutional law. 

(2) In cities governed under their own charters the municipal 
council shall assume at the same time the functions of the dis- 
trict council. These functions may be transferred to a special 
committee of the municipal council, and in Vienna to the district 
councils existing there or to committees thereof. 

(3) The election of the district councils shall take place in 
accordance with the principles of proportional representation 
and by the equal, direct, secret, and personal suffrage of all 
Austrian citizens, who have their domicile in the territory of 
the district administration. The number of the members of 
the district councils shall be apportioned among the judicial 



AUSTRIA 303 

districts en the basis of the number of their citizens. The pro- 
visions of Article 119, Paragraph 2, shall be duly applied. 

(4) Only persons who have their domicile in the district and 
who are eligible for election to the Landtag shall be eligible for 
the district council. 

(5) Detailed regulations for carrying out these elections shall 
be prescribed by state law. 

(6) Further fundamental principles for the reorganization of 
the existing district administration in accordance with the pre- 
ceding provisions shall be prescribed by federal law. Supple- 
mentary laws shall be enacted by the states. The federal law 
must be promulgated within four months after the federal con- 
stitution becomes effective; the state laws must be promulgated 
within four additional months after the federal law becomes 
effective. 

Sec. 35, in regard to Article 122. 

(1) The hitherto existing Independent Court of Audit of the 
State shall become the Independent Court of Audit within the 
meaning of the federal constitution. 

(2) Until the election of the president of the independent 
Court of Audit his functions shall be performed by the last presi- 
dent of the Independent Court of Audit of the State. 

See. 36, in regard to Article 131. 

(1) The Supreme Administrative Court shall not become 
competent in administrative criminal matters until the general 
provisions of administrative criminal law and of administrative 
criminal procedure have been reenacted. This reenactment 
must take place before July 1, 1921. 

(2) The provisions contained in any laws concerning adminis- 
tration expressly exempting certain cases from the jurisdiction 
of the Supreme Administrative Court shall remain in force 
provisionally. 

Sec. 37, in regard to Articles 134 and 135. 

(1) The hitherto existing Supreme Administrative Court shall 
become the Supreme Administrative Court within the meaning 
of the federal constitution. 

(2) Its president and the members shall remain in office until 
new appointments have been made in accordance with Article 
135. These new appointments must be made before January 
1, 1921. 

(3) Within this period of time the president and the members 
of the Supreme Administrative Court may, within the meaning 



304 NEW CONSTITUTIONS OF EUROPE 

of Article 88, Paragraph 2, be retired without the formalities 
otherwise prescribed, unless they hav'e been reappointed in 
conformity with Article 135. 

Sec. 38, in regard to Article 136. 

In so far as it has not been amended by the provisions of the 
federal constitution and of this law, the Law of February 6, 1919, 
State Law Gazette, No. 88, concerning the creation of a German- 
Austrian Supreme Administrative Court, shall remain in force 
as the federal law provided for in Article 136 until further provi- 
sions have been enacted; in which case Section 6 of this law must 
be applied. 

Sec. 39, in regard to Article 147. 

(1) The hitherto existing Supreme Constitutional Court shall 
become the Supreme Constitutional Court within the meaning 
of the federal constitution. 

('•2) Its president, vice-president, members, and substitute 
members shall remain in office until new appointments have 
been made in accordance with Article 147. 

Sec. 40, in regard to Article 148. 

The laws regulating the organization and the procedure of the 
hitherto existing Supreme Constitutional Court shall be re- 
garded as the federal law provided for in Article 148 until 
further provisions have been enacted. 

Sec. 41, in regard to Article 151. 

As soon as the Constituent Assembly to be elected on Octo- 
ber 17, 1920, in conformity with Section 3 of the Law of July 20, 
1920, State Law Gazette, No. 317, has been called together, the 
office of the Chancellor of the State shall fix by proclamation 
in the State Law Gazette the day on which the federal con- 
stitution and this law become efifective. 



III. Concluding Provisions 

Sec. 42. (1) In so far as they do not relate to matters per- 
taining to the formerly autonomous administration of the states. 
Articles 10-13 inclusive and Article 15 of the Federal Constitu- 
tion shall not become effective until the day on which the follow- 
ing laws come into force: 

(a) The federal constitutional law concerning the financial 
settlement between the Federal State and the states or the 
municipalities. 



AUSTRIA 305 

(b) The federal constitution law concerning the scope of au- 
thority of the Federal State and the states in regard to 
schools, education, and popular instruction (Article 14 of 
the federal constitution). 

(c) The federal constitutional law concerning the organiza- 
tion of general public administration in the states (Article 
120 of the federal constitution). 

(2) Until such laws come into force, the following provisions 
shall be efiFective: 

(a) In legislative and executive matters, the division or juris- 
diction between the Federal State and the states shall not 
be changed from the existing division of jurisdiction be- 
tween the State and the states. 

(b) All matters pertaining to the formerly autonomous ad- 
ministration shall be administered by the states within their 
autonomous sphere of action. 

(c) All other executive matters shall be administered by the 
states as matters of indirect federal administration within 
the meaning of the federal constitution, in so far as they do 
not come within the competence of special federal author- 
ities (Article 102 of the federal constitution); Sec. 33, 
Paragraph 5 [of this transitional law], shall apply to the 
conduct of this indirect federal administration in Vienna. 

(d) The authorities excepted in Section 8, Paragraph 1 [of 
this transitional law], shall be provisionally federal author- 
ities; the employees described in Section 9, subdivision 2, 
[of this transitional law], shall be provisionally federal 
employees. Such powers concerning matters of personnel 
relative to employees described in Section 9, Paragraph 2 
[of this transitional law], as have been conferred upon the 
chief executive oflScers of the states and the state minis- 
tries in accordance with regulations hitherto in force, shall 
continue. 

(e) The provisions of Section 6, Paragraph 1 [of this tran- 
sitional law], shall be applied only in so far as they are not 
in conflict with the provisions of this Section. 

(f) In regard to schools and education the national laws, in- 
cluding the former imperial laws, may be amended only 
by concurrent laws of the Federal State and the states 
affected thereby; except those legal provisions which con- 
cern institutions of higher learning or the fixing of teachers' 
salaries. The existing state laws may be amended only by 



306 NEW CONSTITUTIONS OF EUROPE 



concurrent laws of the state affected thereby and of the 
Federal State. 
Sec. 43. (1) This law shall become effective at the same 
time as the federal constitution. 
(2) It shall be executed by the Ministry of the State. 

Seitz, m. p. 



JVIayr, m. p. 
Hanusch, m. p. 
Renner, m. p. 
Breisky, m. p. 
Reisch, m. p. 
Heinl, m. p. 



Haueis, m. p. 
Deutsch, m. p. 
Ellenbogen, m. p. 
Roller, m. p. 
Pesta, m. p. 
Grunberger, m. p. 



CHAPTER XIII 
CZECHOSLOVAKIA 



1. HISTORICAL NOTE 

The new state of Czechoslovakia, as its boundaries were 
defined by the Peace Conference, contains, with some 
modifications, the territory of the ancient kingdom of Bo- 
hemia and the lands of Moravia, Silesia, and Slovakia.^ 
From the standpoint of the mapmaker the formation of 
this state was a sensational settlement, comparable only to 
that of Poland. These two great medieval states have been 
revived in forms appropriate to the twentieth century; long- 
cherished national aspirations have been accorded political 
recognition. The future will show whether Hegel was 
right when he said that the only lesson of history is that 
men learn nothing from history; whether the new states 
will avoid the weaknesses and blunders that were fatal 
to them in the past. 

In some respects the record of Bohemia is quite unique. 
Here is a nation in the very centre of Europe, which after playing 
a memorable part in the field of political and religious progress, 
and becoming thoroughly imbued with western civilization, 
was crushed ruthlessly out of existence, lay like a corpse for two 
whole centuries, and then arose once more to recover, almost 
unaided, its lost nationhood. Poland, though at times far more 
brutally treated, never sank so low; and even the supreme crime 
of partition had at least the one advantage that it rendered a 
uniform system of denationalization impossible and, by im- 
parting to Polish culture a certain quality of quicksilver, saved 
it from utter extinction. But Bohemia — her nobility well nigh 
exterminated, her middle class driven into exile, her peasantry 
reduced once more to serfdom, her national faith suppressed, 

'Bohemia, Moravia, and Silesia were provinces of the Austrian part of the Dual 
Monarchy; Slovakia was an integral part of Hungary. 

307 



Composition 
of Czecho- 
slovakia 



Record of 

Bohemia 

under 

Austrian 

nile 



308 NEW CONSTITUTIONS OF EUROPE 

her hierarchy and administration aUke in the hands of foreigners 
— seemed by the beginning of last century lost beyond all possi- 
bility of recovery. It is told that Jungman, one of the pioneers 
of Czech philology, was in the habit of meeting a small group of 
other patriots in a Prague inn, and that on one occasion he ex- 
claimed, "If this roof should fall, there would be an end of the 
Czech national movement." The truth of this anecdote has been 
seriously challenged, and even if true, it exaggerates the actual 
situation of that day; but none the less it may stand as sym- 
bolic of the dire straits into which the nation had fallen.^ 



Czech and 

Slovak 
revivals 



F>resident 
Wilson and 
Czecho- 
slovakia 



The origins of the Czech and Slovak national revivals, 
the repression of the Czech patriots within Austria, the 
inclusion of the liberation of the Czechoslovaks in the 
Allied war aims,^ and the Congress of Oppressed Nation- 
alities held in Rome in April, 1918, make an interesting but 
exceedingly complicated story .^ In the summer of 1918, the 
United States and England ofiFered some encouragement, 
and on October 14, the Allied Governments were notified 
that a provisional Czechoslovak government had been 
formed under the Presidency of Professor Masaryk. On 
October 16, Emperor Charles issued a manifesto addressed 
"To My Peoples" and announcing the federalization of 
Austria (not Austria-Hungary) .^ In place of Austria there 
were to be four national states — German, Czech, Jugoslav, 
and Ukrainian. Trieste was to be a free port and the Poles 
of Galicia were to be allowed to unite with Poland. 
Moritiiri te salutamus. 

The final death blow, however, was dealt by President 
Wilson's note of October 18.^ He told Count Burian that 
the United States had materially modified the position 

'Temperley, EM., A History of the Peace Conference of Paris, Vol. IV, p. 237 
(London, 1921). 

°The Allied note to President Wilson (January 10, 1917) demanded "the 
liberation of the Italians, as also of the Slavs, Rumanians, and Czechoslovaks 
from foreign domination." Baron Sonnino, relying on the Secret Treaty of 
London, opposed the inclusion of the Jugoslavs in this enumeration. 

'See Temperley, ojp. cii.. Vol. IV, Ch. IV. 

*See above, p. 252. 

'See above, p. 252. 



CZECHOSLOVAKIA 309 

taken in the Fourteen Points by recognizing the beUigerent 
Czechoslovak Government. On October 27 Count An- 
drassy (who had succeeded Burian as Joint Foreign 
Minister) accepted "President Wilson's standpoint on the 
Czechoslovak and Jugoslav questions as a basis for ne- 
gotiation" and "annihilated at one blow not merely the 
Dual System, but the whole structure of political, dynas- 
tic, and constitutional theory upon which 'Austria- 
Hungary' had rested for two generations."^ 

On October 18, the independence of Czechoslovakia was Declaration 
proclaimed in Paris by the Czechoslovakia National Coun- of inde- 
cil under the leadership of Masaryk, Benes, and Stefanik. J^°g®°^^' 
And ten days later the Czech National Committee in 
Prague took over the administration of civil and military 
affairs in Bohemia. The Paris proclamation, the first con- 
stitutional law of free Czechoslovakia, was a rather liberal 
document; it rejected the divine right of kings for "the prin- 
ciples of Lincoln and of the Declaration of the Rights of 
Man and the Citizen." It went on to declare that " Our de- 
mocracy shall rest on universal suffrage; women shall be 
placed on an equal footing with men politically, socially, 
and culturally, while the right of the minority shall be safe- 
guarded by proportional representation. National minor- 
ities shall enjoy equal rights. The government shall be 
parliamentary in form and shall recognize the principles of 
initiative and referendum. The standing army will be re- 
placed by militia. The Czechoslovak nation will carry out 
far-reaching social and economic reforms. The large estates 
will be redeemed for home colonization, and patents of 
nobility will be abolished. . . . On the basis of de- 
mocracy mankind will be reorganized. . . . We believe 
in democracy, we believe in liberty and liberty for ever- 
more."^ 



iTemperley, <yp. cit. Vol. IV, p. 265. 
Hbid., pp. 266-267. 



310 NEV>' CONSTITUTIONS OF ELROPE 



The 

National 
Assembly 
and the 
Constitu- 
tion 



A provisional constitution was promulgated by the Na- 
tional Committee on November 13, 1918. It provided for 
an enlargement and transformation of the National 
Committee into a National Assembly of 256 mem- 
bers. From the former Austrian provinces the members 
were coopted (not elected) in proportion to the strength 
of the existing political parties, according to the number of 
votes polled by each at the last election of the Reichsrat. 
From Slovakia 55 members were coopted on the advice of 
The Slovak National Council. The task of the National As- 
sembly was legislation and the control of the executive ; but 
it was understood although not stated that the Assembly 
would also frame a permanent constitution.^ Compromises 
were at length reached on all debated points, and the con- 
stitution was promulgated on February 29, 1920.^ 



2. THE CONSTITUTION OF CZECHOSLOVAEX\ 



THE LAW OF FEBRUARY 29, 1920 

WHEREBY THE CONSTITUTIONAL CHARTER OF THE CZECHOSLOVAK 
REPUBLIC IS INTRODUCED 

We, the Czechoslovak nation, desiring to consolidate the per- 
fect unity of our people, to establish the reign of justice in the 
Republic, to assure the peaceful development of our native 
Czechoslovak land, to contribute to the common welfare of all 
citizens of tliis State and to secure the blessings of freedom to 
coming generations, have in our National Assembly this 29th 
day of February 1920 adopted the following Constitution for 
the Czechoslovak Republic; and in doing so we declare that it 
will be our endeavor to see that this Constitution together with 
all the laws of our land be carried out in the spirit of our history 
as well as in the spirit of those modern principles embodied in 

^Dedek, "The Constitution of Czecho-SIovakia," Journal of Comparative 
Legislation and International Law, Third Series, Vol. Ill, p. 116 (January, 1921). 

^The translation here used is an English version printed in Prague and issued 
by the Societe de I'efifort de la Tchecoslovaquie, apparently with ofBcial sanction. 
It has excellent introductions and translations of the electoral laws. Other ver- 
sions appeared in Current History, July, 1920, and the Contem-porary Review, Sep- 
tember, October, and November, 1920. 



CZECHOSLOVAKIA 311 

the idea of self-determination, for we desire to take our place 
in the Family of Nations as a member at once cultured, peace- 
loving, democratic, and progressive. 

[INTRODUCTORY LAW] 

Article I. (1) Enactments which are in conflict with the 
constitutional charter or with laws which may supplement or 
amend it are invalid. 

(2) The constitutional charter may be altered or amended 
only by laws specifically designated as constitutional laws. 

Art. II. A Constitutional Court shall decide as to whether 
the laws of the Czechoslovak Republic and of the Diet of Carpa- 
thian Ruthenia (Russinia) conform with Article I. 

Art. III. (1) The Constitutional Court shall consist of seven 
members, two of whom shall be appointed by the High Court 
of Administration and two by the High Court of Justice; the 
remaining two members and the chairman shall be nominated 
by the President of the Republic. 

(2) The appointment of representatives of the above- 
mentioned courts to the Constitutional Court, the tenure of 
office, the rules of procedure and the definition of its jurisdiction 
shall be established by a specific enactment. 

Art. IV. (1) The present National Assembly shall sit until 
the convocation of Parliament (the Senate and the Chamber of 
Deputies) . 

(2) Such laws as may have been enacted by the National 
Assembly but not made public in the official record by the day 
of the assembling of Parliament, shall not be promulgated if 
returned by the President of the Republic to the National As- 
sembly. 

(3) Regulations of the provisional constitution, limiting the 
period of exercise of the rights of the President of the Republic 
(Article 11 of the provisional constitution) and delimiting the 
duty of the Government to publish the law enacted shall remain 
valid as to laws enacted by the present National Assembly. 

Art. V. The present President shall remain in office until a 
new election takes place. The duties and obligations of the 
President, as defined in the constitutional charter, become ef- 
fective simultaneously with the adoption of the constitutional 
charter. 

Art. VI. Until the election of the full number of members 



312 NEW CONSTITUTIONS OF EUROPE 

of Parliament, as required by the constitutional charter, the 
number of members actually elected shall determine the quorum 
necessarj' for the enactment of legislation. 

Art. VII. (1) The provisions of Articles I, II, III, Paragraph 
1, and VI shall be an integral part of the constitutional char- 
ter, as set forth in Article 33 of that charter. 

(2) Provisions as to the execution of laws, as postulated in 
the constitutional charter, shall not form part of that charter, 
as set forth in the preceding paragraph, unless the charter pro- 
vides otherwise. 

Art. VIII. (1) The constitutional charter shall become valid 
on the day of its proclamation. 

(2) Article 20 does not apply to members of the present 
National Assembly. 

Art. IX. On the day designated in Article VIII, Paragraph 
1, all laws and regulations in conflict with the spirit of this char- 
ter and the republican form of the state, as well as all previously 
enacted constitutional laws, shall become invalid, even if part 
of the latter are not opposed to the constitutional laws of the 
Czechoslovak Republic. 

Art. X. The foregoing nine articles shall become valid simul- 
taneously with the constitutional charter. The execution of 
these enactments is hereby placed in the hands of the Govern- 
ment. 

THE CONSTITUTIONAL CHARTER OF THE 
CZECHOSLOVAK REPUBLIC 

section i 

General Provisions 

Article 1. (1) The people are the sole source of all state 
power in the Czechoslovak Republic. 

(2) This constitutional charter determines through what or- 
gans the sovereign people shall express their will in laws, provides 
for the execution of these laws, and guarantees to the people 
their rights and liberties. Such limitations are imposed upon 
these organs of government, as shall preserve to the people all 
rights guaranteed by this charter. 

Art. 2. The Czechoslovak state shall be a Democratic Re- 
public, the head of which shall be an elected President. 

Art. 3. (1) The territories of the Czechoslovak Republic 



CZECHOSLOVAKIA 313 

shall form a united and indivisible unit, the frontiers of which 
may be altered only by constitutional law. 

(2) The autonomous territory of Carpathian Russinia, which 
shall receive the widest measure of self-government compatible 
with the unity of the Czechoslovak Republic, shall be an integral 
part of this unit by the terms of its voluntary declaration as set 
forth in the Treaty between the Allied Powers and the Czecho- 
slovak Republic of September 10, 1919. 

(3) Carpathian Russinia shall have its own Diet, which shall 
elect its presiding officer and other officials. 

(4) This Diet shall legislate in linguistic, educational, and re- 
ligious matters, in matters of domestic administration, and in 
such other matters as may be assigned to it by the laws of the 
Czechoslovak Republic. Laws enacted by this Diet, and signed 
by the President of the Republic, shall be published in a sepa- 
rate series and shall be counter-signed by the Governor of Rus- 
sinia. 

(5) Carpathian Russinia shall be represented in Parliament 
by Deputies and Senators elected according to the general 
suffrage law of the Czechoslovak Republic. 

(6) The head of Russinia shall be a Governor, appointed by 
the President of the Czechoslovak Republic on the recommenda- 
tion of the Government, and he shall be responsible also to the 
Diet of Russinia. 

(7) Public officials in Russinia shall be, in so far as possible, 
selected from the population of Russinia. 

(8) Details as to the right of suffrage and eligibility to the 
Diet shall be defined by special legislation. 

(9) The law enacted by the Parliament defining the frontiers 
of Carpathian Russinia shall form part of the constitutional 
charter. 

Art. 4. (1) Citizenship in the Czechoslovak Republic is sin- 
gle and uniform. 

(2) The law regulates the conditions governing the acquisi- 
tion, the rights and duties, and the termination of citizenship 
in the Czechoslovak Republic. 

(3) A citizen or subject of a foreign state cannot at the same 
time be a citizen of the Czechoslovak Republic. 

Art. 5. (1) The capital of the Republic is Prague. 

(2) The colors of the Republic are white, red, and blue. 

(3) Official emblems and flags shall be determined upon by 
law. 



314 NEW CONSTITUTIONS OF EUROPE 

section ii 

Legislative Powers, Constitution and Competency of 
Parliament and of Both Its Chambers 

Art. 6. (1) The legislative power of the whole Czechoslovak 
Republic shall rest in the hands of Parliament, which shall be 
composed of a Chamber of Deputies and a Senate. 

(2) The seat of both chambers shall be at Prague. In case 
of urgent necessity. Parliament may be temporarily summoned 
to some other locality in the Czechoslovak Republic. 

Art. 7. (1) The legislative and administrative powers of the 
former Diets is hereby abolished. 

(2) Unless they provide otherwise, enactments of Parliament 
shall be binding throughout the Czechoslovak Republic. 

Art. 8. The Chamber of Deputies shall be composed of 300 
members, elected according to a general, equal, direct and secret 
suffrage, on a basis of proportional representation. Elections 
shall be held on Sundays. 

Art. 9. The right to vote for the Chamber of Deputies ap- 
pertains to all citizens of the Czechoslovak Republic without dis- 
tinction of sex, who are 21 years of age and who comply with 
the other provisions of the electoral regulations. 

Art. 10. All citizens of the Czechoslovak Republic without 
distinction of sex who are 30 years of age and who comply with 
the conditions of the suffrage law may be elected as Deputies 
to the Chamber. 

Art. 11. The term for which the Chamber of Deputies is 
elected shall be six years. 

Art. 12. Details as to the exercise of suffrage rights and the 
manner of carrying out elections are set forth in the provisions 
dealing with elections to the Chamber of Deputies. 

Art. 13. The Senate shall consist of 150 members elected 
according to general, equal, direct, and secret suffrage on a 
basis of proportional representation. Elections shall be held 
on Sundays. 

Art. 14. The right to vote for the Senate appertains to all 
citizens of the Czechoslovak Republic without distinction of sex 
who are 26 years of age and who comply with the other provi- 
sions of the law concerning the constitution and the rights and 
powers of the senate. 

Art. 15. All citizens of the Czechoslovak Republic without 
distinction of sex who are 45 years of age and who comply with 



CZECHOSLOVAKIA 315 

the other conditions concerning the constitution and the rights 
and powers of the Senate are eHgible to the Senate. 

Art. 16. The term for which the Senate is elected shall be 
eight years. 

Art. 17. Specific provisions as to the exercise of the suffrage 
and the manner of elections are set forth in the law governing 
the constitution and law of the Senate. 

Art. 18. No person may be at the same time a member of 
both chambers. 

Art. 19. (1) An electoral court shall pass upon the validity 
of elections to Parliament. 

(2) Details shall be settled by law. 

Art. 20. (1) If a civil servant become a member of Parlia- 
ment, he shall be granted leave automatically pending his term 
in Parliament; he shall be entitled to his regular salary, but with 
no local allowances, and he shall retain from his official duties 
his right to seniority promotion. University professors are en- 
titled to leave of absence; if they make use of this right, the 
same provisions apply to them as to other state servants. 

(2) All other public servants and officials shall have the right 
to obtain leave pending their term as members of Parliament. 

(3) Members of Parliament cannot enter the civil service un- 
til after the expiration of one year from the time they cease to 
be members. 

(4) This provision does not apply to Ministers. The time 
limit in section 3 shall not affect deputies or senators who were 
civil servants before they became members of Parliament, pro- 
vided that they return to the same department. 

(5) District governors cannot become members of Parlia- 
ment. 

(6) Members of the Constitutional Court, commissioners of 
an electoral court and members of district assemblies cannot at 
the same time be members of Parliament. 

Art. 21. Members of either chamber can resign their man- 
dates at any time. 

Art. 22. (1) Members of Parliament shall execute their 
functions in person. They shall not receive orders from any- 
body. 

(2) They shall not address to public authorities requests in 
the personal interest of individuals, unless they do so in their 
professional capacity. 

(3) At their first sitting, members of Parliament shall take 



316 NEW CONSTITUTIONS OF EUROPE 

the following oath : " I pledge myself to be faithful to the Czecho- 
slovak Republic, to uphold its laws and to carry out my man- 
date to the best of my knowledge and conscience." Refusal to 
take this oath or the making of any reservation thereto shall dis- 
qualify for membership in Parliament. 

Art. 23. Members of Parliament shall not be prosecuted for 
the exercise of their functions as members. For statements 
made in the chamber, members shall be amenable only to the 
disciplinary statutes of the chamber. 

Art. 24. (1) Only with the consent of the respective cham- 
bersshallmembersof Parliamentbecome liable to civil or criminal 
prosecution. If this consent be not granted, such prosecution 
shall become permanently null and void. 

(2) This provision does not apply to the legal liability of a 
member as responsible editor.^ 

Art. 25. If a member of either chamber be apprehended 
and arrested in the commission of a criminal act, the court or 
other authority having jurisdiction shall inform the Chairman 
of the respective chamber of the arrest. If the chamber or the 
committee defined under Article 54 does not within a fortnight 
give its consent to the arrest, it becomes null and void forthwith. 
If the committee does consent to the arrest, the chamber must 
give its decision within 14 days after its first sitting. 

Art. 26. Members of either chamber shall have the right to 
refuse to give testimony in reference to matters confided to 
them as members of the chamber, even after they cease to be 
members. In the trial of a case of attempting to corrupt a 
member, testimony cannot be refused. 

Art. 27. Members of either chamber shall have a right to 
remuneration as specified by law. 

Art. 28. (1) The President of the Republic shall summon 
both chambers twice a year for a spring and an autumn session, 
the former to begin in March, the latter in October. 

(2) Furthermore, he may summon Parliament for extraordi- 
nary sessions whenever he may deem it necessary. If at least 
one-half of the members of either chamber applies to the Prime 
Minister stating the object for summoning it, the President shall 
summon the Assembly within a fortnight from the date of such 
application ; should he fail to do so, the Chairmen of both cham- 
bers shall convoke Parliament within the following fortnight. 

(3) If four months shall have elapsed from the last ordinary 
*In reference to libel and incitement to crime. 



CZECHOSLOVAKIA 317 

session, the President is obliged to summon Parliament, if at 
least two-fifths of either chamber so desire, within a fortnight 
from the date of their application. Should he fail to do so, the 
Chairmen of both chambers shall, within the following fort- 
night, convoke Parliament. 

Art. 29. The session of both chambers shall begin and end 
simultaneously. 

Art. 30. (1) The President of the Republic shall declare 
the session of Parliament at an end. 

(2) He may prorogue Parliament for not longer than a month, 
and not more frequently than once a year. 

Art. 31. (1) The President shall have the right to dissolve 
Parliament. 

(2) He shall not be allowed the exercise of this right during 
the last six months of his term of ofiice. After the expiration 
of the electoral term, or after the dissolution of either chamber, 
new elections shall take place within 60 days. 

(3) The dissolution of the Senate shall not stay criminal pro- 
ceedings inaugurated before the Senate in accordance with Ar- 
ticles 67 and 79. 

Art. 32. Either chamber may function, unless otherwise 
provided in this law, if at least two-thirds of the members are 
present. Its decisions are valid should a majority of one-half 
of those present be obtained. 

Art. 33. The decision as to a declaration of war or as to the 
amendment of this charter shall require a three-fifths majority 
of all the members of each chamber. 

Art. 34. (1) The decision of the Chamber of Deputies for the 
impeachment of the President of the Republic, the Prime Min- 
ister, or other members of the Government, shall require a two- 
thirds majority with two-thirds of the members present. 

(2) The procedure before the Senate sitting as a court of 
prosecution shall be regulated by law. 

Art. 35. Each chamber shall elect its own Chairman and 
other oflBcers. 

Art. 36. The sittings of both chambers shall be public. 
Sittings in camera may be held only where the rules of procedure 
so provide. 

Art. 37. (1) The basic principles of the relations between 
both chambers and between the Government and Parliament 
and between the public and Parliament shall be regulated by 
specific law, which shall conform to the constitutional charter. 



318 NEW CONSTITUTIONS OF EUROPE 

The internal order of each chamber shall be regulated by its own 
rules of procedure. 

(2) So long as the Chamber of Deputies and the Senate do 
not create a new body of rules, the rules of procedure of the 
present National Assembly shall be binding upon them. 

Art. 38. (1) Whenever both chambers meet in joint session as 
the National Assembly (Articles 56, 59, 61,65), this body shall be 
governed by the rules of procedure of the Chamber of Deputies. 

(2) Such a joint session shall be summoned by the Prime 
Minister, and its presiding officer shall be the Chairman of the 
Chamber of Deputies. 

(3) The Chairman of the Senate shall act as Yice-Chairman 
of the National Assembly. 

Art. 39. The ministers shall have the right to participate 
at any time in the meetings of either chamber or of committees. 
They shall be allowed to speak whenever they demand to be 
heard. 

Art. 40. (1) At the request of either chamber or of a com- 
mittee, a minister shall appear before that body. 

(2) Otherwise he may be represented by an official of his de- 
partment authorized by him. 

Art. 41. (1) Proposals for legislation may originate either 
with the Government or in either chamber. 

(2) Every proposal made by members of either chamber shall 
be accompanied by an estimate of the financial issue involved 
and by a proposal for the defraying of the necessary cost. 

(3) Proposals of the Government for budget and army bills 
must first be presented to the Chamber of Deputies. 

Art. 42. A constitutional law shall be valid only with the 
consent of both chambers. This applies also to other laws, 
unless otherwise provided by Articles 43, 44, and 48. 

Art. 43. (1) The Senate shall act on a bill proposed and 
passed by the Chamber of Deputies within six weeks, and on 
the budget and army bills within one month. The Chamber 
of Deputies shall act on a bill proposed and passed by the Senate 
within three months. 

(2) These periods are counted from the day of presentation 
of printed bills by one chamber to the other, and may be altered 
by mutual consent; the Senate must act in all cases of budget 
and army bills within one month as set forth in the preceding 
paragraph. 

(3) If during such a period, the term of the chamber which 



CZECHOSLOVAKIA 319 

is to take action on the bill of the other expires, or if the cham- 
ber be prorogued or dissolved, the date is reckoned from the 
first day of its next sitting. 

(4) If either chamber does not give its decision within the 
period specified, it is presumed that it gives its assent to the 
decision of the first chamber. 

Art. 44. (1) A measure passed by the Chamber of Deputies 
shall become law, despite an adverse decision of the Senate, if 
the Chamber of Deputies declares by a majority of 50 per cent, 
of all its members that it adheres to its first decision. Should 
the Senate reject a draft bill passed by the Chamber of Deputies 
by a majority of all its members, the bill becomes law provided 
that the Chamber of Deputies reenacts its decision by a three- 
fifths majority of all its members. 

(2) Proposals of the Senate shall be referred to the Chamber 
of Deputies : Should the Chamber of Deputies reject a proposal 
of the Senate and if the latter reenacts its bill by a 50 per cent, 
majority of all its members, the bill shall be referred back to the 
Chamber of Deputies. Should the Chamber of Deputies re- 
ject the bill for the second time by a majority of 50 per cent, of 
all its members, the bill shall not become law. 

(3) Bills so rejected may not be presented to either chamber 
until after the lapse of one year. 

(4) Should either chamber amend a bill originating in the 
other chamber, its action shall be deemed a rejection of the bill. 

Art. 45. Should either chamber have under consideration 
a bill already passed by it or a bill passed by the other chamber 
(Article 44, Paragraph 2), and should it be dissolved or its term of 
office expire before action has been taken, its new decision shall 
be considered its second action in accordance with Article 44. 

Art. 46. (1) Should Parliament reject a bill presented by 
the Government, the latter can proclaim a referendum, but this 
action on the part of the Government must be unanimous. 

(2) All citizens qualified to vote for the Chamber of Deputies 
shall be qualified to vote at the referendum. 

(3) The method of referendum shall be determined by law. 

(4) Referendum is inadmissible in respect of such govern- 
ment bills as amend the constitution. (Article I, Introductory 
Law.) 

Art. 47. The President of the Republic shall have the right 
to return with comments any bill passed by Parliament within 
a month of its presentation to the Government. 



320 NEW CONSTITUTIONS OF EUROPE 

Art. 48. (1) Should both chambers, by ballot, taken on 
roll call, affirm the returned bill by a majority of 50 per cent, of 
all their members, the bill shall become law. 

(2) Should the bill not receive a majority of votes in both 
chambers, the bill becomes law, provided that the Chamber 
of Deputies in the new ballot, taken by roll call, passes it by a 
three-fifths majority of all its members. 

(3) Should it be a bill for the adoption of which the presence 
of a larger number of members and a larger majority is required, 
it is necessary that such presence and majority be obtained for 
the adoption of the returned bill. 

(4) Provisions under Article 45 apply accordingly. 

Art. 49. (1) For a bill to become valid as law, it must be 
made public as specified by statute. 

(2) For the proclamation of all laws the following preamble 
must be prefaced: "The Parliament of the Czechoslovak Re- 
public has resolved upon the following law." 

(3) The law shall be published within eight week days from 
the expiration of the period laid down in Article 47. Should the 
President make use of his right referred to in Article 47, the 
law shall be issued within eight week days of the announcement 
of its reenactment by Parliament to the Government (Article 
48). 

Art. 50. In every law it shall be specified to which member 
of the Government its execution is entrusted. 

Art. 51. (1) The law shall be signed by the President of the 
Republic, the Prime Minister, and the minister entrusted with 
its execution. If the President be incapacitated or ill, and there 
is no Vice-President, the Prime Minister may sign on behalf of 
the President. 

(2) The Prime Minister may be represented for the purposes 
of signing laws as specified by Article 71. 

Art. 52. (1) Each chamber shall have the right to put ques- 
tions to the Prime Minister and other members of the Govern- 
ment on matters within the scope of their competence, to enquire 
into administration, to elect committees to whom the ministers 
shall provide information, and to adopt proclamations and reso- 
lutions. 

(2) The Prime Minister and the members of the Government 
shall answer questions put to them. 

Art. 53. The exercise of control of the financial administra- 
tion and of the state debt shall be regulated by law. 



CZECHOSLOVAKIA 321 

Art. 54. (1) During the period elapsing between the dis- 
solution of either chamber and its reassemblage or between the 
expiration of its term of office and its convocation and during 
the period of adjournment, there shall sit a committee of twenty- 
four members. Sixteen members of this committee, with an 
equal number of alternates, shall be chosen by the Chamber of 
Deputies from its members, and eight members, with an equal 
number of alternates, shall be chosen by the Senate from its 
members. Each alternate, shall represent only the member of 
the committee, as the alternate to whom he has been chosen. 
This committee shall act on all matters of immediate urgency, 
even if in ordinary circumstances they should require the enact- 
ments of legislation and shall exercise control of all government 
and executive powers. The term of office of the committee 
is one year. 

(2) The first election shall take place immediately after both 
chambers organize. Presiding officers of both chambers shall 
vote. When a chamber shall meet after election, the members 
of the committee of twenty -four shall be elected by the newly 
organized chamber even if the term of office of preceding mem- 
bers of the committee of twenty-four has not expired. 

(3) Elections shall be based on the principle of proportional 
representation. Party coalition is admissible. Should all 
parties agree on the choice of candidates, the committee shall 
be elected by the vote of the chamber. Should more than 
twenty Deputies and ten Senators oppose such election, it shall 
be carried out as at first provided. 

(4) Members of the committee shall remain in office until a 
new committee is elected. Alternates take the place of members 
unable temporarily or permanently to carry out their duties. 
Should a member or alternate be incapacitated for service, while 
Parliament is in session, bye-elections to fill his post for the 
balance of the term of the committee shall be held. The new 
member must belong to the same political group as the old 
member, unless that group decides not to present a candidate 
or to refrain from voting. 

(5) A member of the Government shall not be a member or 
alternate of the committee of twenty-four. 

(6) When the committee has been elected, it shall elect its 
chairman and second vice-chairman from among the members 
elected by the Chamber of Deputies and a first vice-chairman 
from among the members elected by the Senate. 



322 NEW CONSTITUTIONS OF EUROPE 

(7) The members of the committee shall be subject to the 
provisions in Articles 23 to 27 of the constitutional charter. 

(8) The committee shall be competent in all matters falling 
within the legislative and administrative powers of Parliament 
excepting: 

(a) The election of the President or the Vice-president 
of the Republic. 

(b) The amendment of the constitutional charter (see 
Article I of the Introductory Law) and the changing of the 
competence of public officials, unless it be a question 
of widening the scope of their activities by new duties. 

(c) Burdening the citizens in the state with perma- 
nent financial obligations, increasing the military duties of 
the citizens or disposing of state property. 

(d) Giving consent to a declaration of war. 

(9) Provisions which under ordinary circumstances would 
require the enactment of legislation or expenditures apart from 
the budget, require the assent of half of all the members. 

(10) In all other cases the presence of half of the members 
shall be sufficient and a 50 per cent majority of those present 
shall be decisive. The chairman shall vote only to cast the 
decisive vote. 

(11) Urgent provisions which under ordinary circumstances 
could be promulgated only by enactments of legislation, are 
admissible only on the recommendation of the Government ap- 
proved by the President of the Republic. 

(12) Provisions of the committee referred to in the last para- 
graph shall have the provisional validity of law only if published 
in the official record with reference to Article 54 of the consti- 
tutional charter and if signed by the President of the Republic, 
by the Prime Minister or his Deputy and half of the members 
of the Government. Provisions to which the President has 
refused to assent cannot be entered on record. 

(13) The Constitutional Court shall have jurisdiction over 
such provisions of this committee as under ordinary cir- 
cumstances would require the enactment of legislation, and 
therefore all such provisions shall be laid before it by the 
Government simultaneously with their publication in the 
record. 

(14) The chairman and the vice-chairman of the committee 
shall report at the next meeting of the Chamber of Deputies 
and of the Senate the activities of the committee, even if mean- 



CZECHOSLOVAKIA 823 

while their terms of office as members of Parliament shall have 
expired. 

(15) Provisions not approved by both chambers within two 
months after their first session shall lose their validity. 



section iii 
Governmental and Executive Powers 

Art. 55. Decree shall be issued only for the execution and 
within the limitations of each specific law. 

President of the Republic 



Art. 56. (1) The President of the Republic shall be elected 
by the National Assembly (Article 38). 

(2) Any citizen of the Czechoslovak Republic, eligible to the 
Chamber of Deputies and not less than 35 years of age, may be 
elected President of the Republic (Article 67). 

Art. 57. (1) The election shall be valid only if half of all 
members of both chambers shall be present and if a majority 
of three-fifths of those present shall be obtained. 

(2) Should two ballots produce no result, a third ballot shall 
be cast to decide between those two candidates who at the pre- 
vious balloting obtained the greatest number of votes. The 
candidate who obtains the largest number of votes shall be 
elected. In the case of a tie, the decision shall be made by lot. 

(3) Details shall be determined by law. 

Art. 58. (1) The period of office shall be counted from the 
day when the new President takes his oath according to Article 
65. 

(2) The term of office shall be seven years. 

(3) Elections shall be held during the last four weeks prior 
to the expiration of the President's term of office. 

(4) No one shall be elected more than twice in succession. 
He who has been elected President twice in succession cannot 
again be elected until the expiration of seven years from his 
last term of office. This provision, however, does not apply to 
the first President of the Czechoslovak Republic. 

(5) The President remains in office until his successor shall 
be elected. 



324 NEW CONSTITUTIONS OF EUROPE 

Art. 59. Should the President die or resign his position dur- 
ing his term of office, a new election shall be held according to 
Articles 56 and 57. The President so elected shall serve seven 
years. The National Assembly shall be convened for this pur- 
pose within fourteen days (Article 38). 

Art. 60. Until a new President is elected (Article 59) or 
should the President be unable to execute the duties of his 
office, the execution of his functions shall appertain to the Gov- 
ernment which may invest the Prime Minister with the specific 
functions. 

Art. 61. (1) Should the President be unable to execute the 
duties of his office for more than six months (Article 60), and 
should the Government in the presence of three-quarters of its 
members so decide, the National Assembly (Article 38) shall 
elect a Vice-president who shall remain in office until the Presi- 
dent shall be able to resume his functions. 

(2) Disquahfications for presidential office (Article 58) shall 
apply to the office of Vice-president. 

Art. 62. The same provisions as to the election of the Presi- 
dent shall apply to the election of the Vice-president. 

Art. 63. (1) The President of the Republic shall not be at 
the same time a member of Parliament. Should a member be 
elected Vice-president, he shall not during his service as Vice- 
president fulfil his mandate as member of Parliament. 

(2) The President's official residence shall be in Prague. 

II 

Art. 64. (1) The rights and duties of the President of the 
Republic are as follows: 

(a) He shall represent the state in its relations with 
other states, shall negotiate and ratify international treat- 
ies. Commercial treaties, and treaties which for the 
state or its citizens entail financial or personal burdens, 
especially military burdens, as well as treaties affecting 
the territories of the state, require the affirmation of 
Parliament. The affirmation of Parliament takes the form 
of a constitutional law (Article I of the Introductory 
Law); 

(b) He shall receive and appoint diplomatic representatives ; 

(c) He shall declare the existence of a state of war, shall 
declare war with the previous consent of Parliament, 



CZECHOSLOVAXIA 325 

and shall lay before Parliament for approval peace treaties 
which have been concluded; 

(d) He shall convoke, prorogue, and dissolve Parlia- 
ment (Articles 28-31) and shall proclaim its sessions at an 
end; 

(e) He shall have the right to return with comment any 
law enacted by Parliament (Article 47). He shall sign 
all laws enacted by Parliament (Article 51), all laws 
enacted by the Diet of Carpathenian Ruthenia (Article 3) 
and the ordinances of the committee of twenty-four (Arti- 
cle 5-4) ; 

(f) He shall report verbally or in writing to the National 
Assembly on the state of the Republic, and shall recom- 
mend for consideration measures which he deems neces- 
sary and useful; 

(g) He shall appoint and dismiss Cabinet ministers and 
define their number; 

(h) He shall nominate university professors, judges, all 
state officials and army officers of the sixth class up- 
ward; 

(i) He shall grant donations and pensions in special 
cases on the recommendation of the Government; 

(j) He shall be commander-in-chief of the armed forces 
of the Republic; 

(k) He shall grant pardon as per Article 103. 
(2) All governmental and executive power, in so far as it does 
not or shall not explicitly appertain to the President according 
to the constitutional charter and the laws adopted after Novem- 
ber 15, 1918, shall be reserved to the Government (Article 70). 

Ill 

Art. 65. The President of the Republic shall take an oath 
before the National Assembly (Article 88) on his honor and 
conscience to look to the welfare of the Republic and its people, 
and to abide by the constitution and laws. 

Art. 66. The President of the Republic shall not be answer- 
able at law in the exercise of his functions. The Government 
shall be answerable for all the President's official utterances. 

Art. 67. (1) He may be prosecuted only for high treason 
before the Senate upon an indictment found against him by 
the Chamber of Deputies (Article 34). The only punishment 



326 NEW CONSTITUTIONS OF EUROPE 

shall be the loss of his oflBce and permanent disqualification for 
the Presidency. 

(2) Details shall be determined by law. 

Art. 68. Every governmental or executive act of the Presi- 
dent shall also bear the signature of the member of the Govern- 
ment responsible for its execution. 

Art. 69. The same provisions shall apply to the Vice- 
president that apply to the President of the Republic. 

The Government 

Art. 70. (1) The Prime Minister and other ministers of the 
Government shall be appointed and dismissed by the President 
of the Republic. 

(2) The official seat of the Government shall be in Prague 
(Article 6, Paragraph 2). 

Art. 71. The Government shall choose from among the 
members a Deputy Prime Minister. Should this Deputy fail to 
attend, he shall be represented by the oldest member of the 
Government. 

Art. 72. The President of the Republic shall determine as 
to which member of the Government shall direct each depart- 
ment. 

Art. 73. The members of the Government shall take an 
oath before the President on their honor and conscience that 
they will conscientiously and impartially perform their duties 
and abide by the constitution and other laws of the Repub- 
lic. 

Art. 74. No member of the Government shall be a member 
of the board of directors or controllers or a representative of 
any limited liability company, carrying on a business for profit. 

Art. 75. The Government shall be responsible to the Cham- 
ber of Deputies, which may vote its lack of confidence in the 
Government. Such a vote shall be valid if more than half of 
all the members are present, if a 50 per cent, majority be ob- 
tained, and if the vote be taken by roll call. 

Art. 76. Every motion for a vote of lack of confidence shall 
be signed by not less than a hundred deputies and shall be re- 
ferred to a committee which must report thereon within eight 
days. 

Art. 77. The Government may bring forward before the 
Chamber of Deputies a proposal for a vote of confidence. Such 



CZECHOSLOVAKIA 327 

proposal shall be acted upon without being referred to a com- 
mittee. 

Art. 78. (1) Should the Chamber of Deputies vote lack of 
confidence in the Government or should it reject the Govern- 
ment's proposal for a vote of confidence, the Government shall 
resign to the President. The President shall then determine 
who shall direct governmental affairs until a new Government 
be formed. 

(2) Should the Government resign at a time when there is no 
President or Vice-president, the decision as to the resignation 
and as to the direction of governmental affairs shall be referred 
to the committee defined under Article 54. 

Art. 79. (1) Should the Prime Minister or any other mem- 
ber of the Government either consciously or from gross neglect 
violate the constitution or other laws while acting in his official 
capacity, he shall be responsible at law. 

(2) The right of prosecution shall be reserved to the Chamber 
of Deputies (Article 34). The trial shall be conducted by the 
Senate. 

(3) Details shall be determined by law. 

Art. 80. The Government shall be competent to act as a 
body if in addition to the Prime Minister or his Deputy more 
than half the Ministers be present. 

Art. 81. The Government shall decide in session: 

(a) Government draft bills for Parliament, Government 
decrees (Article 84), as well as any proposals that the Presi- 
dent may make in the exercise of his right defined under 
Article 47; 

(b) All matters of a political nature; 

(c) Appointments of judges, state officials, and army 
officers of the eighth class and higher grades, so far as such 
appointments shall fall under the jurisdiction of the central 
authorities; as well as proposals for appointments of officials 
nominated by the President of the Republic (Article 64, 
Paragraph 1, Subdivision H). 

Art. 82. The President of the Republic shall have the right 
to be present at and to preside over meetings of the Government 
and to demand from the Government or its individual members 
written reports on any matter in their jurisdiction. 

Art. 83. The President of the Republic shall have the right 
to call the Government or its members to conference. 

Art. 84. Every Government decree shall be signed by the 



328 NEW CONSTITUTIONS OF EUROPE 

Prime Minister or his deputy and the Minister invested with 
its execution. It must be signed by at least half of the members 
of the Government. 



Ministries and Subordinate Administrative Offices 

Art. 85. The competence of Ministries shall be determined 
by law. 

Art. 86. In subordinate administrative offices the citizens 
must so far as possible be represented, and the widest protec- 
tion of the rights and interests of the citizens shall be assured. 

Art. 87. (1) No one may hold at the same time an elective 
subordinate office and an office which has jurisdiction over the 
former. 

(2) Exceptions to this rule shall be determined by law. 

Art. 88. (1) A court composed of independent judges, 
having jurisdiction throughout the Republic, shall hear final 
appeals for protection against administrative rulings. 

(2) Details shall be determined by law. 

Art. 89. The lower offices of state administration shall be 
defined in principle by law, the detail execution of which may 
be regulated by decrees in council. 

Art. 90. State offices charged with financial functions but 
without executive power shall be established and organized by 
Government decrees. 

Art. 91. The constitution and competence of local autono- 
mous governing bodies shall be determined by special laws. 

Art. 92. Special laws shall provide for the guarantee by the 
state against damages caused by unla'w^ul execution of public 
offices. 

Art. 93. State officials in their official functions shall abide 
by the constitution and other laws. The same shall apply 
to non-official members of administrative bodies. 

section iv 
Judicial Powers 

Art. 94. (1) The law shall be administered by public law 
courts whose organization, jurisdiction, and procedure shall be 
regulated by law. 

(2) No one shall be tried other than before his legal judge. 

(3) Only in cases of criminal procedure, may courts be estab- 



CZECHOSLOVAKIA 329 

lished for a limited period in cases specified in advance by 
law. 

Art. 95. (1) Jurisdiction in civil matters shall be reserved 
to civil courts, either ordinary or extraordinary, and courts 
of arbitration; jurisdiction in criminal matters shall be reserved 
to public criminal courts, so far as it shall be not reserved by 
special law for courts martial or so far as these matters cannot 
be dealt with according to general regulations in police or finan- 
cial prosecutions. 

(2) A single Supreme Court of Justice shall be established 
for the whole Czechoslovak Republic. 

(3) The competence and functions of juries shall be deter- 
mined by special laws. 

(4) Trial by jury may be temporarily suspended in cases pro- 
vided for by law. 

(5) The jurisdiction of courts martial may be extended to 
the civil population according to legal regulations in times of 
war only and for acts committed at such times only. 

Art. 96. (1) Judicial power in all courts shall be separated 
from administrative power. 

(2) Solution of disputes as to competence between courts 
and administrative authorities shall be determined by law. 

Art. 97. (1) Conditions as to the qualification of judges 
shall be determined by law. 

(2) The conditions of service of the judges shall be determined 
by law. 

Art. 98. (1) All judges shall be independent in the exercise 
of their conscience and they shall be bound only by law. 

(2) When taking the oath of ofiice judges shall pledge them- 
selves to abide by the law. 

Art. 99. (1) Judges shall be appointed permanently; they 
may be transferred, dismissed, or pensioned against their will, 
only if a new juridical organization be set up for a time specified 
by law, or on the grounds of lawful disciplinary proceedings; 
they may be also pensioned after a valid finding when they have 
attained the age stated by law. Details shall be determined 
by a special law which shall also define the conditions under 
which judges may be suspended. 

(2) Senates at law courts of the first and second instance shall 
be permanent for one year except where specified by law. 

Art. 100. Judges shall not perform other paid functions per- 
manent or temporary, except where permitted by law. 



330 NEW CONSTITUTIONS OF EUROPE 

Art. 101. (1) Verdicts shall be given in the name of the 
Republic. 

(2) Proceedings before law courts shall be verbal and public. 
Verdicts in criminal matters shall always be proclaimed in pub- 
lic. The public may be excluded during the proceedings only 
under circumstances defined by law. 

(3) In criminal proceedings the principle of prosecution shall 
be adopted. 

Art. 102. The judges shall have the right, in determining a 
point of law, to inquire into the validity of a governmental de- 
cree; in the case of a law they can inquire only as to whether it 
was properly promulgated (Article 51). 

Art. 103. (1) The President of the Republic shall have the 
right to grant an amnesty or pardons, to mitigate a sentence 
and the legal consequences of verdicts of criminal courts, espe- 
cially the loss of the suffrage right to the National Assembly and 
other representative bodies : he shall also have the right to order 
the abolition or the suspension of criminal legal proceedings with 
the exception of proceedings in which the action is brought 
by private individuals. 

(2) These rights shall not be exercised by the President in 
the case of members of the Government accused or sentenced 
according to Article 79. 

Art. 104. A special law shall define the responsibility of the 
state and judges for any damages caused by the latter's breach 
of right in performing their duties. 

Art. 105. (1) In cases of private property claims, coming for 
adjudication before an administrative authority, in which the 
plaintiff is dissatisfied with the decision of the latter, he may, 
after exhausting corrective efforts, appeal to the courts. 

(2) Details shall be determined by law. 



section v 

Rights, Liberties, and Duties of the Citizen 

Equality 

Art. 106. (l) Privileges due to sex, birth, or occupation 
shall not be recognized. 

(2) All persons residing in the Czechoslovak Republic shall 
enjoy within its territory in equal measure with the citizens of 



CZECHOSLOVAKIA 331 

this Republic complete and absolute security of life and liberty 
without regard to origin, nationality, language, race, or religion. 
Exceptions to this principle may be made only so far as is com- 
patible with international law. 

(3) Only such titles may be conferred as designate oflBcial 
rank or a profession. This enactment in no way affects aca- 
demic honors. 



Personal Freedom and Freedom of Property 

Art. 107. (1) Personal freedom shall be guaranteed. De- 
tails shall be laid down by an enactment which shall form part 
of this constitutional charter. 

(2) No person shall be deprived of personal liberty or re- 
stricted in the enjoyment of the same except upon legal grounds. 
Public authorities can demand personal services from a citizen 
only on legal grounds. 

Art. 108. (1) Every citizen of the Czechoslovak state may 
take up his abode wheresoever he will in the Czechoslovak 
Republic, may acquire there real property and carry on any 
calling for the purpose of earning profits within the limits of 
the law. 

(2) This right shall suffer restriction only in the public in- 
terests and on the basis of law. 

Art. 109. (1) Private ownership may be restricted only by 
law. 

(2) Expropriation is possible only on the basis of law. Com- 
pensation shall be given in all cases unless it is or shall be pro- 
vided by law that no compensation be given. 

Art. 110. The right to emigrate abroad may be restricted 
only by law. 

Art. 111. (1) Taxation and public levies generally may be 
imposed only by law. 

(2) Likewise only by law may fines and punishments be pre- 
scribed and imposed. 



Domestic Liberty 

Art. 112. (1) Domestic rights are inviolable. 
(2) Details shall be laid down by a law which shall form part 
of this constitutional charter. 



332 NEW CONSTITUTIONS OF EUROPE 

Freedom of the Press, the Right of Free 
Assembly and Association 

Art. 113. (1) Freedom of the press as well as the right to 
assemble peaceably and without arms and to form associations 
is guaranteed. It is therefore in principle inadmissible to place 
the press under preliminary^ censorship. The manner in which 
the right of forming associations and the right of free assembly 
shall be exercised shall be determined by law. 

(2) An association may be dissolved only when its con- 
duct violates the law of the land or disturbs pubhc peace and 
order. 

(3) Restrictions may be imposed by law especially in cases 
of assembly in places which serve as public thoroughfares, in 
cases of the establishment of associations for the purpose of 
profit, and in cases of the participation of foreigners in political 
associations. The law shall also state what restrictions shall 
be placed on the principles of the foregoing paragraphs in time 
of war or in case of events taking place within the state which 
seriously threaten the republican form of government, the con- 
stitution, or public peace and order. 

Art. 114. (1) The right of association to safeguard and ame- 
liorate conditions of employment and economic conditions shall 
be guaranteed. 

(2) All acts of individuals or societies which constitute an 
intentional violation of this right, are prohibited. 



The Right of Petition 

Art. 115. The right to petition shall be enjoyed by every 
person. Legal persons and corporations shall enjoy this right 
only within the bounds of their competence. 



Postal Inviolability 

Art. 116. (1) Inviolability of matter entrusted to the mail 
is guaranteed. 

(2) Details shall be determined by enactment. 

^Under the Austrian regime publications were submitted to the censor before 
being issued. 



CZECHOSLOVAKIA 333 

Liberty of Instruction and of Conscience; 
Liberty of Expressing Opinion 

Art. 117. (1) Every person may within the Hmits of the 
law express his or her opinion by word, in writing, in print, by 
picture, etc. 

(2) The same appHes to legal persons within the limits of 
their competence. 

(3) No one shall suffer in the sphere of his work or employ- 
ment for exercising this right. 

Art. 118. Scientific research and the publication of its re- 
sults, as well as art, are free so far as they do not violate the 
penal code. 

Art. 119. Public instruction shall be given so as not to be 
in conflict with the results of scientific investigation. 

Art. 120. (1) Private establishments for instruction and 
education are permitted to be set up only within the limits of 
the law. 

(2) The supreme authority and control over all instruction 
and education shall be in the hands of the state. 

Art. 121. Liberty of conscience and religious creed is guaran- 
teed. 

Art. 122. All inhabitants of the Czechoslovak Republic 
enjoy in the same degree as the citizens of the Republic, the 
right to profess and exercise publicly and privately any creed, 
religion, or faith whatsoever, so far as the exercise of the 
same is not in conflict with public law and order or with mo- 
rality. 

Art. 123. No one shall be compelled either directly or indi- 
rectly to take part in any religious rite or ceremony whatsoever, 
rights pertaining to paternal or guardian authority being never- 
theless respected. 

Art. 124. All religious confessions shall be equal before the 
law. 

Art. 125. The performance of specific religious rites may be 
prohibited if they are in conflict with pubHc order or public 
morals. 

Marriage and Family 

Art. 126. Wedlock, family, and motherhood shall be under 
the special protection of the law. 



334 NEW CONSTITUTIONS OF EUROPE 

Military Service 

Art. 127. (1) Every able-bodied citizen of the Czechoslovak 
Republic shall undergo military training and shall obey the 
summons when called upon for the defence of the state. 

(2) Details shall be settled by enactment. 

section vi 

Protection of National, Religious, and Racial Minorities 

Art. 128. (1) All citizens of the Czechoslovak Republic shall 
be in all respects equal before the law and shall enjoy equal civic 
and political rights whatever be their race, their language, or 
their religion. 

(2) Difference in religion, belief, confession, or language shall 
within the limits of the common law constitute no obstacle to 
any citizen of the Czechoslovak Republic particularly in regard 
of entry into the public services and offices, of attainment to 
any promotion or dignity, or in regard to the exercise of any 
trade or calling. 

(3) Citizens of the Czechoslovak Republic may, within the 
limits of the common law, freely use any language they choose 
in private and business intercourse, in all matters pertaining to 
religion, in the press and in all publications whatsoever, or in 
public assemblies. 

(4) This, however, does not affect the rights conferred on the 
state organs in these matters by law^s already in force or to be 
passed in the future with a view to pubHc order, the security 
of the state, or effective control. 

Art. 129. The principles on which the rights as to language 
in the Czechoslovak Republic are based shall be determined by 
a special enactment which shall form part of this constitutional 
charter. 

Art. 130. In so far as citizens of the Czechoslovak Republic 
are entitled by the common law to establish, manage, and ad- 
minister at their own cost philanthropic, religious, or social 
institutions, they are all equal, no matter what be their national- 
ity, language, religion, or race, and may, in such institutions, 
make use of their own language and worship according to their 
own religious ceremonies. 

Art. 131. In towns and districts in which there lives a con- 
siderable fraction of Czechoslovak citizens speaking a language 



CZECHOSLOVAKIA 335 

other than Czechoslovak, the children of such Czechoslovak 
citizens shall, in public instruction and within the bounds of 
the general regulations relating thereto, be guaranteed a due 
opportunity to receive instruction in their own tongue. The 
Czechoslovak language may at the same time be prescribed as a 
compulsory subject of instruction. 

Art. 132. In towns and districts where there is living a con- 
siderable fraction of Czechoslovak citizens belonging to some 
minority, whether in respect of religion, or nationality, or lan- 
guage, and where specific sums of money from public funds as 
set out in the state budget or in the budget of local or other 
public authorities, are to be devoted to education, religion, or phi- 
lanthropy, a due share in the use and enjoyment of such sums 
shall be secured to such minorities within the limits of the 
general regulations for public administration. 

Art. 133. The method of carrying out the principles em- 
bodied in Articles 131 and 132, and especially the interpretation 
to be assigned to the expression "considerable fraction, " shall 
be determined by special enactment. 

Art. 134. Every manner whatsoever of forcible denational- 
ization is prohibited. Non-observance of this principle may be 
proclaimed by law to be a punishable act. 
Follow the Signatures: 
T. G. Masaryk Tusar Stanek Houdek 



THE LAW OF FEBRUARY 29, 1920 

IN PURSUANCE OF ARTICLE 129 OF THE CONSTITUTIONAL CHARTER 

ESTABLISHING THE PRINCIPLES OF LANGUAGE RIGHTS 

WITHIN THE CZECHOSLOVAK REPUBLIC 

Article 1. The Czechoslovak language shall be the state, 
official language of the Republic (Article 7 of the Treaty made 
between the leading Allied and Associated Powers and the 
Czechoslovak Republic and signed at St. Germain-en-Laye on 
September 10, 1919). 

It is thus in particular the language : 

(1) In which the work of all the courts, offices, institutions, 
undertakings, and organs of the Republic shall be conducted, 
in which they shall issue their proclamations and notices as 
well as their inscriptions and designations. (Exceptions to 



336 NEW CONSTITUTIONS OF EUROPE 

this section are laid do\\Ti in Article 2 and Article 5 as well as 
in Article 6 relating to Russinia.) 

(2) In which the principal text on state and other banknotes 
shall be printed. 

(3) Which the armed forces of the country shall use for the 
purpose of command and as the language of the service; in deal- 
ings with men and companies not knowing this language their 
mother tongue may also be used. 

Detailed regulations will be issued as to the duty of state 
officials and employees, as well as of officials and employees 
of state institutions and undertakings, to know the Czechoslovak 
language. 

Art. 2. In respect of national and language minorities (Chap- 
ter I, Treaty of St. Germain) the following rules shall apply: 

It shall be the duty of courts, offices, and organs, of the Re- 
public whose competence relates to a jurisdictional district in 
which according to the latest census at least 20 per cent, of the 
citizens speak the same language — and that a language other 
than Czechoslovak — to accept (in all matters which they have 
to settle on the ground of their competence applying to such a 
district) from any member of this minority any complaints in 
this language and to deal with complaints not only in the 
Czechoslovak language but also in that in which the complaint 
itself is presented. \Miere there are several district courts in 
one community, that whole community shall be deemed to be 
a single jurisdictional district. 

It shall be laid down by regulation to what extent and for 
what courts and offices it will be possible to restrict the settle- 
ment of cases to the language of the parties themselves. These 
courts and offices are those whose competence is limited to one 
district, namely a district with such a national minority, as 
well as courts and offices immediately subordinate to them. 

Under similar conditions, it is the duty of the public prosecu- 
tor to frame the charges against an accused speaking another 
tongue in this language, too, or even in this language alone. 

The executive authority shall determine in such cases what 
language shall be used. 

If the party to any matter is not the initiator of the proceed- 
ings, he shall (if the other conditions of Article 2 are fulffiled) 
be entitled on the same principles to have his case dealt with 
also in his own language, or even in it alone so far as it is known, 
or otherwise at his request. 



CZECHOSLOVAKIA 337 

In districts where there Hves a national minority in the terms 
of Article 2, the language of the national minority shall be used 
concurrently with the Czechoslovak language in proclamations 
and notices issued by the state courts, offices, and organs and 
for their inscriptions and designations. 

Art. 3. It is the duty of autonomous oflSces, representative 
councils, and all public corporations in the state whatsoever to 
accept and to deal with oral or written matter in the Czecho- 
slovak language. 

It shall always be possible to make use of this language in 
meetings and conferences; proposals and suggestions put for- 
ward in this language must be dealt with. 

The state executive authority shall determine upon the lan- 
guage to be used for public proclamations and notices and 
for the inscriptions and designations for which the autonomic 
oflBces are responsible. 

It is the duty of the autonomous offices, representative 
councils, and public corporations to accept — under the con- 
ditions of Article 2 — all matters presented to them in a lan- 
guage other than Czechoslovak, and to deal with the same, and 
also to permit the use of another language in meetings and con- 
ferences. 

Art. 4. The state offices, using the state official language, 
shall, in their official proceedings in those parts of the Republic 
which before October 28, 1918, pertained to the Kingdoms and 
Lands represented in the Imperial (Austro-Hungarian) Coun- 
cil or to the Kingdom of Prussia, use regularly the Czech lan- 
guage, in Slovakia regularly the Slovak language. 

Matters presented in the Czech language and officially dealt 
with in Slovak or presented in Slovak and dealt with in Czech 
shall be deemed to have been dealt with in the language in which 
they were presented. 

Art. 5. The instruction in all schools established for mem- 
bers of a national minority shall be given in their language. 
Likewise educational and cultural institutions set up for them 
shall be administered in their language. (Article 9, Treaty 
of St. Germain.) 

Art. 6. The Diet which shall be set up for Russinia shall have 
the right reserved to it for settling the language question for 
this territory in a manner consonant with the unity of the 
Czechoslovak State. (Article 10, Treaty of St. Germain.) 

Until this settlement has been made this law shall apply. 



338 NEW CONSTITUTIONS OF EUROPE 

due regard, however, being paid to the special circumstances 
of that territory in respect of language. 

Art. 7. Disputes regarding the use of a language in the 
courts, ofBces, institutions, undertakings, and organs of the state, 
as well as in the autonomous offices and public corporations, shall 
be settled by the competent organs of state control as matters 
of state administration detached from the causes out of which 
they arose. 

Art. 8. Details as to the carrying out of this law shall be 
fixed by the state executive authority which -^nll, in the spirit 
of this law, lay down rules regulating the use of languages 
for autonomous offices, representative bodies, and pubUc cor- 
porations, as well as for those offices and public organs whose 
competence extends to districts which are less than juris- 
dictional districts, or for organs which have no district of their 
o^\Ti. 

The rules shall also prescribe what measures shall be taken 
towards facilitating the dealings of officials with persons who do 
not speak the language in which the court, office, or organ con- 
ducts its business in the sense of this law. They shall also 
prescribe the measures to be taken to protect the different par- 
ties from legal damage which might accrue to them from igno- 
rance of the language in question. 

Exceptions to the terms of this act necessary for securing un- 
disturbed administration may also be made by regulation for 
the period of five years commencing from the day on which this 
law comes into force. 

Finally, rules shall be laid dovm which are essential for securing 
the successful carrying out of this law. 

Art. 9. This law shall come into force on the day on which 
it is promulgated. It abrogates all rules relating to language 
which were in force previous to October 28, 1918. 

All the Ministers are entrusted with the execution of this law. 



T. G. AL\SARYK, 


Prasek, 


TUSAK, 


Vesely, 


Staxek, 


Klofac, 


HOUDEK, 


Heidler, 


Benes, 


Winter, 


SOXXTAG, 


Franke, 


Habrman, 


Hampl. 



CZECHOSLOVAKIA 339 



THE LAW OF FEBRUARY 29, 1920 

setting forth the constitution and jurisdiction 
of the senate 

section i 
The Constitution of the Senate 

Article 1. The Senate of the Czechoslovak Republic shall 
consist of 150 elected members. No one may be at the same 
time a member of the Chamber of Deputies and of the Senate. 

If the elections to the one chamber follow within four weeks 
at the latest after the elections to the other, no one may stand 
as candidate for both chambers. The election of a candidate 
in defiance of this enactment is invalid. 

Any one who, in any other case than that just referred to, be- 
ing a member of the Chamber of Deputies, is elected Senator, 
or vice versa, being a member of the Senate is elected to the 
Chamber of Deputies, shall take his seat in that chamber to 
which he has been last elected. 

Art. 2. The rules of franchise laid down for elections to the 
Chamber of Deputies shall be applicable to elections for the 
Senate except in such cases as this law otherwise provides. 

Art. 3. All citizens who have the right to vote at elections 
to the Chamber of Deputies are entitled to vote at elections to 
the Senate if they have attained on the day of the publication 
of the standing lists of voters (Law of December 19, 1919, 
No. 663, Code of Laws and Regulations) the age of 26 years. 

Art. 4. Citizens of the Czechoslovak Republic without re- 
gard to sex may be elected to the Senate if, on the day of elec- 
tion, they have attained the age of 45 years, have been for at 
least ten years citizens of the Czechoslovak Republic, and are 
not excluded from the franchise. For elections which shall take 
place up to the end of the year 1928, this condition of ten years* 
citizenship shall not be required. 

Art. 5. The Senate shall be elected for a period of eight 
years. 

Art. 6. If the elections to the Senate take place within four 
weeks at the latest of the day on which the elections to the 
Chamber of Deputies took place, the polling committees of the 
constituencies and the central polling committee which were in 



340 NEW CONSTITUTIONS OF EUROPE 

charge of the elections of the Chamber of Deputies shall also 
take charge of the elections to the Senate. 

Representatives of parties who have not put forward valid 
lists of candidates for the Senate may not be members of these 
committees; on the contrary these committees shall be composed 
of representatives of those parties which put forward no candi- 
dates for the Chamber of Deputies but presented valid lists of 
candidates for the Senate. Article 9 and Article 11 of the rules 
of franchise for the Chamber of Deputies are to be applied in 
this matter. 

Except in the case stated in Paragraph 1, the polling commit- 
tees of the constituencies and the central polHng committee 
must be constituted anew. 

Art. 7. In every constituency which elects members to the 
Senate a district polling committee shall be set up. The rules 
of franchise for elections to the Chamber of Deputies relating 
to district polling committees apply by analogy thereto. 

A district polling committee for elections to the Senate has 
the same competence in the matter of elections to the Senate 
as a district polling committee, set up in pursuance of Article 
10 of the rules of franchise for election to the Chamber of 
Deputies, has in respect of elections to the Chamber of Deputies. 

Art. 8, In the case stated in Article 6, Paragraph 1, citizens 
who are not entitled to vote at the elections to the Senate may 
be members of a committee which has charge of elections to the 
Senate. 

Art. 9. The constituencies electing Senators shall be com- 
posed of constituencies which elect members to the Chamber 
of Deputies. 

(Here follows an enumeration of the electoral districts. There 
are in all 13 senatorial constituencies electing respectively 23, 
11, 15, 14, 15, 17, 16, 10, 7, 5, 9, 4, and 4 Senators.) 

Art. 10. If the Senate be dissolved by the President of the 
Republic or if the term for which it was elected expire, the Min- 
ister of the Interior shall cause new elections to take place 
within sixty days. 

Art. 11. The Minister of the Interior shall issue to an elected 
Senator a letter of credence which shall entitle him to enter the 
Senate and to take part in its proceedings. This right shall 
lapse should the election of such a Senator be declared invalid 
by the electoral court. 

Art. 12. At its first assembly which shall be opened by the 



CZECHOSLOVAKIA 341 

Prime Minister and presided over by the senior Senator, the 
Senate shall elect from among its own members a Chairman and 
two Deputy Chairmen. 

The proceedings of the Senate shall be regulated within the 
limits of the law relating to rules of procedure, by rules of pro- 
cedure determined upon by the Senate itself. Until such rules 
shall be determined upon, the rules of procedure passed by the 
hitherto existing National Assembly shall remain in force. 

Art. 13. At the first assembly of the Senate and previous 
to the elections of Chairman and Deputy Chairmen, the Senators 
shall take the oath in the presence of the Prime Minister as 
provided by Article 22 of the constitutional charter. Refusal 
to take the oath or the taking of it with reservation shall entail 
the immediate loss by the member of his seat( Article 22 of the 
constitutional charter). 

The same applies to Senators who subsequently enter the 
Senate; they take the oath in the presence of the Chairman of 
the Senate. 

Art. 14. Senators are entitled to such remuneration as shall 
be fixed by law. 

The Jurisdiction of the Senate 

Art. 15. The Senate shall cooperate in the exercise of legisla- 
tive authority as laid down by the constitutional charter. 

Art. 16. The Senate is entitled to pass judgment where an 
accusation is brought by the Chamber of Deputies: 

(1) Against the President of the Republic for high treason 
(Article 67 of the constitutional charter) ; 

(2) Against members of the Government for violation of 
constitutional or other laws (Article 79 of the constitutional 
charter) . 

SECTION II 

The first elections to the Senate of the Czechoslovak Republic 
shall take place to the exclusion of the 12th and 13th constit- 
uencies as well as to the exclusion of the district of Hlucin from 
the 7th constituency, the district of Vitoraz from the 5th con- 
stituency, the district of Valcice from the 6th, and to the ex- 
clusion of the territories of Spis and Orava which are the subject 
of a plebiscite. 

The second and third scrutinies [under the scheme of pro- 



342 NEW CONSTITUTIONS OF EUROPE 

portional representation] shall take place for the other elections 
without regard to elections in these last mentioned districts. 

The territories excluded from the first elections shall, for the 
first period for which the Senate is elected, elect their Senators 
later in a manner which will be fixed by regulation. 

The Government shall take steps to secure for legionaries the 
exercise of their franchise rights and shall assign to them seats 
which may happen to be superfluous in some of the electoral 
districts. 

SECTION in 

This law shall come into force simultaneously with the law 
which served as the introduction to the constitutional charter. 

The execution of it shall be entrusted to the Minister of the 
Interior. 

T. G. Masabyk Tusab Stanek 



CHAPTER XIV 
JUGOSLAVIA 



1. HISTORICAL NOTE 

One of the most important and complex problems of 
nationality confronting the Peace Conference was that 
of the Jugoslavs or South Slav peoples. They reached 
their present seats during the great migration period of 
the sixth and seventh centuries, a. d., and the main body 
of them never split up irremediably.^ In 1914 these 
Jugoslavs were divided among four separate kingdoms — 
Montenegro, Serbia, Hungary, and Austria. In Austria- 
Hungary itself the Jugoslavs lived under five distinct admin- 
istrations. Bosnia-Herzegovina was under joint Austro- 
Hungarian administration; Slovenia, Istria, and Dalmatia 
were controlled directly by Austria ; the Kingdom of Cro- 
atia, including both Serbs and Croats, was subject to 
Hungary; Fiume was a separate district under Hungary; 
while the Serbs of South Hungary were under direct 
Hungarian control.^ 

The problem of the Jugoslavs was acute before the be- 
ginning of the war. A thoroughgoing solution would have 
necessitated the break-up of the Austro-Hungarian king- 
dom, or at least concessions by it of a high degree of 
national autonomy. Since these contingencies seemed 



^For brief histories of the southern Slavs and accounts of the development of 
the problem that existed upon the outbreak of the war, see Arnold Toynbee, 
Nationality and the War, pp. 167-216 (London, 191.5) and Stoddard and Frank, 
The Stakes of the War, Chapter XI (New York, 1918). 

'Temperley, Ed., A History of the Peace Conference of Paris, Vol. IV, p. 171 
ff. (London, 1921). This chapter, "The Liberation of the New Nationalities," 
has been largely relied upon in the preparation of this introductory note. 

S43 



The 

Jugoslavs 
in 1914 



Proposed 
solutions of 
Jugoslav 
problem 



344 NEW CONSTITUTIONS OF EUROPE 



1. Repres- 
sion 



2. Trialism 



3. Greater 

Serbia 



outside of the realm of practical politics, attention was de- 
voted to three more limited proposals all of which were 
unsatisfactory. They would have done little to meet 
the demands which came from the growing and menacing 
sense of national solidarity among the Serbs, Croats, 
and Slovenes. 

The first proposed solution was Repression. It was 
believed in Austria-Hungary that the unrest among the 
Jugoslavs was largely fomented in Belgrade; but the 
apparently simple policy of treating manifestations of 
nationalism as treason and of using the sword against 
Serbia involved serious difficulties. Russia would natu- 
rally object to any harsh dealing with Serbia, and there 
would unquestionably be an increase of Jugoslav opposi- 
tion within the Monarchy itself if this policy was 
attempted. The militarist party under Conrad von Hoetz- 
endorff had long advocated this policy. His last memo- 
randum urging it was dated June 21, 1914 — the week before 
the death of Franz Ferdinand. 

The second proposal went by the name of Trialism. 
The plans differed considerably in detail ; but their common 
principle was that in place of the dualistic system of 
Austria-Hungary with two units dominated by the Ger- 
mans and Magyars respectively, there should be three 
units with the Slavs in control of the third. Such a settle- 
ment, however, would not be satisfactory if the proposed 
third unit did not include the Slovenes; but the Magyars 
could not be persuaded to give up their hold on Croatia 
and Fiume, and the Serbs both in Serbia and Austria- 
Hungary would have nothing to do with any proposal 
favored by the Hapsburg dynasty itself. 

A third suggestion for the solution of the problem of 
Jugoslavia was a Greater Serbia. It proposed to bring 
into Serbia all the Jugoslavs who professed the orthodox 
religion and used the Cyrillic alphabet. But it was mani- 
fest that the creation of a Serbia of such dimensions could 



JUGOSLAVIA 



345 



result only from military victory over the Hapsburg Mon- 
archy. 

The ultimate solution of the Jugoslav problem entered 
the field of practical f)olitics only with the progress of 
the war. This solution was that all Jugoslavia be set 
wholly free from Austria and Hungary. Jugoslav patriots 
formed a committee in London in 1915 and issued their 
program for a united and free Jugoslavia, but the En- 
tente as a whole had no policy. The hopes and fears 
of the Jugoslavs were variously affected by the Treaty 
of London of 1915, the declaration of war by Italy, the 
death of the Emperor Francis Joseph (November, 1916), 
the Allied war aims issued in December, 1916, when the 
Central Empires began their overtures for peace, the 
Russian Revolution, and the entrance of America into 
the war.^ In July, 1917, the Serbian Prime Minister and 
the President of the Jugoslav Committee issued the Mani- 
festo (Pact) of Corfu which laid down the outlines of the 
future Kingdom of the Serbs, Croats, and Slovenes. This 
was after the Russian Revolution when there was no rea- 
son why the Serbian Government should not openly adhere 
to the program of a united Jugoslavia. This Manifesto 
was a decisive point in the Jugoslav movement; for while 
there was no official action, a favorable reception was ac- 
corded to it in Entente countries. 

By August, 1918, the authority of the Austro-Hungarian 
government was coming to an end in Slovene lands. The 
connection with the Hapsburg Monarchy was denounced; 

^For a full account of the Jugoslav movement during the war, see Temperley, 
Ed., op. ciL, Vol. IV, pp. 176 S. In 1917 the Austrian Government found itself in a 
position of great difficulty owing to the fact that in the Reichsrat the Slavs were in 
a small majority over any combination of the other racial representatives. The 
passage of the budget was necessary, and consequently the Government issued 
a number of hints as to local autonomy. When the Reichsrat met (May 30, 
1917) the Jugoslav Club issued a declaration demanding "the unification of all 
territories of the monarchy inhabited by Slovenes, Croats, and Serbs in one 
independent political body free from all foreign domination and foimded on a 
democratic basis under the sceptre of the Hapsburg DjTiasty." In subsequent 
Jugoslav declarations the reference to the House of Hapsburg was usually 
omitted. 



Jugoslav 
movement 
during 
the war 



Assumption 
of political 
power 



346 NEW CONSTITUTIONS OF EUROPE 



Jugoslavia 
or Greater 
Serbia 



Constituent 
assembly 
of 1920 



and local councils were organized in the provinces to take 
over the direction of affairs from the imperial and royal 
authorities. The Jugoslav parts of the Monarchy united 
and the government automatically passed into their hands. 
For the moment Jugoslavia was recognized by no one be- 
yond its own frontiers except the Austrian Emperor, who 
on October 31 sanctioned the transference to it of the 
Austro-Hungarian fleet on the Adriatic. 

All Austrian and Hungarian solutions of the Jugo- 
slav question were now impossible. The problem was 
whether the mutual jealousies of the Serbs and Croats 
were still strong enough to force the creation of a Greater 
Serbia and a separate Croatia, or whether the unity of 
the race would at last produce a united Jugoslavia. Union 
was decided upon. In November a joint Cabinet was 
instituted and the military forces were merged into one 
army. On December 4 the Kingdom of the Serbs, 
Croats, and Slovenes was proclaimed. It was formed of 
the former Kingdom of Serbia, to which were joined the 
former Kingdom of Montenegro^ and the districts of 
Bosnia, Herzegovina, Croatia, Dalmatia, Slavonia, a part 
of western Bulgaria, and part of the Banat of Temesvar.^ 
The Croats and Slovenes wished to call their state Jugo- 
slavia, but the Serbs opposed this energetically. They 
did not wish an appellation in which the word Serb would 
disappear.' 

Elections for a constituent assembly to draft a constitu- 
tion were held on November 28, 1920, and resulted as fol- 
lows: Democrats, 94; Radicals, 93; Communists, 58; 
Radich (Croatian autonomy), 50; Bosnian Moslems, 24; 
Catholic Popular . party , 23; Peasants, 39; Social Demo- 
crats, 10; National Socialists (Slovene), 2; minor parties, 



^For the attitude of Montenegro, see Temperley, Ed., op. cit.. Vol. IV, p. 203. 

i'Bo'svman, The New World, p. 253 (Yonkers 1922). 

'Albert Mousset, "La Constitution Yougoslave," L' Europe Nouvelle, July 30 
1921. 



JUGOSLAVIA 



347 



0,6} Work on the constitution was delayed because of 
disagreement on a number of issues, the chief of which 
was that of a federal versus a unitary state.^ A constitu- 
tional monarchy was determined upon, but the peasant 
and clerical parties of Croatia desired to set up a republic' 
The constituent assembly, however, completed its work, 
and the constitution went into efifect on June 28, 1921. 

The new constitution owes a great deal to the Serbian 
Constitution of 1888, which was reenacted in 1903, and 
which, in turn, is heavily indebted to the Belgian Constitu- 
tion. In fact, as two recent writers point out, "the more 
one compares the constitutions of Serbia^ and Jugoslavia, 
the less one is inclined to call the latest promulgation a 
new constitution at all; it seems to be rather an extension 
of the old instrument to cover new territory, rather than 
a totally new instrument for the administration of govern- 
ment. 

"The older document provided for representative par- 
liamentary government under, of course, the same Mon- 
arch, Peter I (1903), who was the King upon the passage 
of the present constitution. It emphasized, as this does, 
the parliamentary type of government. There was then, 



1" Record of Political Events," Political Science Quarterly, Supplement, p. 97, 
September, 1921. 

"See above, pp. 77-78. 

'A Committee which signs itself "the 63 Delegates of Croatia, Slavonia, 
Dalmatia, and Bosnia-Herzegovina united in the 'Croatian Block,' " issued a 
manifesto dated February, 1922, and addressed "to all free civilized nations 
and to the delegates at the Conference of Genoa." The manifesto declared 
that the Croatian nation was not represented in the Constituent Assembly — 
the majority of the Croatian national deputies having decided not to send repre- 
sentatives — and that "the Croatian Nation will neither recognize this Assembly 
nor accept its decisions brought against the will of the Croatian people and in 
the absence of its delegates." It is charged that the Constitution "was forced 
upon the Croatian nation in a fraudulent manner and has no moral or legal basis." 
See also M. W. Fodor, "A New Country but Old Mistakes," Foreign Affairs, 
April. 1922. 

*The Serbian Constitution of 1903 appears in French translation in British and 
Foreign State Papers, Vol. 81, p. 508 and Vol. 108, p. 566; Dareste, Les Constitu- 
tions Modernes, Vol. II, p. 257 (3d ed., Paris, 1910), and Wright, The Constitu- 
tions of the States at War, 1914-1918, p. 553 (Washington, 1919). 



Constitution 
of 1921 
similar to 
Serbian 
Constitution 
of 1903 



348 NEW CONSTITUTIONS OF EUROPE 

also, but a single chamber in the legislative branch. The 
provisions in regard to budgetary control, and even for 
the sessions of the legislature, resembled those provided 
for in 1921. In this year again reappears the Court of 
Accounts, the Council of State, and you find similar pro- 
visions for the jury in 1921 as in 1903. The earlier con- 
stitution, like the later, provides for proportional represen- 
tation in elections and the scrutin de liste. 

"Still more important it is to note that the great space 
given to the detailed Bill of Rights in the Jugoslav con- 
stitution goes back to the many clauses in the Serbian 
constitution, which seemed to have caused as much re- 
mark then as these same provisions do now."^ 

2. CONSTITUTION OF THE KINGDOM OF THE SERBS, 
CROATS, AND SLOVENES (JUGOSLAVIA) 

Adopted by the National Assembly in Belgrade on June 
15, 1921, and Proclaimed by the King on June 28, 1921 

section I 
General Provisions 

Article 1. The government of the Kingdom of the Serbs, 
Croats, and Slovenes is a constitutional parliamentary and he- 
reditary monarchy. The official title of the government is the 
Kingdom of the Serbs, Croats, and Slovenes. 

Art. 2. The coat of arms of the Kingdom is a double-headed 
white eagle with wings widespread upon a red shield; the crown 
of the Kingdom is directly above both heads of the double- 
headed white eagle; upon the breast of the eagle is a shield hav- 
ing thereon the Serbian coat of arms, consisting of a white cross 

'Wolfe and Andrews, "The Jugoslav Constitution," Current History, February, 
1922. The translation of the Jugoslav Constitution that follows was made by 
John R. Palandech, a Serbian publisher, and appeared in the Chicago Daily 
News Almanac and Year Book for 1922, page 711. It has been revised by the 
Legation of the Kingdom of the Serbs, Croats, and Slovenes in Washington and 
corrections suggested by the Legation have been incorporated. Another 
English translation by Howard Webster Wolfe and Arthur Irving Andrews ap- 
peared in Current History, February, 1922. An excellent French version was 
published in L'Europe Nouvelle, July 30 and August 6, 1921. 



JUGOSLAVIA 349 

upon a red shield, with one jewel in each angle of the cross; the 
Croatian coat of arms, consisting of a shield with twenty-five 
squares alternately of red and silver color; the Slovenian coat 
of arms, consisting of three gold six-angled stars upon a blue 
shield. Under this is a white half moon. 

The flag is blue, white, and red, in horizontal stripes against 
an upright spear. 

Art. 3. The official language of the Kingdom is Serbo- 
Croatian-Slovene . 

section ii 
Fundamental Rights and Duties of Citizenship 

Art. 4. The right of citizenship is equal (uniform) in the en- 
tire kingdom. All the citizens are equal before the law. All 
enjoy equal protection of the authorities. Nobility and titles 
are not recognized, neither are any privileged rights of birth. 

Art. 5. Personal liberty is guaranteed. No one can be held 
responsible or imprisoned or deprived of his liberty by any one 
except in cases provided by law. No one can be imprisoned 
for any crime without written statements giving the reasons 
and facts substantiating the charges of the competent authori- 
ties. The charges must be submitted to the party accused at 
the time of arrest, or, if that is not possible, at the latest within 
twenty -four hours from the time of imprisonment. Against an 
order for imprisonment an appeal can be made within three 
days to the competent court. If there is no appeal filed within 
this period the prosecuting authorities must send their decision 
to the court within twenty-four hours. The court must make 
its findings in the period of two days from the time it received 
the decision. The findings of the court are supreme. Organs of 
the authorities who violate these provisions shall be punished 
for unlawful deprivation of liberty. 

Art. 6. No one can be tried except by a competent court. 

Art. 7. No one can be sentenced until he has been authorita- 
tively heard or has been summoned to defend himself according 
to law. 

Art. 8. Punishment can be dealt only by law and applied 
only to the acts for which the law provides and prescribes such 
punishment. 

Art. 9. The death penalty cannot be inflicted for purely 
political crimes, except in cases of accomplished or attempted 



350 NEW CONSTITUTIONS OF EUROPE 

assassination of the ruler and of members of the royal house, 
for which the death penalty is provided in the criminal code. 
Exceptions are made in addition to the above in cases where 
with purely political crimes some other criminal act is committed 
for which the death penalty is provided in the criminal code, 
and also in cases which the military law punishes with the death 
penalty. 

Art. 10. No citizen can be exiled from the country. A 
citizen cannot be forcibly moved within the border of the coun- 
try from one place to another, nor can he be confined in one 
place, except in cases for which the law explicitly provides. Un- 
der no condition can any one be driven out from his native place 
without due process of law. 

Art. 11. The home is inviolable. The authorities cannot 
attempt any search or investigation in the home of a citizen 
except in cases authorized by law and in the manner prescribed 
by law. Before any search can be made the authorities are in 
duty bound to give the person whose home is being searched a 
written notice from the competent authorities on the strength 
of which the search is made. Against this order there is an ap- 
peal to the court of first instance. However, the appeal does 
not delay the process of search. The search must always be 
made in the presence of two citizens. Immediately after the 
search is completed the authorities are bound to give the person 
whose home was searched a statement of the results of the search 
and a signed list of all articles taken for the purpose of further 
investigation. At night the police can enter a private home 
only in cases of extreme necessity or when they are appealed 
to for help from the home. To that act a representative of the 
community or two citizens should be present, except in cases 
where an appeal for help is made. Agents (oJBBcials) of the 
authorities who violate these orders will be punished for an 
unlawful violation of the home. 

Art. 12. Freedom of faith and conscience is guaranteed. 
Acknowledged religious denominations are equal before the law 
and are at liberty to profess their faith publicly. Enjoyment 
of civil and political right is independent of any religious belief. 
No one can be exempt from his civic and military duties and 
responsibilities upon the grounds of his religious belief. Creeds 
that have secured lawful recognition in any part of the kingdom 
are sanctioned. Other creeds can be recognized only by the 
law. Authorized and recognized creeds govern their internal 



JUGOSLAVIA 351 

church activities, affairs, and administration independently, and 
manage their property and funds within the boundary of the 
law. No one is compelled publicly to confess his religious be- 
lief. No one is compelled to take a part in religious activities, 
feasts, ceremonials, and exercises, except at national holidays 
and celebrations, within the manner provided by law for per- 
sons who are subordinate to parental, guardian, or military au- 
thorities. Authorized and recognized denominations may pre- 
serve the ties of their faith with the religious heads outside of 
the borders of the country in so far as the necessity of spiritual 
regulations of the different creeds require. The manner in 
which these ties should be preserved will be regulated by law. 
The disbursement which the national budget provides for law- 
ful religious purposes will be divided among lawful and recog- 
nized spiritual bodies, according to the number of their faithful 
and actually shown necessity. Spiritual representatives cannot 
employ their spiritual authority outside of their spiritual edi- 
fices or outside of their spiritual character, or in any act while 
doing their oflBcial duty in partisan affairs. 

Art. 13. Freedom of press is guaranteed. No measure can 
be instituted that would prevent printing, selling, and distribut- 
ing of literature and newspapers. Censorship can be enforced 
only in time of war or mobilization and that for measures fore- 
seen by law. Distribution and selling of newspapers or printed 
matter which contain libel on the ruler or the members of the 
royal house, foreign ruling heads, national assembly, indirectly 
calling upon the citizens to change the constitution or the na- 
tional laws by force, or which contain offense against public 
morals, are forbidden. However, in these cases the authorities 
are bound to take the matter to court within twenty-four (24) 
hours after the suspension, and the court is in duty bound to sus- 
tain or dismiss the charge within twenty -four hours; otherwise 
the suspension is considered as rescinded. Courts of proper 
jurisdiction decide the matter of damages independently of 
court's decision regarding the suspension. For an offense com- 
mitted by the press the following are responsible: The writer, 
editor, printer, publisher, and distributor. By special law for 
the press it will be decided when and in what cases and in what 
manner any of the above-mentioned persons will be responsible 
for the offense committed through the press. All offenses com- 
mitted by the press will be tried by courts of proper jurisdic- 
tion. 



352 NEW CONSTITUTIONS OF EUROPE 

Art. 14. Citizens have the right of assembly, meetings, and 
conferences. Additional regulations regarding this will be pro- 
vided by law. No person will be permitted to carry arms to 
meetings. Holding of open-air meetings must be announced to 
the proper authorities at least twenty -four hours beforehand. 
Citizens have the right of assembly for any objects that are not 
punishable by law. 

Art. 15. Citizens have the right to petition. Petition can be 
signed by one or more of them, as well as all judicial persons. 
Petitions can be submitted to any of the authorities without 
exception. 

Art. 16. Learning and arts are free and enjoy the protection 
and support of the government. University education is free. 
Education is national. Education is based upon the same foun- 
dation throughout the country, adapting itself to the localities 
for which it is intended. All schools must teach moral uplift and 
broad national ideals in the spirit of national unity and religious 
tolerance. Elementary education is national, general, and com- 
pulsory. Religious training is given according to the wishes 
of the parent or elders, based on their creeds and in accordance 
with their religious beliefs. Technical schools will be established 
according to the needs of vocations. Education is given by the 
government without entrance fees, tuition, or other taxes. The 
manner in which private schools, their like, and under what 
conditions they shall be permitted w ill be provided by law. All 
institutions for education are under government control. The 
government will aid the work of national education. Minorities 
of race and language are given elementary education in their 
mother tongue, under provisions which will be prescribed by 
law. 

Art. 17. The secrecy of letters, telegrams, and telephone 
communication is inviolable, except in cases of criminal investi- 
gations, mobilization, or war. All those who are guilty of viola- 
ting the secrecy of postal, telegraph, or telephone communication 
will be punished according to law. 

Art. 18. Every citizen has the right directly and without 
any one's approval to bring complaint to the court against the 
governmental or self-governing bodies for criminal acts which 
they may commit against him in their official capacity. For min- 
isters, judges, and soldiers under colors, special provisions apply. 
For damages done to citizens by governmental or self-governing 
bodies by illegal performance of their duties, the government or 



JUGOSLA\^A 353 

self-governing bodies are responsible before the proper court. 
The agent in question is responsible to them. Limitation for 
damages expires in nine months. 

Art. 19. To all positions in all branches of government ser- 
vice all citizens are equally eligible under the provisions of the 
law, those by birth as well as those who become naturalized, 
who are of the Serbo-Croat-Slovene nationality. Other nat- 
uralized citizens can obtain government positions only if they 
are residents of the country for ten years, and by special permis- 
sion of the government's council upon the prior recommenda- 
tion of the competent minister. 

Art. 20. Every citizen enjoys the protection of the govern- 
ment in foreign countries. Every citizen is at liberty to with- 
draw from citizenship after he has fulfilled his obligations to 
the government. Extradition of citizens is forbidden. 

Art. 21. Every citizen is obliged to obey the law, serve the 
interest of national unity, defend his native country, and carry 
the national burden according to his earning ability, according 
to the provisions of the law. 

SECTION III 

SocL\L AND Economic Regulations 

Art. 22, The government will endeavor to create for its 
citizens equal opportunity to prepare themselves for profitable 
vocations to which they are inclined. In that direction it will 
establish educational trade organizations and arrange for per- 
manent assistance for education of worthy poor children. 

Art. 23. The laboring classes are under the protection of the 
government. Women and minors must be protected from work 
dangerous to their health. The law provides separate measures 
for the welfare and protection of the workman and prescribes 
working hours in all undertakings. 

Art. 24. Inventions are the property of the inventor and 
enjoy the protection of the government. 

Art. 25. Freedom of negotiation and organization in busi- 
ness affairs is recognized in so far as it does not interfere with 
social interests. 

Art. 26. The government has, in the interest of the whole 
and based upon the spirit of the law, the right and duty to inter- 
vene in the economic affairs of its citizens in the spirit of justice 
and for the prevention of social adversity. 



354 NEW CONSTITUTIONS OF EUROPE 

Art. 27. The government will take care: (1) To improve 
general hygienic and social conditions, which are essential to 
national health; (2) to give special protection to mothers and 
small children; (3) to guard the health of all citizens; (4) to 
check and prevent all the acute and chronic contagious diseases, 
as well as to check the harmful use of alcohol; and (5) to furnish 
free medicine and other necessities for the protection of national 
health to poor and needy citizens. 

Art. 28. Marriage is under the protection of the government. 

Art. 29. The state aids materially national associations; also 
the state aids materially other national economic organizations 
that are not for profit. To such associations and to such eco- 
nomic organizations priorities are given in the transaction of 
business upon equal terms with other private institutions. Laws 
will be formulated as regard the associations which will apply 
to the entire country. 

Art. 30. By special legislation betterment of the agrarian 
conditions will be provided. 

Art. 31. Protection of workmen in case of accident, illness, 
lack of work, incapability, old age, or death will be provided by 
special legislation. 

Art. 32. Invalids, war orphans, war widows, the poor and 
those incapable of work, parents of the killed or those who died 
in the war, enjoy special protection of the state and assistance 
as a mark of appreciation. The question of rehabilitation of 
the invalid and the education of war orphans for work and the 
future will be regulated by law. 

Art. 33. The rights of the workingmen to organize for the 
purpose of improving working conditions is guaranteed. 

Art. 34. To navigation and fisheries will be given special 
attention. The welfare of the seaman in case of sickness, in- 
validity, old age, and death will be provided for by special law. 

Art. 35. The state will supervise the building and maintain- 
ing of all transportation facilities wherever the general national 
interest demands. 

Art. 36. Usury of every description is forbidden. 

Art, 37. Property is guaranteed. Property creates respon- 
sibilities. The use of property must not be to the detriment of 
the whole. Contents, size, and limits of private property are 
filxed by law. Expropriation of private property in the public 
interest is permissible according to law, with just compensation. 

Art. 38. Fidei commissum is abolished. Bequests with 



JUGOSLAVIA 355 

general advantageous purposes are recognized. It will be de- 
termined by legislation what changes of the bequests can be 
made in accordance with change of conditions. 

Art. 39. By the inheritance tax law the government will be 
assured of its participation in the inheritance, having in mind the 
interests of the relations between the heir and the deceased and 
the value of the inheritance. 

Art. 40. The supplying of provisions and other necessities 
for the army is carried out for just compensation. 

Art. 41. Large private forest tracts are expropriated accord- 
ing to law and become the property of the state or its self- 
governing bodies. The law will provide how large forest tracts 
can be property of other lawful public bodies that now exist or 
will be created. Natural forestry, whose cultivation is neces- 
sary for climatical and cultural purposes, also passes over, ac- 
cording to the law of expropriation, to the ownership of the state 
or its self-governing bodies, in so far as forestation cannot be 
done by other means. Large forest tracts which foreign powers 
have given to individual persons become, according to law, 
the property of the state or municipality without any compensa- 
tion to those persons. The forestry law will make provisions 
under which farmers and those who are indirectly occupied 
with tilling the land can benefit by wood-cutting for building 
and fuel; also for grazing purposes in the state forests. 

Art. 42. The feudal system is abolished from the day of the 
liberation from foreign authority. In so far as before that time 
injustice was committed by the feudal system or by its trans- 
formation to self-justification, these conditions must be cor- 
rected by law. Land tenants and land workers in general who 
cultivate lands in tenancy are considered freeholders of govern- 
ment lands without any compensation for the same, and they 
will receive title to the property. 

Art. 43. Expropriation of large estates and their apportion- 
ment to ownership to those who till the lands will be regulated 
by law. The law will provide the kind of compensation that 
will be given expropriated estates. For large estates which 
belong to members of the former alien dynasty and those which 
the foreign powers have granted to individuals, no compensation 
will be given. Land settlements will be carried out primarily 
by the aid of organized colonization societies, seeing that the 
inheritors must be provided with necessary means for success- 
ful production. In colonization and in apportionment of ex- 



356 NEW CONSTITUTIONS OF EUROPE 

propriated lands, needy soldiers have first choice, meaning those 
who have fought for the liberation of the Serbs, Croats, and 
Slovenes and their families. The law will provide the maximum 
possession of property and the cases in which the minimum of 
land cannot be alienated from them. 

Art. 44. For the framing of social and economic legislation 
the economic council is created. Its regulations, duties, and 
competence will be designated by law. 

SECTION rv 
Government Authorities 

Art. 45. All government functions are carried out according 
to this constitution. 

Art. 46. Legislative power is vested in the King and National 
Assembly together. 

Art. 47. Executive power is administered by the King, 
through his responsible ministers, according to the provisions 
of the constitution. 

Art. 48. Judicial power is administered by the courts. Their 
rulings and sentences are pronounced and administered in the 
name of the King, according to law. 

section V 
The King 

Art. 49. The King approves and proclaims the laws, appoints 
government officials, and gives military titles as prescribed by 
law. The King is the supreme commander of the entire military 
forces. He gives decorations and other honorary distinctions. 

Art. 50. The King has the right to grant amnesty for political 
and military offenses. Amnesty nullifies the legal consequences 
of punishable acts, but amnesty cannot interfere in damages al- 
lowed to individual persons. Amnesty can be given before the 
beginning of the proceedings, during the proceedings, or after 
the decision is given. Amnesty is general or individual. For 
amnesty to the ministers it is necessary first to have the concur- 
rence of the National Assembly. However, no amnesty can 
be given to ministers until after the sentence is pronounced. 
The King has the power to pardon. He can pardon, reduce, or 
lighten the sentence. The right to pardon for the crime of the 



JUGOSLAVIA 357 

defendant, on personal appeal, will be provided by the law of 
court procedure in criminal acts. 

Art. 51. The King represents the nation in all intercourse 
with foreign governments. He declares war and makes peace. 
If the country is not attacked or war is not declared against it by 
some other nation, it is necessary first to have the consent of the 
National Assembly to declare a war. If war is declared against 
the country or the country is attacked, the National Assembly 
must be convened at once. 

Art. 52. The Eang calls the National Assembly in regular or 
extra sessions. He opens and closes the sessions in person with 
a message from the throne or through the Council of Ministers 
by a message or a decree. The message from the throne, com- 
munication, or decree must be signed by all the ministers. The 
decree by which one session is adjourned must contain the order 
for the date of calling a new session. The King can at all times, 
in case of national emergency, convene the National Assembly 
which has adjourned. The King has the right to dismiss the 
National Assembly, but the decree of its dismissal must contain 
an order for new election, at the latest within three months' 
time, and an order for convening of the National Assembly, at 
the latest within four months from the day of the dismissal of 
the assembly. The decree to dissolve the National Assembly 
is attested to by all ministers. 

Art. 53. The King cannot rule over some other state at the 
same time without the consent of the National Assembly. If 
the King should, notwithstanding this act, accept the crown of 
some other country it will be considered that he has resigned 
the rulership of the Kingdom of the Serbs, Croats, and Slovenes. 

Art. 54. No act of the King's authority is valid nor can it 
be executed unless it has been signed by the competent minister. 
For all King's actions, verbal or written, signed or unsigned, as 
well as for all his acts of political nature, the competent minister 
is responsible. For the actions of the King, as the commander 
in chief of the army, the minister of war and navy is responsible. 

Art. 55. The King and the heir to the throne are of age when 
they attain 18 years. The King's person is immune. He can- 
not be held responsible nor can a complaint be brought against 
him. This does not apply to the King's personal property. 

Art. 56. In the Kingdom of the Serbs, Croats, and Slovenes 
the ruler is Peter, the first Karagorgjevich. King Peter's suc- 
cessor is Crown Prince Alexander and his male issue from a legal 



358 NEW CONSTITUTIONS OF EUROPE 

marriage in order first born. When the King has no male issue 
he will select for himself his heir from the royal line, with the ap- 
proval of the National Assembly. For this act it is therefore 
required a majority of one-half, plus one vote of the entire mem- 
bership of the National Assembly. 

Art. 57. The royal household is made up of the Queen Wife, 
the living ancestors and heirs to the King in direct line, with 
their wives, full brothers and their heirs, with their wives, and 
the sisters of the ruling King. Relatives and prerogatives of 
the members of the royal household will be defined by statute. 
No member of the royal household can become a minister or a 
member of the National Assembly. 

Art. 58. The King takes oath before the National Assembly, 
which is as follows: 

"I, [name], ascending the throne of the Kingdom of the 
Serbs, Croats, and Slovenes, and accepting the royal power, do 
hereby swear in the name of Almighty God that I will guard the 
union of the people, independence of the nation, and the entity 
of the national authority; that I will keep the constitution 
inviolable; that I will rule by the constitution and the law, and 
that I will endeavor to have the welfare of the people before me, 
so help me God. Amen." 

Art. 59. The King resides in the country permanently. 
Should it be necessary for the King to leave the country for a 
short time, the heir to the throne will represent him. If the 
heir to the throne is a minor or prevented from acting by any 
reason, the King will be represented by the Council of Ministers. 
Representation is conformed to according to the instructions 
given by the King within the bounds of the constitution. This 
applies also in case of the King's disability when it is not of a 
permanent nature. During the absence of the King or the heir 
to the throne the Ministers' Council has no right to adjourn the 
National Assembly. The King can be represented by the Min- 
isters' Council at the most for six months. Upon the expiration 
of that time the provision made by constitution relative to 
substitutes becomes effective. 

section vi 

Substitution 

Art. 60. The royal prerogatives are performed by substi- 
tutes : First, when the King is a minor, and second, when he is 



JUGOSLAVIA 359 

mentally or physically permanently incapable of performing 
royal acts. The creation and suspension of substitutes will be 
done by National Assembly by secret ballot. ^Mien the Council 
of Ministers finds that the King is disabled, they report to the 
National Assembly, together w ith an opinion from three physi- 
cians taken from the national medical faculties. The same pro- 
cedure is followed in the case of the heir to throne. 

Art. 61. The right to substitute for the King belongs to the 
heir of the throne if he is of age. If the heir to the throne, be- 
cause of the reasons set forth in Article 60, cannot perform 
the duties of substitute, the National Assembly elects by secret 
ballot three royal substitutes. The royal substitutes are elected 
for four years. After that in case the substitution has to be 
prolonged for at least one year, there must be a new election. 
If the substitution is to last longer the election is again for four 
years. The substitutes must be born Serbian, Croatian, or 
Slovenian, 45 years of age, and of higher education. Before 
they assume the royal authority the substitutes will take an 
oath before the National Assembly that has elected them, that 
they will be faithful to the King and that they will rule according 
to the constitution and the laws of the country. 

Art. 62. If one of the three substitutes is temporarily absent, 
the other two can perform the governmental functions without 
him. 

Art. 63. The substitutes will supervise the education of 
the minor King. The property of the minor King will be super- 
vised by guardians named in the King's will. If the deceased 
King has not named a guardian, they will be named by the sub- 
stitutes in cooperation with the Coimcil of State. 

Art. 64. Until the substitutes are elected, the Council of 
Ministers will temporarily execute royal authority under their 
own responsibility. 

Art. 65. In case of death or abdication of the King, the heir 
to the throne, if he is of age, immediately takes authority and 
announces the same to the people by proclamation. Within 
ten days he takes the prescribed oath before the National Assem- 
bly. If the National Assembly has adjourned earlier and the 
new Assembly is not elected, the old National Assembly is recon- 
vened. 

Art. 66. If at the time of the King's death there is no male 
issue, but the Queen is enceinte at the time of his death, the na- 
tional assembly will elect temporary substitutes who will exe- 



360 NEW CONSTITUTIONS OF EUROPE 

cute the King's authority only to the time of the birth. The 
government is obhged to put before the national assembly the 
opinion of three physicians taken from medical faculties of 
the nation as to the Queen's prospects of becoming a mother. 
This also applies in case of the death of the Crown Prince if 
his wife should be pregnant at the time of the King's death. 

Art. 67. In case the throne in accordance with this constitu- 
tion is left without an heir, the Council of Ministers will take 
charge of the royal powers and at once call the National Assem- 
bly in special session, which will decide the matter of succession. 

Art. 68. The civil list of the King will be appropriated by 
law. The civil list once established cannot be enlarged without 
the consent of the National Assembly, nor diminished without 
the consent of the King. The King's substitutes will receive 
from the state treasury for the time they perform their duties 
the amount allowed by the National Assembly at the time of 
their election. 

section vii 
National Assembly 

Art. 69. The National Assembly is composed of representa- 
tives freely chosen by the people by general, equal, direct, and 
secret ballot with representation of the minority. For every 
40,000 inhabitants one representative is chosen. If the excess 
of inhabitants in one elective district is more than 25,000, one 
additional representative will be chosen for that excess. The 
National Assembly is elected for four years. Other regulations 
for the election will be prescribed by law. 

Art. 70. The right to vote belongs to every citizen by birth 
or naturalization if he is 21 years of age. Officers, active or out 
of service, as well as non-commissioned officers and soldiers 
under the colors, cannot have the privilege of voting, nor can 
they be candidates for ofiice. The law will provide for woman 
suffrage. 

Art. 71. The franchise is denied temporarily to those (1) who 
are sentenced to prison, until their rights are restored; (2) 
who are sentenced to lose their citizenship for the duration of 
the sentence; (3) who are public charges; and (4) who are under 
guardianship. 

Art. 72. For representative to the National Assembly only 
a person who has right to vote, regardless of whether his name 



JUGOSLAVIA 361 

appears on the ballot, can be elected. Every candidate must 
comply with the following: (1) That he is a citizen by birth or 
naturalization of the Kingdom of the Serbs, Croats, and Slovenes; 
a naturalized citizen if he is not of the nationality of Serbs, 
Croats, and Slovenes, must be a resident at least ten years from 
the date of naturalization; (2) that he is 30 years of age; and 
(3) that he speaks and writes the national language. A na- 
tional assemblyman cannot at the same time be a government 
supply agent or government contractor. 

Art. 73. Police, customs, and forestry officials, as well as 
the officials of the agrarian reforms, cannot be candidates unless 
they have resigned one year prior to the call for the election. 
Other officials who perform public duty cannot be candidates 
in the election districts of their territorial jurisdiction. Officials 
who are elected to the National Assembly must resign their office 
for the time of their tenure as Assemblyman. Ministers, active 
and at large, and university professors may be candidates and, 
if elected, hold their positions. 

Art. 74. Every National Assemblyman represents all the 
people and not only those who have elected him. The voters 
cannot give, nor the National Assemblyman accept, commanding 
and obligatory instructions. All National Assemblymen take 
an oath that they will faithfully uphold the constitution. 

Art. 75. The National Assembly meets at the capitol Beograd 
(Belgrade) , in regular session annually on the 20th day of Octo- 
ber, unless it has been previously called by the King's decree 
in special session. If, in case of war, the capital is moved, the 
National Assembly meets in the place of the temporary capital. 
Regular call of the National Assembly cannot be made until the 
national budget is passed. In time of war the National Assembly 
is permanently in session unless the Assembly rules otherwise. 

Art. 76. The National Assembly verifies the credentials of 
its members and passes on them. The National Assembly pre- 
scribes its own rules of order. 

Art. 77. The National Assembly elects from its membership 
its officers for every session. 

Art. 78. Legislative measures are submitted by the Minis- 
ters' Council or individual ministers with the authority of the 
King. The right to present legislative measures is a privilege 
of each member of the National Assembly. 

Art. 79. The King concludes treaties with foreign nations. 
However, for confirmation of those treaties the concurrence 



362 NEW CONSTITUTIONS OF EUROPE 

of the National Assembly is necessary. For approval of purely 
political agreements, if they are not contrary to the constitution 
and the law, it is not necessary to have the confirmation of the 
National Assembly. A treaty to allow a foreign army to occupy 
the territory of the Kingdom or to pass over the country is not 
valid without first being confirmed by the National Assembly. 
The National Assembly can, when the national interests demand 
it, by resolution in advance authorize the Ministerial Council 
to take measures for immediate acceptance of the submitted 
treaty. National territory cannot be alienated or exchanged 
without the sanction of the National Assembly. 

Art. 80. The King proclaims the laws by a decree which 
contains also the laws adopted by National Assembly. The 
decree is signed by all ministers. The minister of justice at- 
taches to it the government seal and publishes the law in the 
"official organ." The law becomes effective fifteen days after 
publication in the "official organ" unless the law specifies other- 
wise. The day of publication in the "official organ " is counted. 

Art. 81. The National Assembly has the right of inquiry and 
also of investigation in elections and purely administrative 
questions. 

Art. 82. Every member of the National Assembly has the 
right to direct questions and interpellations to the ministers. 
The ministers are obliged to reply during the same session within 
the time prescribed by the rules of order. 

Art. 83. The National Assembly communicates directly with 
the ministers only. 

Art. 84. The National Assemblymen, members of the Govern- 
ment and Government representatives are the only ones having 
right to speak in the National Assembly. 

Art. 85. The National Assembly can legally function if one- 
third of all the Assembl;yTnen are present at the sessions. To 
carry a motion it is necessary to have a majority of the Assembly- 
men present. In case of equal division of votes the motion is 
considered lost. 

Art. 86. No legislative motion can be debated in the National 
Assembly until it first has gone through the proper committees. 
Voting in the National Assembly is public; only the elections are 
carried out by secret ballot. Votes can be cast only in person. 
On every legislative motion two votes must be taken in the same 
session of the National Assembly before it can be finally carried. 

Art. 87. At no time can anyone hold an Assemblyman re- 



JUGOSLAVIA 363 

sponsible for the vote he has given as a member of the National 
Assembly. For all statements and conduct of the National As- 
semblymen in performing their duty in sessions of the National 
Assembly, in committees, in special sessions, or in special duties 
delegated to them by the Assembly, the Assemblymen are re- 
sponsible only to the National Assembly according to the rules 
of order. 

Art. 88. Without the authority of the National Assembly its 
members cannot be held for any offense regardless of its nature, 
nor can they be deprived of their freedom by any authority or 
for any cause as long as their mandates have not expired, except 
when they are apprehended in the act of actual crime or trans- 
gression. However, even in the latter case, the National Assem- 
bly, if in session, is at once informed, and the National Assembly 
gives or rejects the authority to have the trial continued during 
the session. The right of immunity of the National Assembly- 
man begins on the day of his election. If anyone becomes 
Assemblyman before the sentence is pronounced on him for any 
offense the authorities that have the matter in charge will in- 
form the National Assembly, which will give or refuse permission 
to prolong the action. Members of the National Assembly can 
be held responsible only for the acts of which they are accused. 

Art. 89. The National Assembly has the exclusive right to 
preserve order at its meetings through its President. No armed 
force can be placed in the building of the National Assembly nor 
its grounds without the permission of the President of the Na- 
tional Assembly; without its permission no government agents 
can perform any of its functions in the National Assembly. No 
one carrying arms can enter the grounds of the National Assem- 
bly except persons who are authorized to carry weapons and 
are on duty at National Assembly. 

section viii 

Administrative Authority 

Art. 90. The Ministerial Council is composed of all the minis- 
ters and stands immediately under the King. The King names 
the President and members of the Ministerial Council. Min- 
isters are placed at the heads of respective branches of the 
government authority. A minister can be without portfolio. 
State under-secretaries can be appointed in the ministries should 
a need require them for a specified part of duties in that branch 



364 NEW CONSTITUTIONS OF EUROPE 

of government service. The state imder-secretaries, if they are 
taken from the National Assembly, do not lose their mandates. 
The ministers name subordinate government ofBcials according 
to the provisions of the law. The ministers take an oath before 
entering upon their duties of fidelity to the constitution and the 
King. 

Art. 91. The ministers are responsible to the King and the 
National Assembly. The King and the National Assembly can 
accuse ministers for violation of the constitution and the coun- 
try's laws while in official positions. For damages done by 
ministers, by unlawful acts, the state is responsible. 

Art. 92. A minister can be accused during the time of his 
service and for five years after leaving office. A motion to ac- 
cuse the minister must be made in writing and contain the 
charges. WTien the National Assembly accuses a minister a 
decision as to whether or not the minister shall be placed on 
trial must be brought by two-thirds of the votes of the mem- 
bers present. 

Art. 93. The ministers are tried before the State Court. The 
State Court is composed of six state counselors and six Supreme 
Court judges, who are chosen by their respective bodies by a 
ballot in a plenary meeting. The president of the Supreme 
Court is the president of the State Court. For deeds which are 
not provided for in the criminal code the punishment will be 
fixed by the law of ministerial responsibilities. More detailed 
directions regarding ministers' responsibilities are to be em- 
bodied in a separate law. 

Art. 94. Administrative authority can issue ordinances nec- 
essary for the application of the law. Administrative author- 
ity may, with an ordinance of legal force, regulate conditions 
only on the basis of la^N'ful authority, which is to govern sepa- 
rately in every instance. The ordinances must not be contrary 
to the constitution or the law in behalf of whose application they 
are given. They cannot be contrary to the legislative provi- 
sions on the grounds of which they have been prescribed. The 
National Assembly can by a resolution place the ordinances is- 
sued by the authority of the law out of force in whole or part. 
The ordinances must be published and in them must always 
be indicated the law on the ground of which they were given. 

Art. 95. The administration in the Kingdom is executed 
by provinces, districts, counties, and municipalities. Division 
of governments is done by law, in accordance with natural 



JUGOSLAVIA 365 

social and economical conditions. A province can have at 
the most 800,000 inhabitants. Two or more smaller provinces 
can unite in one larger one. The final decision rests with the 
provincial conventions of the said provinces, and such a province 
cannot have more than 800,000 inhabitants. At the Jiead of 
every province is a governor, who is appointed by the Eng and 
governs through the state's agencies the aflfairs of the state 
administration in the province. 

Art. 96. For the affairs of a local character in the municipal- 
ities, counties, districts, and provinces, a municipal, county, dis- 
trict, and provincial home rule is established and organized upon 
the principle of elections. For the home rule and self-adminis- 
tration of cities a special law will be enacted. In the line of 
provincial home rule authorities are these duties: 

(1) Provincial finances: (a) making of provincial budget; (b) 
disposition of provincial taxation which is payable according 
to law to cover the provincial expenditures. 

(2) Provincial public works; also building laws. 

(3) Attending to advancement of provincial economic inter- 
ests — farming, stock raising, wine growing, fruit growing, 
forestry, river and lake fishing, hunting — as well as technical 
and agricultural betterments. 

(4) Administration of provincial property. 

(5) Supervision of the national health in the province and 
making all provisions for the betterment of health conditions 
in the province. 

(6) Supervision of social tasks in the province. 

(7) The humanitarian institutions in the province. 

(8) Transportation institutions in the province. 

(9) Contributions to the advancement of culture in the 
province. 

(10) Contributions to special education in the province. 

(11) Instituting and maintaining organizations for savings, 
mutual benefits, and insurance. 

(12) Giving opinions at the request of the Government as to 
the advisability of proposed laws that have to do with the prov- 
ince and in general in all other objects for which the Govern- 
ment asks their opinion. Other matters also can be intrusted 
by law to the home rule authorities of the province. 

If in some of the enumerated conditions the province cannot 
perform by its own means, the Government will, upon the appli- 
cation of the provincial assembly and according to the decision 



366 NEW CONSTITUTIONS OF EUROPE 

of the National Assembly, give the necessary means, or will it- 
self carry out the undertakings. 

Art. 97. Home rule units have their own yearly budgets. 
The administration of the home rule units is under the super- 
vision of the minister of finances and the supreme controller, 
and will be regulated by special law. 

Art. 98. Agencies of the provincial administration are the 
provincial assembly and the provincial committee. The pro- 
vincial and county assemblies elect their own presidents, who 
preside at their meetings; they choose also the local provincial 
and county committees. According to law, with exceptions, 
combined authority can be provided for the same objects of 
state and home rule competence in the province. The governor 
is the supreme authority of the general state administration in 
the province, in so far as there do not exist, according to law, 
for special affairs of state, special administrative authorities for 
one or more provinces. The law provides which of the states' 
functions are decided by the governor, with the advice of 
the provincial committee. Detailed regulations regarding or- 
ganization and competent home rule bodies, of municipality, 
county, district, and province, will be enacted by special legis- 
lation. 

Art. 99. The provincial assembly has the right to establish 
provincial regulations in all questions within its jurisdiction. 
Provincial regulations are proclaimed by the governor. The 
provincial governor will not proclaim regulations which he finds 
are not based upon the constitution and the law. In that case 
he sends such regulations with his opinion to the State Council 
for decision and advises the competent minister. If the State 
Council finds that the order is not based on the constitution or 
some law, it will not be proclaimed or published. The State 
Council is bound to make its decision within two months. If 
the State Council does not make the decision in that time it 
becomes operative. 

Art. 100. The provincial committee prescribes regulations 
for performing the provincial functions. 

Art. 101. The state administrative authorities supervise 
the activities of the home rule authorities through the provincial 
governor and other special organs. The provincial governor 
has the power to suspend the enforcement of any decision of 
the home rule officers that is not based upon the constitution, 
the law, or the provincial regulations. A complaint can be filed 



JUGOSLAVIA 367 

against the decision of the governor with the State Council, 
within the time provided by law. If the State Council renders 
no decision within a month from the date of its submission then 
the decision of the provincial governor becomes operative. 

Art. 102. For disagreements of an administrative nature 
administration courts are established. The law will provide 
their locality, jurisdiction, and organization. 

Art. 103. The State Council is the Supreme Administrative 
Court. Members of the State Council are appointed by the King 
on the motion of the President of the Council of Ministers and 
in the following manner: One-half of the members are named 
by the King from twice the number of names submitted by the 
National Assembly; the National Assembly elects the other half 
from a like number and in a like manner submitted by the King. 
The filling of vacant places in the State Council will be done by 
especially formulated laws, which may obviate the above prin- 
ciples. For members of the State Council only the higher public 
officials or men in public life who have a higher education and 
have been for ten years in government service or public work 
can be appointed. At least two-thirds of the members of the 
State Council must have diplomas of qualification as having 
finished law studies. Members of the State Council can be re- 
moved from their places, moved to other branches of the govern- 
ment service and placed on pension only upon the judgment of 
the court. When they arrive at the age of 70 years or when 
through illness they cannot perform their duties, they will be 
placed on pension. 

The duties of the State Council are: (1) As the Supreme Ad- 
ministrative Court it decides conflicts of an administrative na- 
ture. Conflicts based on complaints against the decrees and 
ministerial decisions are decided by the State Council in the 
first and last instance. (2) As the administrative organ of the 
supreme state administration it decides acts of administrative 
nature for which it is necessary to have its consent by special 
laws. (3) It performs supervising duties over the home rule 
bodies by order of the law. (4) It decides conflicts of jurisdic- 
tion between the state and the administrative authorities, and 
also decides conflicts of jurisdiction between the state and the 
home rule authorities. (5) It also decides other questions that 
are placed by the law in its jurisdiction. Detailed regulations 
regarding the composition of jurisdictions and procedure in the 
State Council will be prescribed by special law. 



368 NEW CONSTITUTIONS OF EUROPE 

Art. 104. State jurisdictions are established by and accord- 
ing to rules prescribed by law. 

Art. 105. The law will prescribe the manner in which the 
officials will be appointed. 

Art. 106. Professions in government service, rights and 
duties, salaries and pensions of government officials in all 
branches, will be regulated by law for officials. 

Art. 107. Government employees are agents of the whole 
government and are obliged to work in the common interest 
of the state. The use of authority and position by the govern- 
ment employees for partisan aims, as well as the use of influence 
by the supervisors of government employees in that direction, 
will be punished by law. 

Art. 108. Any employee who is guaranteed a permanent posi- 
tion by the law cannot be discharged against his wish without 
being sentenced by a regular criminal or disciplinarian court. 

section ix 
The Courts' Authority 

Art. 109. The courts are independent. In dealing justice 
they do not stand under any authority, but administer justice 
by law. Courts and court jurisdictions can be established only 
by law. Under no circumstances can special courts be estab- 
lished as commissions for investigations. In family and in- 
heritance matters of the Mohammedans, justice is administered 
by the Sheriatha's Courts (religious). 

Art. 110. For the entire Kingdom only one Supreme Court 
exists, with sittings at Zagreb. The Supreme Court has also 
authority to decide conflicts of competency between adminis- 
trative, civil, or military authorities and judicial authorities. 
In the same manner it is competent to decide conflicts of juris- 
diction between administrative and regular courts. 

Art. 111. The appointment of Supreme and Appellate Court 
judges and the presidents of lower courts is done by the King's 
decree on the motion of the minister of justice, from the number 
of candidates which are chosen by the nominating body, whose 
composition will be closely defined by law. 

Art. 112. Judges of all courts are permanent. A judge 
cannot be deprived of his position nor for any reason be removed 
from his duty against his will, without a sentence by the regular 
courts or the Supreme Court. A judge cannot be accused in 



JUGOSLAVIA 369 

respect to his judicial duty without the permission of the com- 
petent Appellate Court. For members of the higher courts this 
permission is given by the Supreme Court. A judge cannot be 
placed even temporarily to perform any other paid or unpaid 
public service, without his consent and the approval of the Su- 
preme Court. A judge can be transferred only by his own con- 
sent. A judge can be in service to the end of his 65th year, and 
presidents of the Supreme and Appellate Courts to the end 
of their 70th year. Before that time a judge can be placed on 
pension only by written application or when he is physically 
disabled or mentally unable to perform his duties. Decision 
as to pensioning in this last instance is given by the Supreme 
Court. 

section x 

The Government Finances 

Art. 113. Every year the National Assembly approves the 
state budget, which is good for one year. The budget must 
be submitted to the National Assembly at the latest one month 
from the date it convenes. At the same time with the budget 
must be submitted to the National Assembly for examination 
and approval the final report for the last past fiscal year. The 
National Assembly cannot increase the submitted items, but it 
can lower or omit them. The budget is approved by sections. 
The form of making and executing of the budget is prescribed 
by law. Saving from one item of the budget or of the budget 
year cannot be used for payment of other items or for another 
year, without the consent of the National Assembly. 

Art. 114. Until it has approved the submitted budget the 
National Assembly can approve one-twelfth of the budget for 
one or more months. If the National Assembly is adjourned 
before the budget is decided, the budget of the expiring fiscal 
year is prolonged by decree, at the longest for four months. 

Art. 115. Government taxes and general government in- 
comes are regulated by law. State loans are decided by Na- 
tional Assembly. The Government is obliged to submit to the 
National Assembly a true certified report approved by the su- 
preme controller if the agreement for the loan is made and exe- 
cuted according to law. 

Art. 116. Tax obligations are general and all the government 
taxes are equal for the entire country. Taxes are paid according 
to taxable capacity and progressively. The King and the heir to 



370 NEW CONSTITUTIONS OF EUROPE 

the throne pay government tax on private property. No aid, 
permanent or temporary, nor gifts or compensation, can be given 
out of the government's treasury if they are not based on the law. 

Art. 117. The minister of finance directs the state property 
in so far as the law does not provide otherwise. Special laws 
will be enacted for the disposal of government property. The 
right of monopoly appertains to the state. Minerals and nat- 
ural water powers are property of the state. Special laws will 
be enacted for the giving of mining, industrial, or any other 
concessions. 

Art. 118. For auditing state accounts and supervising the 
execution of state and provincial budgets there exists a chief 
controller as the supreme accounting court. The president and 
members of the supreme control are chosen by the National 
Assembly from the nominating list, which is arranged by the 
State Council and on which there are nominated twice as many 
candidates as there are vacant places. The president and one- 
half of the members of the supreme control must be jurists. 
Other members must have been ministers of finance or they must 
have ten years of executive financial service. The president 
and members of the supreme control enjoy the same right of 
being irremovable as the members of State Council. Detailed 
regulations as to construction and competent procedure of the 
supreme control will be enacted by separate law. In what 
cases, against the decision of the supreme control, a complaint 
to the Supreme Court will have a place will be decided by law. 
The supreme control inspects, corrects, and liquidates accounts 
of general administration and of all those obliged to render ac- 
counts to the state treasury. It sees that no expenditures are 
made in excess of the budget and that no part of the budget 
is transferred from one section of the budget to the other. It 
closes the accounts of all state administrations and is obliged to 
collect all necessary evidence and information. Final state ac- 
counts are submitted to the National Assembly for approval 
with remarks of the supreme controller, and that, at the latest, 
within one year, counting from the end of each fiscal year. 

section xi 
The Army 

Art. 119. Military service is general as prescribed by law. 
The organization and strength of the army and navy are also 



JUGOSLAVIA 371 

prescribed by law. The formation of units is ordered by the 
King at the suggestion of the minister of war and the navy. 
The size of the standing army shall be determined each year at 
the time of making the budget. 

Art. 120. Military courts are independent. In the execu- 
tion of justice they are under no other authority, but their judg- 
ments shall be according to law. Judges of the military court 
of appeals are app>ointed for life. The tenure of office of judges 
of the first-instance military courts will be prescribed by law. 
Judges of the first-instance military courts cannot be im- 
peached for their judicial acts without the sanction of the mili- 
tary court of appeals, nor judges of the appellate court without 
the consent of the Supreme Court. Judges of the military court 
of appeals may be transferred only at their own request or if 
elevated to a higher office and judges of the first-instance mili- 
tary courts according to law. The findings of the military 
courts are to be reviewed by the Supreme Court as the court of 
last resort. 

Art. 121. Law violations committed by citizens and soldiers 
together will be tried before civil tribunals, except in time of 
war, when they will be tried by military courts. 

Art. 122. No one over 20 years of age shall be eligible to 
appointment under the government or remain in the same un- 
less he has complied with the rules of the military authorities 
as to military service performed or has been exempted from such 
service by the same authorities. 

Art. 123. The army can be employed for the preserving of 
law and order in local affairs only upon the request of local 
authorities. 

Art. 124. Aliens shall not be recruited as soldiers of the na- 
tion, nor can the army of the nation be placed in the service of 
any other nation without having previously obtained the sanc- 
tion of the National Assembly. 

section xii 
Amendments to the Constitution 

Art. 125. Amendments to the constitution shall be made by 
the National Assembly with the consent of the King. 

Art. 126. Motions to amend or alter the constitution shall be 
made by the King and the National Assembly. When such a mo- 
tion to amend or alter the constitution is made, all such amend- 



372 NEW CONSTITUTIONS OF EUROPE 

ments or changes must be presented in writing. If the motion 
to amend is made by the King it will be communicated to the 
National Assembly and the National Assembly will then adjourn 
and a new one will be called at the latest within four months. 
If such a motion is introduced by the National Assembly it shall 
be enacted in the manner contemplated for the solution of statu- 
tory laws by a three-fifths majority vote of the entire member- 
ship. WTien such a motion is passed the National Assembly 
will be dissolved and a new one shall be called within four 
months of the passage of such motion. In either event the Na- 
tional Assembly can only discuss the amendments or changes in 
the constitution as per original call. The vote of the National 
Assembly shall be based on a majority of one-half, plus one, of 
the total number of its membership. 

Art. 127. In the event of war or general mobilization, the 
National Assembly may for the whole of the national territory, 
or in the case of armed insurrection for the insurgent district, 
enact temporary emergency laws abrogating the following rights 
of citizens: The right of assembly, free speech, liberty of move- 
ment, immunity of domicile, correspondence, and telegraphic 
communication. In the same manner the freedom of the press 
may be abridged in case of armed insurrection in the district 
so affected. 

section xiii 
General Instructions 

Art. 128. At the first meeting of the National Assembly after 
the proclamation of the constitution the heir to the throne, 
Alexander, as the representative of King Peter I, as per Article 
58 of the constitution, will take the following oath: 

"In the name of his majesty King Peter I, I swear before the 
Almighty God that I will uphold the constitution without any 
mental reservations, that I will rule by it and by the laws, that 
I will safeguard the liberties of the people, the independence 
of the state and the entity of the national authorities, and that 
in all my actions and deeds I will have before me the welfare of 
the people. So help me God. Amen." 

Art. 129. After this each of the national representatives in 
meeting assembled and before the speaker of the house will take 
the following oath : 

"I [name] swear before the Almighty God and all that is 



JUGOSLAVIA 373 

under the law most sacred to me and in this world the most 
precious that I will in the discharge of my legislative duties have 
the welfare of the nation before me as the paramount issue and 
will fulfill my duties that the welfare of the king and people 
and the sovereignty of the nation may be executed to the best 
of my knowledge and belief." 

Art. 130. Temporary laws, rules, regulations, and findings 
of the Council of Ministers and all other acts and decisions of a 
definite duration which are of a statutory nature are in force 
from Dec. 1, 1918, until the day of the proclamation of this con- 
stitution; said laws will be in force until they are amended or 
repealed. Within thirty days from the promulgation of the 
constitution it will be the duty of the Government to give to the 
legislative body for examination all such provisional laws, rules, 
regulations, statutes, and decisions. The committee, divided 
into sections according to the branch of the national adminis- 
tration, after passing upon them, will pass in committee of the 
whole on which of said laws shall remain in force without change, 
which are to be amended, and which repealed. The unreported 
temporary laws, rules, regulations, and decisions of the Council 
of Ministers and all other acts and laws of a temporary legal 
nature are hereby repealed. The findings of the committee 
will be proclaimed as law. Those upon which the committee 
does not report will remain in full force until such time as they 
are changed in the regular legislative manner. All temporary 
laws, rules, statutes, and decisions which are of a legal nature 
of the Ministerial Council with reference to the agrarian problem 
of the nation, the national banks of the Serbs, Croats, and 
Slovenes, and the liquidation of the moratorium, liquidation of 
the legal status created by the war, and the reparation for dam- 
ages caused by the war, rules pertaining to the loan and the sim- 
plifying of the judiciary, can only be changed in a legislative 
manner. 

Art. 131. Until such time as the constitution goes into effect 
the administration of the Ministry, of the National Council, of 
the supreme control, of the rules of order in the National Council 
and of the ministerial responsibilities, the laws now existing in 
the Kingdom of Serbia are hereby extended to the rest of the 
country, with such amendments and additions as will be enacted 
in the manner as prescribed in Article 133. 

Art. 132. In accordance with Article 57 of this constitution, 
until the new statutes are in force the ones enacted by order of 



374 NEW CONSTITUTIONS OF EUROPE 

the King on Aug. 30, 1909, and published in the "Serbian Press" 
Feb. 26, 1911, will be in effect. 

Art. 133. For the equalization and administration of the 
laws in the land a shorter method is the following: All legal 
motions which have as their basis the coordination of laws and 
administration will be introduced either by the Government or 
by individual representatives to the legislative committee 
through its chairman. The report of the legislative committee 
relative to the motion which the committee has adopted is sent 
to the National Assembly for final action. Of these legal mo- 
tions the Assembly votes the bill in its entirety with a roll-call 
vote and first reading before the full house, whether they are 
passed or rejected. Before voting is in order, one representative 
from each parliamentary group may address the house upon 
the motion with a limited speech. Such a shorter method for 
the uniformity of legislation and administration in the nation 
may be for five years from the time that this constitution goes 
into effect, but such time may be extended legally. During 
the sitting of the Constituent Assembly as a legislative body 
the constitutional committee will fulfill the duties of the legisla- 
tive committee. 

Art. 134. After the constitution goes into effect the present 
provisional authorities will remain as such temporarily, each 
with a provisional governor named by the King on the recom- 
mendation of the minister of the interior. The provisional 
governor will administer the province through and with the 
chiefs of the department and under the immediate supervision 
of the minister of the interior and as the agent of competent 
ministers, and upon the basis of the existing laws and regulations. 
Laws enacted after this constitution goes into effect shall not 
give the provisional administration new duties. In the gradual 
transfer of the affairs of the administration of the provinces to 
the several ministries and authorities as per rules issued in Arti- 
cle 135, the Council of Ministers after due representation from 
the provisional governor will decide. As long as the provisional 
administration is in force the bureaus of the several ministries 
in the provinces are bound to confer and learn the views of the 
province's representatives as to their bills which are of a general 
character or that have any bearing on civil service employees 
before the ministerial decision. The parties have the right to 
be heard before the National Council relative to administrative 
contentions, which are decided by the temporary provisional 



JUGOSLAVIA 375 

administration as the first and last. For this duty the National 
Council will prepare whatever is necessary. Administrative con- 
tention may exist only between a private individual or a person 
of the legal calling on the one side and the administrative author- 
ities on the other; and it exists then where through an order or 
decision of the administrative authorities the rights of the pri- 
vate individual or of the individual of the legal calling are inter- 
fered with in contravention of law. However, the issue will not 
arise in cases where the law has provided that the provincial or 
district authorities shall proceed, consider, or decide the case. 
Art. 135. The government law relating to the division of 
the land into provinces and the regulation of provinces as per 
Articles 95 and 96, as well as the transfer of the present provin- 
cial sovereignty to the ministry and provincial administrations 
as per Article 134, shall be brought by the government before 
the National Assembly for passage. If the National Assembly 
does not pass these laws within three months they will be brought 
up according to Article 133 for the uniformity of the code and 
administration of the land, and if even after this shorter method 
these laws are not enacted within two months, then the Crown 
will issue an order whereby the land shall be divided within one 
month, together with the apportionments on the provincial ad- 
ministration as per Articles 95 and 96 of the constitution. This 
order may be changed only by legislative action. If the division 
of the land is not accomplished either according to the first or 
second part of this Article, but according to the third, then there 
shall be established in Croatia and Slovenia four administrative 
authorities. If a division of the land is to be carried out accord- 
ing to the resolutions of this Article then Montenegro, within 
the frontiers of 1913, with the Bokokotorski district, but without 
the districts of Plevlja and Belopolje, shall be considered as one 
department and will be administered by the provincial authori- 
ties as per this constitution. With the law of the division of 
authority Bosnia and Herzegovina will be divided in authority 
in their present borders. Until the passage of such a law the 
counties in Bosnia and Herzegovina will be considered as the 
de facto authority. The amalgamation of these authorities 
will be accomplished by the decision of the provincial assemblies 
of the said provinces and carried by a majority of two-thirds 
votes, according to the provision in the third section of Article 
95 of the constitution. Ekch municipality or district may 
secede from its present allegiance and join a difiFerent municipal 



376 NEAY CONSTITUTIONS OF EUROPE 

authority in the present borders of Bosnia and Herzegovina 
or outside of them if that is accepted by their self-governing 
representatives by a vote of three-fifths, and if such a decision 
is authorized by the National Assembly. The counties will re- 
main as units of the national administration until such time as 
they are abolished by law; their authority will be regulated by 
law. The seK-governing districts will terminate their admin- 
istration in the interest of the provincial and county districts 
as soon as the organization of the departments is completed. 

Art. 136. Until the new law affecting the employees (govern- 
ment ofiicials), as per Article 106 of the constitution, the laws 
now in effect shall be the law governing their duties and rights. 
The new law shall embody the temporary orders with the object 
of revision and coordination of the personnel of the administra- 
tive ofiicials and must be brought up for action not later than 
two years after the passage of the constitution, by which time 
the revision and coordination of the government officials must 
be completed. 

Art. 137. The president of tribunals (chief justices) and all 
other judges whose appointment under the constitution or the 
statutes is of a permanent nature shall not be removed, but they 
will retain their positions and fulfill their duties in the judiciary 
as heretofore. In the other parts of the nation, except what 
was originally Serbia proper, the tenure of office of individual 
judges may be terminated within one year from the enactment 
of this constitution. In that time the minister of justice will 
form the commissions of the higher tribunals of these districts 
and together they will decide which of the judges are to be con- 
sidered as not coming under the provision of the law excluding 
them from the permanent tenure of office. The necessary 
filling of the places thus made vacant by chief justices and other 
judges will be done according to the statutes now existing. 
Judges who were or will be appointed under the provision of the 
statutes for temporary appointment to official positions during 
the war, or under any other law or ordinance, are directed 
within one and one-half years from the enactment of this con- 
stitution to take the examination for judges. Those who fail 
to do so in the prescribed time will by such failure forfeit their 
positions. The Supreme Court of Beograd (Belgrade), the 
court of seven in Zagreb, the high court of Sarajevo, the high 
court of Podgoriza and the branch of the Supreme Court of 
Novi Sad will function as heretofore until the formation of the 



JUGOSLAVIA 377 

Supreme Court for the whole nation. In the interim they will 
be considered as branches of the Supreme Court. 

Art. 138. The publication and distribution of newspapers 
and printed matter may be prohibited which advocate hatred 
toward the government as a whole, religious or class hatred, 
and also when they appeal to the citizenry to resort to violence 
having for its object the overthrow of the constitution or the 
laws of the land by force, if from the contents it is plainly im- 
plied that the intent is to bring about such overthrow by citi- 
zenry. Section 13, Article 3, of the law as to the enforcement of 
the prohibition is valid in this instance. When the necessity 
for these measures ceases to exist these laws may be repealed 
in the legal way. 

Art. 139. Until such time as a law is enacted relative to 
privileges (grants or concessions) as to Article 117 of the consti- 
tution, all such privileges (grants or concessions) until the time 
of the enactment of the constitution shall be revised in the man- 
ner as pro\aded in Article 133 of the constitution. The privilege 
for the clearing of the national forests shall be revised in so far as 
the price (or tax) shall have retroactive value from Dec. 1, 1918. 

Art. 140. When this constitution becomes effective the Con- 
stituent Assembly, elected on the 28th day of November, 
1920, automatically (ipso facto) becomes the regular legislative 
assembly, with a definite time for its sittings as provided in 
the election laws for the Constituent Assembly. 

Art. 141. Until such time as a new code is enacted relative 
to the election of national representatives the law under which 
the election of November, 1920, was held shall be held valid, 
with the changes which shall be brought in harmony with the 
constitution. These changes will be brought in the manner as 
contemplated in Article 133 of this constitution and will become 
valid when they receive the King's sanction. The committee 
may make the necessary changes in terms which the law con- 
templates, and besides that it is empowered to prescribe the 
manner in which the division of the mandates shall be made on 
each hst of candidates according to the number of voters. 

section xiv 

Final Rules 

Art. 142. This constitution with the orders becomes a law 
when it is countersigned by the King, and it gets its binding 



378 NEW CONSTITUTIONS OF EUROPE 

strength when it is pubUshed in the "official organs." From 
that day all other laws or regulations which are contrary to it 
are hereby revoked. For the execution of this constitution the 
President and all the ministers of the Ministerial Council shall 
be responsible. We recommend to the ministers that this con- 
stitution be given publicity and to see that it is carried out. 
To the authorities, then, we command that they shall govern 
according to it and to all and everybody to obey it. 

(Signed) Alexander. 
June 28, 1921, in Beograd (Belgrade). 



CHAPTER XV 
RUSSIA 

1. HISTORICAL NOTE 

The most striking political changes due to the war have 
taken place in Russia. The most reactionary govern- 
ment in Europe has become the most radical. A com- 
munist state has been set up and political and industrial 
organization have been united in a manner that has never 
been tried before. For the last five years there has been 
a steady stream of volumes dealing with the Russian 
Revolution: soldiers, newspaper correspondents, college 
professors, Czarists, Bolsheviki, governesses, novelists, 
and sculptresses have contributed accounts of their prej- 
udices and observations. The result is obscurity as to the 
chain of events that marked the transformation from the 
old to the new regime, and as to the manner in which the 
new regime is working. Violent controversies over facts 
are available; but there are few if any trustworthy dis- 
cussions of one of the most interesting and important 
political experiments that the world has ever seen. 

There is no adequate history of the beginnings of the 
socialist democratic movement in Russia. Before the 
revolution of March, 1917, the censorship was so strict 
that most of the reliable literature on socialist agitation 
was subterranean. Prior to 1898 there was no serious at- 
tempt to form an all-Russian socialist organization. In 
that year, however, the various groups met at Minsk and 
joined in a single organization to be known as the Rus- 
sian Socialist Democratic Labor Party. The organization 
made great progress; its branches were rapidly increased; 

879 



Literature 
of the Rus- 
sian Revolu- 
tion of 1917 



Socialist 
Democratic 
Labor Party, 
1898 



S80 NEW CONSTITUTIONS OF EUROPE 

it was probably true that "every workingman's vote in 
Russia was cast for Socialism,"^ a situation that was not 
duplicated in any other country. 

The second congress of the party was held in Brussels 
and London in July and August, 1903, and radical differ- 
ences of opinion developed. 

Origin of One party, headed by Lenin, demanded a more thorough cen- 

term "Bol- tralization of power in the hands of the Executive Committee, a 
sheviki" rigorous suppression of all independent activities, and a severer 

code of rules for membership of the party. The other group, 
led by Martoff, defended the democratic principle of organiza- 
tion and desired a further development of independence on the 
part of the local organizations. Further differences of opinion 
existed regarding the policy to be adopted in the event of a 
successful revolution. The supporters of the Martoff group 
were prepared to concede to the Liberal bourgeoisie at any rate 
a temporary justification of their existence, but Lenin main- 
tained that the overthrow of Tsardom by the aid of the bour- 
geoisie and the establishment of a democratic republic would 
not only [not?] weaken the domination of the capitalists but 
would actually increase it. These differences of opinion led to 
a definite breach and as, at this particular Congress, the majority 
or " bolshinstvo " of the delegates voted with Lenin, they were 
known subsequently as the "bolsheviki" while the minority 
or " menshinstvo " were labelled "mensheviki." This is the 
real origin of the Bolsheviks and, although the word "Bolshe- 
vism," which has been created to describe the doctrine of the 
Bolsheviks has an entirely different signification," Bolshevik" 
in its original sense has no further meaning than that which has 
just been explained. ^ 



The revolu- 
tion of 
1905 



The two wings remained apart during the revolution 
of 1905 when public disorders were so serious that the 
Czar was compelled to convoke a national assembly.^ 
There was, however, no approach to parliamentary govern- 

^Bohkevik Aims and Ideals, p. 9 (New York, 1919; a reprint of articles from 
The Round Table, March and June, 1919). 

■Ibid.,pp. 10-11. 

^See E. A. Goldenweiser, "The Russian Duma," PoWical Science Quarterly, 
September, 1911; S. N. Harper, The Nerc Electoral Laiv for the Russiaii Duma 
(Chicago, 1908); Paul Vincgradoff, Self Government in Russia (London, 1915). 



RUSSIA 



381 



ment. Revolutionary agitation continued in spite of the 
censorship and poHce suppression ; and the different parties 
opposing the autocracy of the Czar's regime squandered 
some of their strength in factional struggles among them- 
selves. Then came the war; and the mystery is that the 
government lasted as long as it did. It was stupid and 
corrupt; demands for extensions of the franchise were re- 
fused; repressive measures engendered further popular 
discontent; high officials were in league with the enemy; 
the war and its professed purposes were not popular with 
the masses; and the court was dominated by the fanatic 
Rasputin. The result was the revolution of March, 1917.^ 
A provisional government which was liberal rather than 
socialist and aimed at middle-class rule lasted until Novem- 
ber, 1917, when the Bolsheviki came into power.^ 

Entirely apart from the economic philosophy of Bol- 
shevism the new regime in Russia is of great significance 
in the development of representative institutions; for, 
as has already been said, the constitution links political 
and municipal with industrial organization. The seizure 
of political power by the Bolsheviki in November, 1917, 
was simply a military coup d'etat. Trotsky announced 
that "Kerensky's government no longer existed and that, 
pending the decision of the All-Russian Congress of So- 
viets, the government authority would be assumed by the 
Military Revolutionary Committee." The Constituent 
Assembly, which had been elected in November, 1917, was 
dissolved in January, 1918, because, in spite of the fact 
that the leaders of the middle-class Liberals had been 
arrested and other measures of repression taken, an anti- 
Bolshevik candidate was elected to the presidency of the 

iQn the facts of the revolution, which are still obscure, see Dillon, The Eclipse 
of Russia (London, 1918); Kerensky, The Prelude to Bolshevism (New York, 
1919); Olgin, The Soul of the Rjissian Revolution (New York, 1917); and Levine, 
The Russian Revolution (New York, 1917). 

*See Vandervelde, Three Aspects of the Russian Revolution (New York, 1919); 
Goode, Bolshevism at Work (New York, 1920); Trotsky, Our Revolution (New 
York, 1918); Russell, Bolshevism in Theory and Practice (New York, 1920). 



The revolu- 
tion of 1917 



Bolshevist 
coup d'etat 
November, 
1917 



Constituent 

Assembly 

dissolved 



382 NEW CONSTITUTIONS OF EUROPE 



Origin of 
Soviet idea 



Constitution 
of 1918 



Assembly, and a series of anti-Bolshevik resolutions were 
carried. The Assembly was, therefore, abandoned, and 
the Bolsheviki relied for their support on the Soviets or 
Councils of Workmen's, Peasants', and Soldiers' Deputies. 
These bodies, containing no representatives of the middle 
classes, were lured by the revolutionary battle-cry, "All 
Power to the Soviets." 

The Soviet idea may be said to have originated in Eng- 
land. One of the followers of Robert Owen produced 
a plan for "a new set of boroughs when the unions are or- 
ganized: every trade shall be a borough and every trade 
shall have a council of representatives to conduct its af- 
fairs." But the Grand National Consolidated Trades 
Union which Owen headed collapsed. So also the Lux- 
embourg Commission (1848) elected by the various trades 
from the workshops to represent the Paris proletariat, was 
but a flash in the pan.^ The Soviet did not emerge until 
the Russian revolution of 1905, when the Soviets came 
into being more or less spontaneously. They were in es- 
sence strike committees employed to bring pressure to bear 
upon the government to grant parliamentary institutions. 
They vanished almost at once with the reaction, only to 
reappear, however, early in 1917. At first they were under 
a moderate Socialist influence; but Lenin was quick to see 
their possibilities, and by the time of the November 
revolution, the Bolsheviki had control of the Petrograd 
and Moscow Soviets. The meeting of the First Con- 
gress of Soviets in Petrograd on November 7 was made 
the occasion of the Bolshevist cowp. The Third All- 
Russian Congress of Soviets proclaimed the Russian So- 
cialist Federated Soviet Republic. The Fifth All-Russian 
Congress of Soviets adopted a constitution in July, 
1918. 

The Soviet Government is extremely complicated, as the 
constitution and the accompanying chart will indicate. 

iSee R. W. Postgate, The Bolshevik Theory, p. 132 ff. (London, 1920). 



Wordshops Workshops 

Town Soviet 



Vnbqc Meetings and Soviets 

< 1 /^ 

Vr///x//>/i \]q\q^i Soviet. 
(Rural Soviet) 




M Uyezd. 
i^^(County Congress} 



Gblast. 



Z^i^\om\ Congress) 






Governmental Organization of the Russian Socialist 
Federated Soviet Republic^ 



>From R. W. Postgate, The Bolshevik Theory, p. 146 (London, 1920). 



983 



384 NEW CONSTITUTIONS OF EUROPE 



Dictatorship 
of a minor- 
ity 



Occupa- 
tional repre- 
sentation 



The bourgeois elements of the population are completely 
disfranchised. Though kept in power by the acquiescence 
of the peasants, the Bolshevist government does not trust 
the peasants, and the Soviet hierarchy is so arranged 
that their vote counts for only one-fifth of its numerical 
strength.^ The controlling organs are not in touch with 
the people since they result from a series of indirect elec- 
tions "so complicated as to need a genealogical tree to 
make them intelligible."^ The Communists, nevertheless, 
remain in control: a party of 600,000 members, only a 
fraction of whom are active, maintains a dictatorship 
over more than 125,000,000 people.^ 

According to Lenin, the government thus instituted is 
an "immeasurably higher form of democracy" than the 
world has previously witnessed. Lenin himself, however, 
leaves in the background the feature of the soviet system 
which has attracted the sympathetic attention of foreign 
observers. According to these writers, "its essential 
characteristic consists in its occupational constituencies. 
These, they say, represent real groups with common pur- 
poses, in contrast to merely geographical constituencies, 
which they assert are meaningless conglomerations."^ 
Since occupational representation is being discussed in 
Western countries entirely apart from the radical changes 
that have been made in the basis of private property in 
Russia,^ the organization and working of the Soviet 
system are of great interest to the student of politics.^ 

iSee Articles 23, 25, and 53. 

*Ashley, op. cit. 

'See an interesting article by M. J. Olgin, "Mechanics of Power in Soviet 
Russia," The New Republic, June 15, 1921. 

*William Ashley, "Bolshevism and Democracy," Quarterly Review, January, 
1921. 

'See above. Chapter VI. 

'The text of the constitution which follows has been reprinted, by permission, 
from The Nation of January 4, 1919. This translation, says The Nation, was 
"made from an official printed text embodying the latest revisions, and required 
by law to be posted in all public places in Russia." 



RUSSIA 385 

2. THE RUSSIAN CONSTITUTION 
The Russian Socialist Federated Soviet Republic 

Resolution of the Fifth All-Russian Congress of Soviets, adopted 
on July 10, 1918 

The declaration of rights of the laboring and exploited peo- 
ple (approved by the Third All-Russian Congress of Soviets 
in January, 1918), together with the constitution of the Soviet 
Republic, approved by the Fifth Congress, constitutes a single 
fundamental law of the Russian Socialist Federated Soviet 
Republic. 

This fundamental law becomes effective upon the publica- 
tion of the same in its entirety in the " Izvestia of the All-Russian 
General Executive Committee." It must be published by all 
organs of the Soviet Government and must be posted in a prom- 
inent place in every Soviet institution. 

The Fifth Congress instructs the People's Commissariat of 
Education to introduce in all schools and educational institu- 
tions of the Russian Republic the study and explanation of the 
basic principles of this constitution. 

section i 

Declaration of Rights of the Laboring and 
Exploited People 

Chapter One 

Article 1. Russia is declared to be a Republic of the Soviets 
of Workers', Soldiers', and Peasants' Deputies. All the central 
and local power belongs to these Soviets. 

Art. 2. The Russian Soviet Republic is organized on the 
basis of a free union of free nations, as a federation of Soviet 
national Republics. 

Chapter Two 

Art. 3. Bearing in mind as its fundamental problem the 
abolition of exploitation of men by men, the entire abolition of 
the division of the people into classes, the suppression of exploit- 
ers, the establishment of a Socialist society, and the victory of 
socialism in all lands, the Third All-Russian Congress of Soviets 
of Workers', Soldiers', and Peasants' Deputies further resolves: 



386 NEW CONSTITUTIONS OF EUROPE 

(1) For the purpose of realizing the sociaUzation of land, all 
private property in land is abolished, and the entire land is 
declared to be national property and is to be apportioned among 
husbandmen without any compensation to the former owners, 
in the measure of each one's ability to till it. 

(2) All forests, treasures of the earth, and waters of general 
public utility, all implements whether animate or inanimate, 
model farms and agricultural enterprises, are declared to be 
national property. 

(3) As a first step toward complete transfer of ownership to 
the Soviet Republic of all factories, mills, mines, railways, and 
other means of production and transportation, the Soviet law 
for the control by workmen and the establishment of the Su- 
preme Soviet of National Economy is hereby confirmed, so as 
to assure the power of the workers over the exploiters. 

(4) With reference to international banking and finance, the 
Third Congress of Soviets is discussing the Soviet decree regard- 
ing the annulment of loans made by the Government of the 
Czar, by landowners and the bourgeoisie, and it trusts that the 
Soviet Government will firmly follow this course until the final 
victory of the international workers' revolt against the oppres- 
sion of capital. 

(5) The transfer of all banks into the ownership of the Work- 
ers' and Peasants' Government, as one of the conditions of the 
liberation of the toiling masses from the yoke of capital, is con- 
firmed. 

(6) Universal obligation to work is introduced for the pur- 
pose of eliminating the parasitic strata of society and organiz- 
ing the economic life of the country. 

(7) For the purpose of securing the working class in the pos- 
session of the complete power, and in order to eliminate all 
possibility of restoring the power of the exploiters, it is decreed 
that all toilers be armed, and that a Socialist Red Army be 
organized and the propertied class be disarmed. 

Chapter Three 

Art. 4. Expressing its absolute resolve to liberate mankind 
from the grip of capital and imperialism, which flooded the 
earth with blood in this present most criminal of all wars, the 
Third Congress of Soviets fully agrees with the Soviet Govern- 
ment in its policy of breaking secret treaties, of organizing on a 



RUSSIA 387 

wide scale the fraternization of the workers and peasants of the 
beUigerent armies, and of making all efforts to conclude a gen- 
eral democratic peace without annexations or indemnities, upon 
the basis of the free determination of the peoples. 

Art. 5, It is also to this end that the Third Congress of 
Soviets insists upon putting an end to the barbarous policy of 
the bourgeois civilization which enables the exploiters of a few 
chosen nations to enslave hundreds of millions of the toiling 
population of Asia, of the colonies, and of small countries gen- 
erally. 

Art. 6. The Third Congress of Soviets hails the policy of the 
Council of People's Commissars in proclaiming the full inde- 
pendence of Finland, in withdrawing troops from Persia, and 
in proclaiming the right of Armenia to self-determination. 

Chapter Four 

Art. 7. The Third All-Russian Congress of Soviets of 
Workers', Soldiers', and Peasants' Deputies believes that now, 
during the progress of the decisive battle between the prole- 
tariat and its exploiters, the exploiters cannot hold a position in 
any branch of the Soviet Government. The power must belong 
entirely to the toiling masses and to their plenipotentiary rep- 
resentatives — the Soviets of Workers', Soldiers', and Peasants' 
Deputies. 

Art. 8. In its effort to create a league — ^free and voluntary, 
and for that reason all the more complete and secure — of the 
working classes of all the peoples of Russia, the Third Con- 
gress of Soviets merely establishes the fundamental principles 
of the federation of Russian Soviet Republics, leaving to the 
workers and peasants of every people to decide the following 
question at their plenary sessions of their Soviets: whether or 
not they desire to participate, and on what basis, in the federal 
government and other federal Soviet institutions. 

SECTION n 

General Provisions of the Constitution of the Russian 
Socialist Federated Soviet Republic 

Chapter Five 

Art. 9. The fundamental problem of the constitution of the 
Russian Socialist Federated Soviet Republic involves, in view of 



388 NEW CONSTITUTIONS OF EUROPE 

the present transition period, the estabHshment of a dictator- 
ship of the urban and rural proletariat and the poorest peasantry 
in the form of a powerful AU-Russian Soviet authority, for the 
purpose of abolishing the exploitation of men by men and of 
introducing Socialism, in which there will be neither a division 
into classes nor a state of autocracy. 

Art. 10. The Russian Republic is a free Socialist society of 
all the working people of Russia. The entire power, within the 
boundaries of the Russian Socialist Federated Soviet Repub- 
lic, belongs to all the working people of Russia, united in urban 
and rural Soviets. 

Art. 11. The Soviets of those regions which differen- 
tiate themselves by a special form of existence and national 
character may unite in autonomous regional unions, ruled 
by the local Congress of the Soviets and their executive or- 
gans. 

These autonomous regional unions participate in the Rus- 
sian Socialist Federated Soviet Republic upon the basis of a 
federation. 

Art. 12. The supreme power of the Russian Socialist Fed- 
erated Soviet Republic belongs to the All-Russian Congress of 
Soviets, and, in periods between the convocation of the Con- 
gress, to the AU-Russian Central Executive Committee. 

Art. 13. For the purpose of securing to the toilers real free- 
dom of conscience, the church is to be separated from the state 
and the school from the church, and the right of religious and 
anti-religious propaganda is accorded to every citizen. 

Art. 14. For the purpose of securing the freedom of expres- 
sion to the toiling masses, the Russian Socialist Federated So- 
viet Republic abolishes all dependence of the press upon capital, 
and turns over to the working people and the poorest peasantry 
all technical and material means of publication of newspapers, 
pamphlets, books, etc., and guarantees their free circulation 
throughout the country. 

Art. 15. For the purpose of enabling the workers to hold 
free meetings, the Russian Socialist Federated Soviet Repub- 
lic offers to the working class and to the poorest peasantry 
furnished halls, and takes care of their heating and lighting 
appliances. 

Art. 16. The Russian Socialist Federated Soviet Republic, 
having crushed the economic and political power of the proper- 



RUSSIA 389 

tied classes and having thus aboHshed all obstacles which inter- 
fered with the freedom of organization and action of the workers 
and peasants, offers assistance, material and other, to the work- 
ers and the poorest peasantry in their effort to unite and or- 
ganize. 

Art. 17. For the purpose of guaranteeing to the workers real 
access to knowledge, the Russian Socialist Federated Soviet Re- 
public sets itself the task of furnishing full and general free edu- 
cation to the workers and the poorest peasantry. 

Art. 18. The Russian Socialist Federated Soviet Republic 
considers work the duty of every citizen of the Republic, 
and proclaims as its motto: "He shall not eat who does not 
work." 

Art. 19. For the purpose of defending the victory of the 
great peasants' and workers' revolution, the Russian Socialist 
Federated Soviet Republic recognizes the duty of all citizens of 
the Republic to come to the defense of their Socialist Father- 
land, and it, therefore, introduces universal military training. 
The honor of defending the revolution with arms is given only 
to the toilers, and the non-toiling elements are charged with the 
performance of other military duties. 

Art. 20. In consequence of the solidarity of the toilers of 
all nations, the Russian Socialist Federated Soviet Republic 
grants all political rights of Russian citizens to foreigners who 
live in the territory of the Russian Republic and are engaged 
in toil and who belong to the toiling class. The Russian So- 
cialist Federated Soviet Republic also recognizes the right of 
local Soviets to grant citizenship to such foreigners without 
complicated formality. 

Art. 21. The Russian Socialist Federated Soviet Republic 
offers shelter to all foreigners who seek refuge from political 
or reUgious persecution. 

Art. 22. The Russian Socialist Federated Soviet Republic, 
recognizing equal rights of all citizens, irrespective of their racial 
or national connections, proclaims all privileges on this ground, 
as well as of national minorities, to be in contradiction with 
the fundamental laws of the Republic. 

Art. 23. Being guided by the interests of the working class 
as a whole, the Russian Socialist Federated Soviet Republic 
deprives all individuals and groups of individuals of rights which 
could be utilized by them to the detriment of the Socialist 
Revolution. 



390 NEW CONSTITUTIONS OF EUROPE 

section iii 
Construction of the Soviet Power 

A. Organization of the Central Power 

Chapter Six 

The All-Russian Congress of Soviets of Workers\ Peasants', 
Cossacks', and Red Army Deputies 

Art. 24. The All-Russian Congress of Soviets is the siapreme 
power of the Russian Socialist Federated Soviet Republic. 

Art. 25. The All-Russian Congress of Soviets is composed 
of representatives of urban Soviets (one delegate for 25,000 
voters), and of representatives of the provincial (Gubernia) 
congresses of Soviets (one delegate for 125,000 inhabitants). 

Note 1. In case the Provincial Congress is not called before the All-Russian 
Congress is convoked, delegates for the latter are sent directly from the county 
{Quezd or Vyezd) Congress. 

Note 2. In case the Regional (Oblast) Congress is convoked indirectly, 
previous to the convocation of the All-Russian Congress, delegates for the 
latter may be sent by the Regional Congress. 

Art. 26. The All-Russian Congress is convoked by the All- 
Russian Central Executive Committee at least twice a year. 

Art. 27. A special All-Russian Congress is convoked by the 
All-Russian Central Executive Committee upon its own initia- 
tive, or upon the request of local Soviets having not less than 
one-third of the entire population of the Republic. 

Art. 28. The All-Russian Congress elects an All-Russian 
Central Executive Committee of not more than 200 members. ; 

Art. 29. The All-Russian Central Executive Committee is 
entirely responsible to the All-Russian Congress of Soviets. <\ 

Art. 30. In the periods between the convocation of the Con- 
gresses, the All-Russian Central Executive Committee is the 
supreme power of the Republic. 

Chapter Seven 

The All-Russian Central Executive Committee 

Art. 31. The All-Russian Central Executive Committee is 
the supreme legislative, executive, and controlling organ of 
the Russian Socialist Federated Soviet Republic. 



RUSSIA S91 

Art. 32. The All-Russian Central Executive Committee di- 
rects in a general way the activity of the Workers' and Peasants' 
government and of all organs of the Soviet authority in the 
country, and it coordinates and regulates the operation of the 
Soviet constitution and of the resolutions of the All-Russian 
Congresses and of the central organs of the Soviet power. 

Art. 33. The All-Russian Central Executive Committee con- 
siders and enacts all measures and proposals introduced by the 
Soviet of People's Commissars or by the various departments, 
and it also issues its own decrees and regulations. 

Art. 34. The All-Russian Central Executive Committee con- 
vokes the All-Russian Congress of Soviets, at which time the 
Executive Committee reports on its activity and on general 
questions. 

Art. 35. The All-Russian Central Executive Committee 
forms a Council of People's Commissars for the purpose of gen- 
eral management of the affairs of the Russian Socialist Federated 
Soviet Republic, and it also forms departments (People's Com- 
missariats) for the purpose of conducting various branches. 

Art. 36. The members of the All-Russian Central Executive 
Committee work in the various departments (People's Com- 
missariats) or execute special orders of the All-Russian Central 
Executive Committee. 

Chapter Eight 
The Council of People's Commissars 

Art. 37. The Council of People's Commissars is entrusted 
with the general management of the affairs of the Russian 
Socialist Federated Soviet Republic. 

A.rt. 38. For the accomplishment of this task the Council of 
People's Commissars issues decrees, resolutions, orders, and, 
in general, takes all steps necessary for the proper and rapid 
conduct of government affairs. 

Art. 39. The Council of People's Commissars notifies im- 
mediately the All-Russian Central Executive Committee of all 
its orders and resolutions. 

Art. 40. The All-Russian Central Executive Committee has 
the right to revoke or suspend all orders and resolutions of 
the Council of People's Commissars. 

Art. 41. All orders and resolutions of the Council of People's 
Commissars of great political significance are turned over for 



392 NEW CONSTITUTIONS OF EUROPE 

consideration and final approval to the All-Russian Central 
Executive Committee. 

Note. Measures requiring immediate execution may be enacted directly 
by the Council of People's Commissars. 

Art. 42. The members of the Council of People's Com- 
missars stand at the head of the various People's Commissariats. 

Art. 43. There are seventeen People's Commissars: 

(1) Foreign Affairs. 

(2) Army. 

(3) Navy. 

(4) Interior. 

(5) Justice. 

(6) Labor. 

(7) Social Welfare. 

(8) Education. 

(9) Post and Telegraph. 

(10) National Affairs. 

(11) Finances. 

(12) Ways of Communication. 

(13) Agriculture. 

(14) Commerce and Industry. 

(15) National Supplies. 

(16) State Control. 

(17) Supreme Soviet of National Economy. 

(18) Public Health. 

Art. 44. Every Commissar has a College (Committee) of 
which he is the President, and the members of which are ap- 
pointed by the Council of People's Commissars. 

Art. 45. A People's Commissar has the individual right to 
decide on all questions under the jurisdiction of his Commissariat, 
and he is to report on his decision to the College. If the Col- 
lege does not agree with the Commissar on some decisions, the 
former may, without stopping the execution of the decision, 
complain of it to the executive members of the Council of 
People's Commissars or to the All-Russian Central Executive 
Committee. 

Individual members of the College have this right also. 

Art. 46. The Council of People's Commissars is entirely 
responsible to the All-Russian Congress of Soviets and the 
All-Russian Central Executive Committee. 

Art. 47. The People's Commissars and the Colleges of the 



RUSSIA 393 

People's Commissariats are entirely responsible to the Council 
of People's Commissars and the All-Russian Central Executive 
Committee. 

Art. 48. The title of People's Commissar belongs only to the 
members of the Council of People's Commissars, which is in 
charge of general affairs of the Russian Socialist Federated 
Soviet Republic, and it cannot be used by any other represen- 
tative of the Soviet power, either central or local. 

Chapter Nine 

Affairs in the jurisdiction oj the All-Russian Congress and the 
All-Russian Central Executive Committee 

Art. 49. The All-Russian Congress and the All-Russian 
Central Executive Committee deal with questions of state, 
such as: 

(1) Ratification and amendment of the constitution of the 
Russian Socialist Federated Soviet Republic. 

(2) General direction of the entire interior and foreign policy 
of the Russian Socialist Federated Soviet Republic. 

(3) Establishing and changing boundaries, also ceding terri- 
tory belonging to the Russian Socialist Federated Soviet Re- 
public. 

(4) Establishing boundaries for regional Soviet unions be- 
longing to the Russian Socialist Federated Soviet Republic, 
also settling disputes among them. 

(5) Admission of new members to the Russian Socialist Fed- 
erated Soviet Republic, and recognition of the secession of any 
parts of it. 

(6) The general administrative division of the territory of 
the Russian Socialist Federated Soviet Republic and the ap- 
proval of regional unions. 

(7) Establishing and changing of weights, measures, and 
money denominations in the Russian Socialist Federated Soviet 
Republic. 

(8) Foreign relations, declaration of war, and ratification of 
peace treaties. 

(9) Making loans, signing commercial treaties, and financial 
agreements. 

(10) Working out a basis and a general plan for the national 
economy and for its various branches in the Russian Socialist 
Federated Soviet Republic. 



394 NEW CONSTITUTIONS OF EUROPE 

(11) Approval of the budget of the Russian Socialist Feder- 
ated Soviet Republic. 

(12) Levying taxes and estabUshing the duties of citizens to 
the state. 

(13) Establishing the bases for the organization of armed 
forces. 

(14) State legislation, judicial organization and procedure, 
civil and criminal legislation, etc. 

(15) Appointment and dismissal of the individual People's 
Commissars or the entire Council; also approval of the Presi- 
dent of the Council of People's Commissars. 

(16) Granting and cancelling Russian citizenship and fixing 
rights of foreigners. 

(17) The right to declare individual and general amnesty. 
Art. 50. Besides the above-mentioned questions, the 

All-Russian Congress and the All-Russian Central Executive 
Committee have charge of all other affairs which, according to 
their decision, require their attention. 

Art. 51. The following questions are solely imder the juris- 
diction of the All-Russian Congress : 

(1) Ratification and amendment of the fundamental prin- 
ciples of the Soviet constitution. 

(2) Ratification of peace treaties. 

Art. 52. The decision of questions indicated in Paragraphs 3 
and 8 of Article 49 may be made by the All-Russian Central 
Executive Committee only in case it is impossible to convoke 
the Congress. 

B. Organization of Local Soviets 

Chapter Ten 

The Congresses of the Soviets 

Art. 53. Congresses of Soviets are composed as follows: 

(1) Regional: of representatives of the urban and county 
Soviets, one representative for 25,000 inhabitants of the county, 
and one representative for 5,000 voters of the cities — but not 
more than 500 representatives for the entire region — or of rep- 
resentatives of the provincial Congresses, chosen on the same 
basis, if such a Congress meets before the regional Congress. 

(2) Provincial {Guhernia) : of representatives of urban and 
rural (Volost) Soviets, one representative for 10,000 inhabit- 



RUSSIA 395 

ants from the rural districts, and one representative for 2,000 
voters in the city; altogether not more than 300 representatives 
for the entire province. In case the county Congress meets 
before the provincial, election takes place on the same basis, 
but by the county Congress instead of the rural. 

(3) County: of representatives of rural Soviets, one delegate 
for each 1,000 inhabitants, but not more than 300 delegates for 
the entire county. 

(4) Rural (Volost): of representatives of all village Soviets 
in the Volost, one delegate for ten members of the Soviet. 

Note 1. Representatives of urban Soviets which have a population of not 
more than 10,000 persons participate in the county Congress; village Soviets 
of districts of less than 1,000 inhabitants unite for the purpose of electing dele- 
gates to the county Congress. 

Note 2. Rural Soviets of less than ten members send one delegate to the 
rural {Volost) Congress. 

Art. 54. Congresses of the Soviets are convoked by the re- 
spective Executive Committees upon their own initiative, or 
upon request of local Soviets comprising not less than one-third 
of the entire population of the given district. In any case they 
are convoked at least twice a year for regions, every three 
months for provinces and counties, and once a month for rural 
districts. 

Art. 55. Every Congress of Soviets (regional, provincial, 
county, and rural) elects its Executive organ — an Executive 
Committee the membership of which shall not exceed: 

(1) for regions and provinces, 25; (2) for a coimty, 20; (3) for 
a rural district, 10. The Executive Committee is responsible 
to the Congress which elected it. 

Art. 56. In the boundaries of the respective territories the 
Congress is the supreme power; during intervals between 
the convocations of the Congress, the Executive Committee is 
the supreme power. 

Chapter Eleven 
The Soviet of Deputies 

Art. 57. Soviets of Deputies are formed : 

(1) In cities, one deputy for each 1,000 inhabitants; the total 
to be not less than 50 and not more than 1,000 members. 

(2) All other settlements (towns, villages, hamlets, etc.) of 
less than 10,000 inhabitants, one deputy for each 100 inliabi- 



396 NEW CONSTITUTIONS OF EUROPE 

tants; the total to be not less than 3 and not more than 50 dep- 
uties for each settlement. 

Terra of the deputy, three months 

Note. In small rural sections, whenever possible, all questions shall be de- 
cided at general meetings of voters. 

Art. 58. The Soviet of Deputies elects an Executive Com- 
mittee to deal with current affairs; not more than 5 members 
for rural districts, one for every 50 members of the Soviets of 
cities, but not more than 15 and not less than 3 in the aggregate 
(Petrograd and Moscow not more than 40). The Executive 
Committee is entirely responsible to the Soviet which elected it. 

Art. 59. The Soviet of Deputies is convoked by the Execu- 
tive Committee upon its own initiative, or upon the request of 
not less than one-half of the membership of the Soviet; in any 
case at least once a week in cities, and twice a week in rural 
sections. 

Art. 60. Within its jurisdiction the Soviet, and in cases 
mentioned in Article 57, Note, the meeting of the voters, is 
the supreme power in the given district. 



Chapter Twelve 

Jurisdiction of the local organs of the Soviets 

Art. 61. Regional, provincial, county, and rural organs of 
the Soviet power and also the Soviets of Deputies have to per- 
form the following duties: 

(1) Carry out all orders of the respective higher organs of 
the Soviet power. 

(2) Take all steps toward raising the cultural and economic 
standard of the given territory. 

(3) Decide all questions of local importance within their re- 
spective territory. 

(4) Coordinate all Soviet activity in their respective territory. 
Art. 62. The Congresses of Soviets and their Executive 

Committees have the right to control the activity of the local 
Soviets {i. e., the regional Congress controls all Soviets of the 
respective regions; the provincial, of the respective province, 
with the exception of the urban Soviets, etc.) ; and the regional 
and provincial Congresses and their Executive Committees in 
addition have the right to overrule the decisions of the Soviets 



RUSSIA 397 

of their districts, giving notice in important cases to the central 
Soviet authority. 

Art. 63. For the purpose of performing their duties, the local 
Soviets, rural and urban, and the Executive Committees form 
sections respectively. 

SECTION rv 

The Right to Vote 

Chapter Thirteen 

Art. 64. The right to vote and to be elected to the Soviets 
is enjoyed by the following citizens, irrespective of religion, na- 
tionality, domicile, etc., of the Russian Socialist Federated 
Soviet Republic, of both sexes, who shall have completed their 
eighteenth year by the day of election : 

(1) All who have acquired the means of living through labor 
that is productive and useful to society, and also persons en- 
gaged in housekeeping, which enables the former to do produc- 
tive work, r. e., laborers and employees of all classes who are 
employed in industry, trade, agriculture, etc. ; and peasants and 
Cossack agricultural laborers who employ no help for the pur- 
pose of making profits. 

(2) Soldiers of the army and navy of the Soviets. 

(3) Citizens of the two preceding categories who have to any 
degree lost their capacity to work. 

Note 1. Local So\'iets may, upon approval of the central power, lower the 
age standard mentioned herein. 

Note 2. Non-citizens mentioned in Article 20 (Section II, Chapter 5) have 
the right to vote. 

Art. 65. The following persons enjoy neither the right to 
vote nor the right to be voted for, even though they belong to 
one of the categories enumerated above, namely: 

(1) Persons who employ hired labor in order to obtain from 
it an increase in profits. 

(2) Persons who have an income without doing any work, 
such as interest from capital, receipts from property, etc. 

(3) Private merchants, trade and commercial brokers. 

(4) Monks and clergy of all denominations. 

(5) Employees and agents of the former police, the gendarme 
corps, and the Okhrana [Czar's secret service], also members 
of the former reigning dynasty. 



398 NEW CONSTITUTIONS OF EUROPE 

(6) Persons who have in legal form been declared demented 
or mentally deficient, and also persons under guardianship. 

(7) Persons who have been deprived by a Soviet of their 
rights of citizenship because of selfish or dishonorable offenses,' 
for the period fixed by the sentence. 



Chapter Fourteen 
Elections 

Art. 66. Elections are conducted according to custom on 
days fixed by the local Soviets. 

Art. 67. Election takes place in the presence of an electoral 
committee and the representative of the local Soviet. 

Art. 68. In case the representative of the Soviet cannot be 
present for valid causes, the chairman of the electoral committee 
takes his place, and in case the latter is absent, the chairman of 
the election meeting replaces him. 

Art. 69. Minutes of the proceedings and results of elections 
are to be compiled and signed by the members of the electoral 
committee and the representative of the Soviet. 

Art. 70. Detailed instructions regarding the election pro- 
ceedings and the participation in them of professional and other 
workers' organizations are to be issued by the local Soviets, 
according to the instructions of the All-Russian Central Exec- 
utive Committee. 

Chapter Fifteen 
The checking and cancellation of elections and recall of the deputies 

Art. 71. The respective Soviets receive all the records of 
the proceedings of the election. 

Art. 72. The Soviet appoints a commission to verify the elec- 
tions. 

Art. 73. This commission reports on the results to the 
Soviets. 

Art. 74. The Soviet decides the question when there is doubt 
as to which candidate is elected. 

Art. 75. The Soviet announces a new election if the elec- 
tion of one candidate or another cannot be determined. 

Art. 76. If an election was irregularly carried on in its en- 
tirety, it may be declared void by a higher Soviet authority. 



RUSSIA 399 

Art. 77. The highest authority in relation to questions of 
elections is the All-Russian Central Executive Committee. 

Art. 78. Voters who have sent a deputy to the Soviet have 
the right to recall him, and to have a new election, according 
to general provisions. 

section v 

The Budget 
Chapter Sixteen 

Art. 79. The financial policy of the Russian Socialist Fed- 
erated Soviet Republic in the present transition period of dicta- 
torship of the proletariat, facilitates the fundamental purpose 
of expropriation of the bourgeoisie and the preparation of con- 
ditions necessary for the equality of all citizens of Russia in the 
production and distribution of wealth. To this end it sets forth 
as its task the supplying of the organs of the Soviet power 
with all necessary funds for local and state needs of the Soviet 
Republic, without regard to private property rights. 

Art. 80. The state expenditure and income of the Russian 
Socialist Federated Soviet Republic are combined in the state 
budget. 

Art. 81. The All-Russian Congress of Soviets or the All- 
Russian Central Executive Committee determine what matters 
of income and taxation shall go to the state budget and what 
shall go to the local Soviets ; they also set the limits of taxes. 

Art. 82. The Soviets levy taxes only for the local needs. 
The state needs are covered by the funds of the state treasury. 

Art. 83. No expenditure out of the state treasury not set 
forth in the budget of income and expense shall be made with- 
out a special order of the central power. 

Art. 84. The local Soviets shall receive credits from the 
proper People's Commissars out of the state treasury, for the 
purpose of making expenditures for general state needs. 

Art. 85. All credits allotted to the Soviets from the state 
treasury, and also credits approved for local needs, must be 
expended according to the estimates, and cannot be used for 
any other purposes without a special order of the All-Russian 
Central Executive Committee and the Soviet of People's Com- 
missars. 

Art. 86. Local Soviets draw up semi-annual and annual esti- 



400 NEW CONSTITUTIONS OF EUROPE 

mates of income and expenditure for local needs. The esti- 
mates of urban and rural Soviets participating in county con- 
gresses, and also the estimates of the county organs of the So- 
\-iet power, are to be approved by provincial and regional 
congresses or by their executive committees; the estimates of 
the urban, pro\ancial, and regional organs of the Soviets are to 
be approved by the All-Russian Central Executive Committee 
and the Council of People's Commissars. 

Art. 87. The Soviets may ask for additional credits from 
the respective People's Commissariats for expenditures not set 
forth in the estimate, or where the allotted sum is insufficient. 

Art. 88. In case of an insufficiency of local funds for local 
needs, the necessary subsidy may be obtained from the state 
treasury by applying to the All-Russian Central Executive 
Committee or the Council of People's Commissars. 

section vi 

The Coat of Aems axd Fl.\g of the Russl\n Socialist 
Federated Soviet Republic 

Chapter Seventeen 

Art. 89. The coat of arms of the Russian Socialist Federated 
Soviet Republic consists of a red background on which a golden 
scythe and a hammer are placed (crosswise, handles do\STiward) 
in sun-rays and surrounded by a wreath, inscribed: 

Russian Socialist Soviet Federated Republic 
Workers of the World, Unite! 

Art. 90. The commercial, naval and army flag of the Russian 
Socialist Federated Soviet Republic consists of a red cloth, in 
the left corner of which (on top, near the pole) there are in golden 
characters the letters R. S. F. S. R., or the inscription: Russian 
Socialist Federated Soviet Republic. 

Chairman of the fifth All-Russian Congress of So\nets and 
of the All-Russian Central Executive Committee: J. Sverdloff. 

Executive Officers, All-Russian Central Executive Commit- 
tee: T. I. Teodoro WITCH, F. A. Rosix, A. P. RosE>rHOLz, 
A. C. MiTROFAXOFF, K. G. IVIaxtmoff. 

Secretary of the All-Russian Central Executive Committee: 

V. A. AVANESSOFF. 



CHAPTER XVI 
POLAND 

1. HISTORICAL NOTE 

After the celebrated constitution of May 3, 1791, 
Poland had no fundamental law meriting the name of a 
constitution until, on March 17, 1921, she adopted her 
present charter of government. In the history of political 
institutions, Poland is associated almost exclusively with 
the "liberum veto," by which, from 1650 onward, a single 
member of the Polish diet could by refusing assent defeat 
a resolution otherwise unanimously agreed upon. Hamil- 
ton in The Federalist (No. xxii) used this analogy when he 
complained that "Congress, from the non-attendance of 
a few states, have been frequently in the situation of a 
Polish diet, where a single vote has been sufficient to put 
a stop to all their movements." Voltaire described, not 
only the constitutional arrangement, but also its practical 
poUtics when he said: 

Each deputy enjoys the right which the tribunes of the people 
had at Rome, of opposing the laws of the senate. A single 
gentleman who says, / protest, invalidates by this one word the 
unanimous resolutions of the rest, and if he departs from 
the place where the diet is being held, it must then dissolve. The 
remedy provided for the disorders which arise from this law is 
more dangerous still. Poland is seldom without two factions. 
Unanimity in the diets being thus impossible, each party forms 
a confederation, in which they decide by a plurality of votes, 
without any regard to the protests of the minority. These 
assemblies, illegal, according to the laws, but authorized by the 
laws, are held in the king's name, although often without his 
consent, and against his interests. When the dissensions are 

401 



Polish Con- 
stitution of 
1791 



The lib- 
eruzn veto 



402 NEW CONSTITUTIONS OF EUROPE 

over, it belongs to the general diets to confirm or to annul the 
acts of these confederations. i 

Partitions of The internal stagnation resulting from this liherum 
Poland j,g^^ ^,g^g jjj ^2iVi responsible for Poland's misfortunes.^ 

The first dismemberment took place in 1772. Reduced 
in limits, Poland abolished her ancient government and in 
1791 adopted a constitution copied in part from the consti- 
tution that had been recently adopted in France. May 3 
— the day of the adoption of the constitution — is still 
celebrated in Polish history.^ But a year later the 
second partition took place; and in 1795 the remainder of 
Poland was divided among the rulers of Prussia, Russia, 
and Austria. From the date of the final partition until 
the end of the World War, Poland and the Poles were 
subject to a tripartite alien domination. 
Proposed The restoration of Poland was, from the first, on the 

restoration political tapis of the settlements after the war. On August 

^J. de Boisjoslin, "Poland," Lalor's Cyclopwdia of Political Science, Vol. 
Ill, p. 204. Calhoun used Poland as an example of government by a "concur- 
rent majority" — an extreme example "that woidd be thought impracticable 
had it never existed." In Poland the principle was carried so far "that, in the 
election of her kings, the conciurence or acquiescence, of every individual of the 
nobles and gentry present, in an assembly numbering usually from one himdred 
and fifty to two hundred thousand, was required to make a choice; thus giving 
to each individual a veto on his election. So, likewise, every member of her 
Diet (the supreme legislative body), consisting of the king, the senate, bishops 
and deputies of the nobility, and gentry of the platinates, possessed a veto on 
all its proceedings; — thus making an unanimous vote necessary to enact a law, 
or to adopt any measure whatever. And, as if to carry the principle to the 
utmost extent, the veto of a single member not only defeated the particular bill 
or measure in question, but prevented all others, passed during the session, from 
taking effect. Further, the principle could not be carried. It, in fact, made 
every individual of the nobility and gentry a distinct element in the organism; 
— or, to vary the expression, made him an Estate of the kingdom. And yet this 
government lasted, in this form, more than two centuries; embracing the period 
of Poland's greatest power and renown." "A Disquisition on Government," 
Works, Vol. I, p. 71. 

'See Levinski-Corwin, The Political History of Poland, Chapter XIV (New 
York, 1917). The power which "diplomacy by conference" necessarily grants 
to dissenting minority states, or to a single state if it is of sufficient importance 
in international affairs, resembles in some respects this liberum veto. 

'Polish historians are fond of quoting Burke's eulogy of the constitution 
of 1791. "In contemplating that change, humanity has everjlhing to rejoice 
and glory in; nothing to be ashamed of, nothing to suffer. So far as it has gone, 
it probably is the most pure and defecated public good which has ever been con- 
ferred on mankind." Appeal from the New to the Old Whigs. 



POLAND 



403 



14, 1914, the Grand Duke Nicholas announced that one of 
the war aims of Russia was to secure the autonomy of the 
reunited Pohsh territories under the Romanoff sceptre. 
On November 5, 1916, the German and Austrian Emperors 
proclaimed the creation of a Polish kingdom, united to the 
Central Powers and including the territories that had 
been dominated by Russia. To execute this act, a Provi- 
sional Council of State was created; but it exercised 
only a very nominal legislative and administrative 
authority, although it took some steps toward the framing 
of a constitution under a proposed monarchical form of 
government.^ 

On September 12, 1917, a Council of Regency was cre- 
ated, which was invested with supreme power in the state. 
On February 4, 1918, this Council promulgated a law 
creating a new Council of State with some legislative 
competence. This body began its work on June 22, and 
some days later the Government submitted to it two laws 
— one relating to the convocation of a Polish diet and the 
other to elections. In November a brief and tentative 
constitution was adopted ("the Polish Republic" being 
substituted for the "Council of Regency"), and General 
Joseph Pilsudski was provisionally appointed Chief of 
State. 

Elections for a constituent assembly were held in Jan- 
uary, 1919. Universal suffrage and proportional repre- 
sentation were used. One-third of the population — 
between five and six millions — went to the polls, and 412 
deputies were returned.^ The assembly met at once and 
appointed a commission on the constitution. A number 
of proposals were made by different Polish jurists and polit- 

^Michel Potulicki, Constitution de la republique de Pologne du 17 Mars, 1921, 
p. 7 (Paris, 1921). 

"There were 70 circumscriptions and the apportionment was one representative 
for 50,000 inhabitants or for a fraction exceeding 25,000. This would have 
given 528 representatives; but elections did not take place in circumscriptions in 
Prussian Poland. Blociszewski, "La constitution polonaise du 17 Mars, 1921." 
Revue des Sciences Politiques, Vol. XLV, p. 32 (Janvier-Mars, 1922). 



Council of 

Regency, 

1917 



Constituent 
Assembly of 
1919 



404. NEVr COXSTITUTIONS OF EUROPE 



Contested 
questions 



Constitution 
of 1921 



ical parties, and on Januarj' 21, 1920, a preliminary draft 
was finally adopted by the commission as a basis for dis- 
cussion. On July 8, 1920, the commission made a ma- 
jority report. 

There were five questions that were most bitterly dis- 
cussed. The Left wished no Senate at all, even though 
in the draft proposed the veto of the upper chamber could 
be overridden by a three-fifths vote in the lower house. 
The minority adopted obstructionist tactics, and the 
articles relating to the Senate were not voted until 
January 27 and 28, 1921. The minority wanted the 
Chief of the State elected by popular vote and not by the 
two chambers. The relations between the Church and 
the State were also a source of difference. The minority 
desired to have a separation guaranteed by the consti- 
tution, but the draft proposed to leave the relations of 
Church and State to be determined by law. With regard 
to the re\dsion of the constitution, the draft proposed re- 
vision every twenty-five years, with the proviso that the 
first re\asion might take place after ten years. Various 
solutions were proposed, particularly with respect to the 
first revision.^ Finally, difficulties arose in respect to the 
provisions concerning eminent domain. The parties of 
the Right wanted a constitutional declaration that prop- 
erty could not be taken for public use without compensa- 
tion. But the Socialists, citing the provisions of the Ger- 
man and Czechoslovak constitutions, demanded that the 
legislature be free to expropriate property needed in the 
public interest.^ In the end all differences were reconciled 
and the constitution was adopted on March 17, 1921.^ 



^See Article 125 and note. 

"See Article 99. 

'Blociszewski, op. cit. The text of the constitution used here is that of the 
official translation issued by the Polish Information Bureau (New York City). 
It appeared also in Current History, May, 1921. There are a number of French 
translations, the best being that of Potulicki, op. cit. 



POLAND 405 



2. CONSTITUTION OF THE REPUBLIC OF POLAND 

In the name of Almighty God! 

We, the Pohsh Nation, thankful to Providence for freeing us 
from a servitude of a century and a half; remembering gratefully 
the courage and steadfastness of the self-sacrificing struggle of 
generations which have unceasingly devoted their best efforts 
to the cause of independence; taking up the glorious tradition 
of the memorable Constitution of the Third of May; having in 
mind the weal of our whole, united, and independent mother- 
country, and desiring to establish her independent existence, 
power, safety, and social order on the eternal principles of right 
and liberty; desirous also of ensuring the development of all 
her moral and material forces for the good of the whole of renas- 
cent humanity, and of securing equality to all citizens of the 
Republic, and respect, due rights, and the special protection of 
the state to labor; — do enact and establish in the Legislative 
Sejm of the Republic of Poland this constitutional law. 

section i 
The Republic 

Article 1. The Polish State is a Republic. 

Art. 2, Sovereignty in the Republic of Poland belongs to 
the nation. The organs of the nation are: in the domain of 
legislation, the Sejm and the Senate; in the domain of executive 
power, the President of the Republic, jointly with the responsi- 
ble ministers; in the domain of the administration of justice, 
independent courts. 

section ii 
Legislative Power 

Art. 3. The domain of state legislation comprises the estab- 
lishment of all public and private laws, and the manner of their 
execution. 

There can be no statute without the consent of the Sejm, ex- 
pressed in a manner conforming to the Standing Orders. 

A statute voted by the Sejm comes into force at the time de- 
termined in the statute itself. 

The RepubUc of Poland, basing its organization on the prin- 



406 NEW CONSTITUTIONS OF EUROPE 

ciple of broad territorial self-government, will delegate to the 
bodies representing this self-government the proper domain of 
legislation, especially in administrative, cultural, and economic 
fields, to be defined more fully by statutes of the state. 

Ordinances by public authorities, from which result rights or 
duties of citizens, have binding force only if issued by the au- 
thority of a statute, and with a specific reference to the same. 

Art. 4. A statute of the state will determine annually the 
budget of the state for the ensuing year. 

Art. 5. The establishment of the numerical strength of the 
army, and permission for the annual draft of recruits, can be 
determined only by statute. 

Art. 6. The contracting of a state loan, the alienation, ex- 
change or pledging of immovable property of the state, the im- 
position of taxes and public dues, the determination of customs 
duties and monopolies, the establishment of the monetary system 
and the taking over by the state of a financial guarantee, can 
take place only by the authority of a statute. 

Art. 7. The Government will present annually for parlia- 
mentary confirmation the accounts of the state for the past 
year. 

Art. 8. The manner of exercising parliamentary control over 
the debts of the state will be defined by a special statute. 

Art. 9. The control of the whole state administration as 
regards finances; the examination of the accounts of the state; 
the annual submission to the Sejm of its motion for the granting 
or refusing of its absolutorium to the Government, are in the 
hands of the Supreme Board of Control, which is organized 
on the basis of coUegiality and judicial independence of its mem- 
bers, the latter being removable only by a vote of the Sejm rep- 
resenting a majority of three-fifths of those actually voting. 
The organization of the Supreme Board of Control and its 
method of procedure will be defined in detail by a special statute. 

The President of the Supreme Board of Control enjoys a 
position equal to that of a Minister, but he is not a member of 
the Council of Ministers and is directly responsible to the Sejm 
for the exercise of his office and for the officials who are his sub- 
ordinates. 

Art. 10. Measures can originate either with the government 
or with the Sejm. Motions and bills which involve expenditure 
from the state treasury must state the manner of their raising 
and expenditure. 



POLAND 407 

Art. 11. The Sejm is composed of deputies elected for a term 
of five years to be counted from the day of the opening of the 
Sejm, by secret, direct, equal, and proportional voting. 

Art. 12. The right to vote belongs to every Polish citizen 
without distinction of sex, who, on the day of the proclamation 
of the elections, is twenty-one years of age, is in full possession 
of civil rights, and is a resident of the electoral district at least 
from the day preceding the proclamation of the elections in the 
Journal of Laws. The right to vote can be exercised only in 
person. Members of the army in active service do not possess 
the right to vote. 

Art. 13. Every citizen having the right to vote is eligible 
for election to the Sejm, independently of his place of residence, 
if he is at least twenty -five years of age, not excepting members 
of the army in active service. 

Art. 14. Citizens convicted of offenses which the law of 
elections may define as involving temporary or permanent loss 
of the right to vote, of eligibility, or of being a deputy, may not 
enjoy the electoral right. 

Art. 15. Administrative, revenue, and judicial officials of the 
state may not be elected in the districts in which they are per- 
forming their official duties. This rule does not apply to offi- 
cials employed in the central departments. 

Art. 16. State and self-government employees obtain leaves 
of absence at the moment of being elected deputies. This rule 
does not apply to ministers, under-secret aries of state, and pro- 
fessors in academic schools. The years spent in the exercise 
of the duties of a deputy are considered as years of service. 

Art. 17. A deputy loses his seat on being appointed to a 
paid office of the state. This rule does not apply to appoint- 
ment as minister, under-secretary of state, or professor in an 
academic school. 

Art. 18. The law of elections will define the manner of elect- 
ing deputies to the Sejm. 

Art. 19. The validity of unprotested elections is verified by 
the Sejm. The validity of protested elections is decided upon 
by the Supreme Court. 

Art. 20. The deputies are representatives of the whole na- 
tion and are not bound by any instructions given by the voters. 

The deputies make to the Marshal the following vow in the 
presence of the Chamber: "I do solemnly vow, as deputy to the 
Sejm of the Republic of Poland, to work honestly, according to 



408 NEW CONSTITUTIONS OF EUROPE 

the best of my understanding and in conformity with my con- 
science, for the sole good of the Pohsh State as a whole." 

Art. 21. Deputies cannot be made responsible, either during 
their term of office or after it has expired, for their activities in 
or out of the Sejm appertaining to the exercise of their office as 
deputies. For their speeches, utterances, and manifestations in 
the Sejm, deputies are responsible only to the Sejm. For viola- 
tion of the rights of a third person, they may be made to answer 
before a court of law, if the judicial authority obtains the con- 
sent of the Sejm thereto. 

Criminal, penal-administrative, or disciplinary proceedings 
instituted against a deputy before his election, may, at the de- 
mand of the Sejm, be suspended until the expiration of his term 
of office. 

Prescription in criminal proceedings against a deputy does 
not run while he retains his office. While he retains his office, 
a deputy may not, without the permission of the Sejm, be made 
to answer before a criminal court, penal-administrative author- 
ity, or a disciplinary court, or be deprived of his freedom. If a 
deputy is caught in the act of committing a common felony, 
and if his arrest is necessary to insure the administration of 
justice, or to avert the consequences of the offense, the court 
is bound to notify immediately the Marshal of the Sejm in order 
to obtain the consent of the Sejm to his arrest and to further 
criminal proceedings. Upon demand of the Marshal, the ar- 
rested deputy must be liberated at once. 

Art. 22. A deputy may not, either in his own name or in the 
name of another, buy, or acquire the lease of, any real property 
of the state, contract for public supplies or government works, 
or obtain from the government any concessions or other personal 
benefits. A deputy is also debarred from receiving from the 
government any decorations other than military. 

Art. 23. A deputy may not be the responsible editor of a 
periodical publication. 

Art. 24. The deputies receive compensation the amount 
of which is determined by the standing orders, and are entitled 
to the free use of the state means of communication for travel- 
ling over the whole territory of the Republic. 

Art. 25. The President of the Republic convokes, opens, 
adjourns, and closes the Sejm and Senate. The Sejm must be 
convoked to assemble on the third Tuesday after election day, 
and every year, at the latest in October, to an ordinary session 



POLAND 409 

for the purpose of voting the budget, the numerical strength 
and recruiting of the army, and other current affairs. 

The President of the Repubhc may, at his own discretion, 
convoke the Sejm to an extraordinary session at any time and 
is bound to do this within two weeks upon request of one-third 
of the total number of deputies. 

Other cases in which the Sejm assembles in extraordinary 
session are determined by this constitution. 

An adjournment requires the consent of the Sejm, if previous 
adjournment has taken place during the same ordinary session, 
or if the interruption is to last for more than thirty days. 

The Sejm, when convoked in October for its ordinary session, 
may not be closed before the budget has been voted. 

Art. 26. The Sejm may be dissolved by its own vote, passed 
by a majority of two-thirds of those voting. The President 
of the Republic may dissolve the Sejm with the consent of three- 
fifths of the statutory number of members of the Senate in the 
presence of at least one-half of the total membership.^ In both 
cases the Senate is automatically dissolved at the same time. 

Elections will take place within forty days from the date of 
dissolution, the precise date to be determined either in the resolu- 
tion of the Sejm or in the message of the President, on the dis- 
solution of the Sejm. 

Art. 27. The deputies exercise all their rights and duties in 
person. 

Art. 28. The Sejm elects from among its members, the Mar- 
shal, his deputies, the secretaries, and committees. 

The Marshal and his deputies continue in office after the dis- 
solution of the Sejm until the new Sejm shall have elected its 
officers. 

Art. 29. The standing rules of the Sejm define the mode and 
order of the proceedings of the Sejm, the type and number of 
the committees, the number of marshals and secretaries, the 
rights and duties of the Marshal. The employees of the Sejm 
are appointed by the Marshal, who is responsible to the Sejm 
for their actions. 

Art. 30. The meetings of the Sejm are public. On the mo- 
tion of the Marshal, of a Government representative, or of thirty 
deputies, the Sejm may vote the secrecy of its meetings. 

Art. 31. No one may be called to account for a truthful 



^There is an inconsistency here which is not explained by the Pohsh text. 



410 NEW CONSTITUTIONS OF EUROPE 

report of an open meeting of the Sejm or a committee of the 
Sejm. 

Art. S2. A vote is vahd only when carried by an ordinary 
majority in the presence of at least one-third of the total statu- 
tory number of deputies, in so far as provisions of this constitu- 
tion do not contain other rules. 

Art. 33. The deputies have the right of addressing interpel- 
lations to the Government or to individual ministers, in the 
manner prescribed by the standing rules. A minister is bound 
to answer, within six weeks, orally or in writing, or submit a 
statement wherein he justifies his failure to give an answer to 
the point. At the request of those addressing the interpellation, 
the answer must be communicated to the Sejm. The Sejm 
may make the answer the subject of debate and vote. 

Art. 34. The Sejm may form and appoint for the investiga- 
tion of individual cases, extraordinary committees empowered 
to hear the interested parties, as well as to summon witnesses 
and experts. The competence and powers of such committees 
will be determined bj^ the Sejm. 

Art. 35. Every bill passed by the Sejm will be submitted 
to the Senate for consideration. If the Senate, within thirty 
days from the day on which a passed bill has been delivered to 
it, does not raise any objections to the bill, the President of the 
Republic will direct the publication of the statute. Upon the 
motion of the Senate, the President of the Republic may direct 
the publication of the statute before the lapse of the thirty 
days. 

If the Senate decides to alter or reject a bill passed by the 
Sejm, it must announce this to the Sejm within the aforesaid 
thirty days, and must return the bill to the Sejm with the pro- 
posed changes within the following thirty days. 

If the Sejm approves by an ordinary majority, or rejects by 
a majority of eleven-twentieths of those voting, the changes 
proposed by the Senate, the President of the Republic vn\\ 
direct the publication of the statute in the wording determined 
by the second vote of the Sejm. 

Art. 36. The Senate is composed of members elected by the 
individual Voyevodships, by universal, secret, direct, equal, and 
proportional voting. Every Voyevodship forms one constit- 
uency and the number of senators is equal to one-fourth of the 
number of members of the Sejm, in proportion to the number of 
inhabitants. The right of electing to the Senate is enjoyed by 



POLAND 411 

every elector for the Sejm who, on the day of the proclamation 
of the elections, is thirty years of age and has on that day been 
a resident of the electoral district for at least one year; the right 
of voting is not lost by newly settled colonists who have left 
their former place of residence, availing themselves of the agra- 
rian reform; neither is that right lost by workmen who have 
changed their place of residence as a result of changing their 
place of occupation, or by the state oflBcials transferred by their 
superior authorities. Eligibility is enjoyed by every citizen 
who has the right of voting for the Senate, not excluding mem- 
bers of the army in active service, provided that citizen is forty 
years of age on the day of the proclamation of the elections. 

The term of the Senate begins and ends with the term of the 
Sejm. 

No one may be at the same time a member of the Sejm and 
of the Senate. 

Art. 37. The provisions contained in Articles 14, 15, 16, 17, 
19, 20, 21, 22, 23, 24, 27, 28, 29, 30, 31, 32, and 33 have analogous 
application to the Senate and to its members respectively. 

Art. 38. No statute may be in opposition to this constitu- 
tion or violate its provisions. 

section iii 
Executive Power 

Art. 39. The President of the Republic is elected for seven 
years by the absolute majority of the votes of the Sejm and the 
Senate united in National Assembly. The National Assembly 
is convoked by the President of the Republic in the last three 
months of his seven years' term of office. If the convocation 
has not taken place thirty days before the end of the seven years' 
term, the Sejm and the Senate, upon the invitation of the Mar- 
shal of the Sejm and under his chairmanship, unite automati- 
cally in National Assembly. 

Art. 40. Should the President of the Republic be unable to 
perform the duties of his office, or should the office of the Presi- 
dent of the Republic become vacant through death, resignation, 
or some other reason, the Marshal of the Sejm will act as his 
deputy. 

Art. 41, In case the office of the President of the Republic 
becomes vacant, the Sejm and the Senate, upon the invitation 
of the Marshal of the Sejm and under his chairmanship, at once 



412 NEW CONSTITUTIONS OF EUROPE 

unite automatically in a National Assembly for the purpose of 
electing a President. 

Should the Sejm be dissolved at the moment when the office 
of President of the Republic becomes vacant, the Marshal of the 
Sejm will direct without delay new elections to the Sejm and 
the Senate. 

Art. 42. If the President of the Republic does not perform 
the duties of his office for three months, the Marshal will with- 
out delay convoke the Sejm and submit to its decision the ques- 
tion whether the office of the President of the Republic is to be 
declared vacant. 

The decision to declare the office vacant is taken by a majority 
of three-fifths of the votes in the presence of at least one-half 
of the statutory number of deputies; that is, the number pre- 
scribed by the Law of Election. 

Art. 43. The President of the Republic exercises the execu- 
tive power through ministers responsible to the Sejm and through 
officials subordinated to the Ministers. 

Every official of the Republic must be subordinate to a minis- 
ter, who is responsible to the Sejm for the former's actions. 

The President of the Council of Ministers countersigns the 
appointment of officials of the civil cabinet of the President of 
the Republic, and is responsible for their actions to the Sejm. 

Art. 44. The President of the Republic signs the statutes 
jointly with the competent ministers, and directs the publication 
of the statutes in the Journal of the Laws of the Republic. 

The President of the Republic has the right to issue, for the 
purpose of executing the statutes and with reference to the 
statutory authorization, executive ordinances, directions, orders 
and prohibitions, and to insure their execution by the use of 
force. 

The ministers and the authorities subordinate to them have 
the same right in their respective fields of jurisdiction. 

Every governmental act of the President of the Republic 
requires for its validity the signature of the President of the 
Council of Ministers and of the competent minister, who, by 
countersigning the act, assume the responsibility therefor. 

Art. 45. The President of the Republic appoints and recalls 
the President of the Council of Ministers; on the latter's motion 
he appoints and recalls ministers, and on the motion of the Coun- 
cil of Ministers makes appointments to the civil and military 
offices reserved by statutes. 



POLAND 413 

Art. 46. The President of the Republic is at the same time 
the supreme head of the armed forces of the state, but he may 
not exercise the chief command in time of war. 

The Commander-in-Chief of the armed forces of the state, in 
case of war, is appointed by the President of the RepubUc, on 
the motion of the Council of Ministers, presented by the min- 
ister of mihtary affairs who is responsible to the Sejm for the 
acts connected with the command in time of war, as well as for 
all affairs of military direction. 

Art. 47. The right to reprieve and to mitigate punishment, 
and to destroy the consequences of criminal conviction in in- 
dividual cases, belongs to the President of the Republic. 

The President may not exercise this right in the case of minis- 
ters convicted upon impeachment by the Sejm. 

Amnesty may be granted only by statute. 

Art. 48. The President of the Republic in foreign relations, 
receives diplomatic representatives of foreign states, and sends 
diplomatic representatives of the Polish State to foreign states. 

Art. 49. The President of the Republic makes treaties with 
other states and brings them to the notice of the Sejm. 

Commercial and customs treaties, as well as treaties which 
impose a permanent financial burden on the state, or contain 
legal rules binding on the citizens, or change the frontiers of the 
state, also alliances, require the consent of the Sejm. 

Art. 50. The President of the Republic may declare war and 
conclude peace only after obtaining the consent of the Sejm. 

Art. 51. The President of the Republic is not responsible 
either to Parliament or at civil law. 

For betraying the country, violating the constitution, or for 
criminal offenses, the President of the Republic may be made 
responsible only by the Sejm by a vote of a majority of three- 
fifths in the presence of at least one-half of the statutory num- 
ber of deputies. The cause is heard and the sentence given by 
the Court of State, according to the rules of a special statute. 
Immed^iately upon his impeachment before the Court of State, 
the President of the Republic is suspended from oflBce. 

Art. 52. The President of the Republic receives a salary ac- 
cording to the rules of a special statute. 

Art. 53. The President of the Republic may not hold any 
other office or be a member of the Sejm or the Senate. 

Art. 54. Before assuming office, the President of the Republic 
takes his oath in the National Assembly, in the following terms : 



414 NEW CONSTITUTIONS OF EUROPE 

"I swear to Almighty God, One in the Holy Trinity, and I 
vow to Thee, Polish Nation, that while holding the office of 
President of the Republic I will keep and defend faithfully the 
laws of the Repubhc and above all the constitutional law; that 
I shall serve devotedly, with all my power, the general good of 
the nation; that I wnU avert, watchfully, from the state all evil and 
danger; that I will guard steadfastly the dignity of the name of 
Poland; that I will hold justice toward all citizens without 
distinction as the highest virtue; that I wall devote myself in- 
dividually to the duties of office and service. So help me God 
and the Holy Martyrdom of His Son. Amen." 

Art. 55. The ministers form the Council of Ministers under 
the chairmanship of the President of the Council of Ministers. 

Art. 56. The Council of Ministers bears the joint constitu- 
tional and parliamentary responsibility for the general direc- 
tion of the activities of the government. 

Apart from that, each minister is individually responsible, 
in his domain, for his activities in office; that is, as well for their 
conformity with the constitution and the other statutes of the 
state, and for the activities of the subordinate organs, as for 
the direction of his policies. 

Art. 57. Within the same limits, the ministers are jointly 
and individually responsible for the governmental acts of the 
President of the Republic. 

Art. 58. The parliamentary responsibility of the ministers 
is enforced by the Sejm by an ordinary majority. The Council 
of Ministers or any individual minister will resign at the request 
of the Sejm. 

Art. 59. The constitutional responsibility of the ministers and 
the way of its realization will be determined by a special statute. 

The decision to impeach a minister can be made only in the 
presence of at least one-half the statutory number of deputies 
and by a majority of three-fifths of the votes cast. 

The causes are heard and judgment is passed by the Court 
of State. A minister cannot evade his constitutional respon- 
sibility by resigning his office. Immediately upon his impeach- 
ment, the minister is suspended from office. 

Art. 60. The ministers and officials delegated by them have 
the right to take part in the meetings of the Sejm, and to speak 
out of the turn of those figuring on the list of speakers; they 
may take part in the vote if they are deputies. 

Art. 61. The ministers may not hold any other office or 



POLAND 415 

participate in the governing or controlling bodies of societies 
and institutions which work for profit. 

Art. 62. Should the office of a minister be held by a provisory 
head of the ministry, he will be subject to all the rules concern- 
ing the office of a ministry. The President of the Council of 
Ministers wdll, in case of need, appoint one of the ministers his 
deputy. 

Art. 63. A special statute will determine the number, com- 
petence, and mutual relation of the Ministers, as well as the 
competence of the Council of Ministers. 

Art. 64. The Court of State is composed of the First Presi- 
dent of the Supreme Court as chairman, and of twelve members, 
eight of whom are elected by the Sejm and four by the Senate 
from outside their own membership. 

To membership in the Court of State are eligible persons who 
do not hold any State office, and are in full possession of civil 
rights. 

The election of the members of the Court of State is carried 
out by the Sejm and the Senate immediately upon the election 
of their officers for the whole term of the Sejm. 

Art. 65. For administrative purposes, the Polish State will 
be divided by statute into Voyevodships, districts, and urban 
and rural communes, which will at the same time be the units 
of territorial self-government. 

The units of self-government may combine into unions in 
order to accomplish tasks which belong to the domain of self- 
government. 

Such unions may obtain the character of bodies of public 
law only by special statute. 

Art. 66. The administration of the state will be organized 
on the principle of decentralization, organs of state administra- 
tion in the individual territorial units being, as far as possible, 
joined in one official body under one superior, and on the prin- 
ciple that within the limits determined by statutes, citizens 
elected for this purpose shall participate in the discharge of the 
duties of such official bodies. 

Art. 67. The right of determining afiFairs belonging to the 
domain of self-government rests with elected councils. The 
executive functions of Voyevodship and district self-government 
rests with organs formed by adding to boards elected by rep- 
resentative bodies, representatives of State administrative 
authorities, under the chairmanship of the latter. 



416 NEW CONSTITUTIONS OF EUROPE 

Art. 68. A special statute will create, in addition to territorial 
self-government, economic self-government for the individual 
fields of economic life; namely, chambers of agriculture, com- 
merce, industry, arts and crafts, hired labor and others, united 
into a Supreme Economic Council of the Republic, the collab- 
oration of which with state authorities, in directing economic 
life and in the field of legislative proposals, will be determined 
by statutes. 

Art. 69. The sources of revenue of the state and of self- 
government organizations respectively, will be strictly delimi- 
nated by statutes. 

Art. 70. The state will exercise supervision over self- 
government activities through superior self-government boards; 
such supervision may, however, be partially delegated by statute 
to administrative courts. 

Statutes will determine the cases in which decisions of self- 
government organs may exceptionally require confirmation by 
superior self-government organs or by ministries. 

Art. 71. An appeal from decisions of state and self-govern- 
ment organs will be allowed only to one superior body, unless 
other provisions are made by statutes. 

Art. 72. Statutes will put into effect the principle that from 
penal decisions of administrative authorities, made in the first 
instance, the parties concerned will have the right to appeal 
to the competent court. 

Art. 73. For the purpose of passing upon the legality of 
administrative acts in the field of state, as well as of self- 
government administrative, a special statute will create admin- 
istrative courts, basing their organization on the cooperation 
of (lay) citizens and (professional) judges, and culminating in a 
Supreme Administrative Court. 



section iv 
Judiciary 

Art. 74. The courts administer justice in the name of the 
Republic of Poland. 

Art. 75. The organization, jurisdiction, and procedure of all 
courts will be defined by legislation. 

Art. 76. The President of the Republic appoints the judges, 



POLAND 417 

unless a different provision is made by statute, but justices of 
the peace are, as a rule, elected by the population. 

Judicial office is accessible only to persons who possess the 
qualifications required by law. 

Art. 77. In the exercise of their judicial office, the judges 
are independent, and subject only to statutes. 

Judicial decisions may not be changed either by the legisla- 
tive power or by the executive power. 

Art. 78. A judge may be removed from office, suspended 
from office, transferred to a different place of oflSce, or pensioned, 
against his own will, by judicial decision only, and only in cases 
provided by statute. 

This rule does not apply in the case of the transfer of a judge 
to a different place, or his pensioning owing to a change in the 
organization of the courts decided upon by statute. 

Art. 79. Judges may not be criminally prosecuted or be de- 
prived of their freedom without the previous consent of the court 
assigned by statute, unless they are caught in the act, but even 
in this last case the court may demand that the arrested judge 
be freed without delay. 

Art. 80. A special statute will define the peculiar position 
of the judges, their rights and duties, as well as their compensa- 
tion. 

Art. 81. The courts have not the right to inquire into the 
validity of duly promulgated statutes. 

Art. 82. The hearings before a determining court, as well 
in civil as in criminal cases, are public, except when statutes 
provide otherwise. 

Art. 83. Courts with juries will be called upon to determine 
cases of felonies entailing more severe punishment, and cases 
of political offenses. Statutes will define in detail the jurisdic- 
tion of courts with juries, the organization of such courts, and 
their procedure. 

Art. 84. A Supreme Court for judicial causes, civil and crim- 
inal, is hereby created. 

Art. 85. Special statutes will define the organization of 
military courts, their jurisdiction, procedure, and the rights and 
duties of the members of such courts. 

Art. 86. A special Competence Court^ will be created by a 
statute to determine conflicts of jurisdiction between the admin- 
istrative authorities and the courts. 

^Tribunal of Conflicts. 



418 NEW CONSTITUTIONS OF EUROPE 

section v 
General Duties and Rights of Citizens 

Art. 87. A Polish citizen may not be at the same time a 
citizen of another state. 

Art. 88. Pohsh citizenship is acquired: 

(1) By birth if the parents are Pohsh citizens, 

(2) By naturalization granted by the competent state au- 
thority. 

Special statutes define other rules as to Polish citizenship, 
its acquisition and loss. 

Art. 89. FideUty to the Republic of Poland is the first duty 
of a citizen. 

Art. 90. Every citizen has the duty of respecting and obey- 
ing the constitution of the state and other valid laws and or- 
dinances of the state and self-government authorities. 

Art. 91. All citizens are subject to military service; the char- 
acter and manner, order and term of service, exemption from 
such duty, and any duties, contributions or services for military 
purposes, will be defined by legislation. 

Art. 92. It is the duty of all citizens to submit to any pub- 
lic burdens, services, and duties imposed by virtue of statute. 

Art. 93. All citizens are bound to respect legitimate author- 
ity and to facilitate the performance of its duties, as well as to 
perform conscientiously public duties to which they may be 
appointed by the nation or the proper authority. 

Art. 94. It is the duty of citizens to bring up their children 
as righteous citizens of the mother country, and to secure to 
them at least elementary education. 

This duty will be defined more in detail by a special statute. 

Art. 95. The Republic of Poland guarantees on its territory, 
to all, without distinction of extraction, nationality, language, 
race, or religion, full protection of life, liberty, and property. 

Foreigners enjoy, on condition of reciprocity, rights equal 
to those of citizens of the Polish State, and have duties equal to 
those of such citizens, unless statutes expressly require Polish 
citizenship. 

Art. 96. All citizens are equal before the law. Public offices 
are accessible in equal measure to all, on conditions prescribed 
by the law. 

The Republic of Poland does not recognize privileges of birth 
or of estate, or any coats of arms, family or other titles, with 



POLAND 419 

the exception of those of learning, oflBce, or profession. A Pol- 
ish citizen may not accept foreign titles or orders without the 
permission of the President of the Republic. 

Art. 97. Limitations of personal liberty, especially search of 
person and arrest, are admissible only in cases prescribed by 
law, and in the manner defined by statutes, by virtue of an or- 
der from judicial authorities. 

In case a judicial order cannot be issued immediately, it 
should be served, at the latest, within forty-eight hours, with 
a statement of the reasons of the search or arrest. 

Arrested persons who have not been served within forty-eight 
hours with a written statement of the cause of arrest, signed 
by a judicial authority, regain their freedom at once. 

The means of compulsory service by which the administra- 
tive authorities may enforce their orders are determined in 
statutes. 

Art. 98. No one may be deprived of the court to which he is 
subject by law. Exceptional courts are admissible only in 
cases determined by statutes, which statutes must have been 
issued before the offense was committed. A citizen may be 
prosecuted and punishment inflicted only by virtue of a statute 
actually in force. Punishments involving physical suffering 
are not permitted, and no one may be subjected to such punish- 
ment. 

No statute may deprive a citizen of access to the courts for 
the purpose of demanding reparation for injury or damage. 

Art. 99. The Republic of Poland recognizes all property, 
whether belonging personally to individual citizens or collec- 
tively to associations of citizens, institutions, self-government 
organizations, or the state itself, as one of the most important 
bases of social organization and legal order, and guarantees to 
all citizens, institutions, and associations, protection of their 
property, permitting only in cases provided by a statute the 
abolition or limitation of property, whether personal or collec- 
tive, for reasons of higher utility, against compensation. Only 
a statute may determine to what extent property, for reasons 
of public utility, shall form the exclusive property of the state, 
and in how far rights of citizens and of their legally recognized 
associations to use freely land, waters, minerals, and other treas- 
ures of nature, may be subject to limitations for public reasons. 

The land, as one of the most important factors of the existence 
of the nation and the state, may not be the subject of unre- 



420 NEW CONSTITUTIONS OF EUROPE 

stricted transfer (commerce). Statutes will define the right of 
the state to buy up land against the will of the owners, and to 
regulate the transfer of land, applying the principle that the 
agrarian organization of the Republic of Poland should be based 
on agricultural units capable of regular production and forming 
private property. 

Art. 100. The home and hearth of the citizen are inviolable. 
Infringements of this right by entering the home, searching it 
and taking papers or movables may, apart from the necessity 
of executing administrative orders based on a specific statutory 
authorization, take place only by order of judicial authorities, 
in the manner and in the cases prescribed by the protection 
statute. 

Art. 101. Every citizen has the liberty of selecting on the 
territory of the state his place of residence and abode, to move 
about and to emigrate, as well as to choose his occupation and 
profession, and to transport his property. 

These rights may be restricted only by statute. 

Art. 102. Labor is the main basis of the wealth of the Repub- 
lic, and should remain under the special protection of the state. 

Every citizen has the right to state protection for his labor, 
and in case of lack of work, illness, accident, or debility, to the 
benefits of social insurance which will be determined by a special 
statute. 

The state has the duty of making accessible also moral guid- 
ance and religious consolation to citizens under its immediate 
care in public institutions, such as educational institutions, bar- 
racks, hospitals, prisons, and charitable homes. 

Art. 103. Children without sufficient parental care, neglected 
with respect to education, have the right to state care and aid 
within the limits to be determined by statute. 

Parents may not be deprh^ed of authority over their children 
except by judicial decision. 

Special statutes determine the protection of motherhood. 

Children under fifteen years of age may not be wage-earners; 
neither may women be employed at night, or young laborers 
be employed in industries detrimental to their health. 

Permanent employment of children and young people of 
school age for wage-earning purposes is forbidden. 

Art. 104. Every citizen has the right to express freely his 
ideas and convictions in so far as he does not thereby violate 
legal provisions. 



POLAND 421 

Art. 105. Freedom of the press is guaranteed. Censorship, 
or the system of Hcensing printed matter, may not be intro- 
duced. Daily papers and other matter printed in the country 
may not be debarred from the mails, nor may their dissemina- 
tion on the territory of the Republic be restricted. 

A special statute will define the responsibility for the abuse 
of this freedom. 

Art. 106. The secrecy of letters and other correspondence 
may be infringed upon only in cases provided by law. 

Art. 107. Citizens have the right of presenting individual 
or collective petitions to all state and self-government represen- 
tative bodies and public authorities. 

Art. 108. Citizens have the right of combining, meeting, 
and forming associations and unions. 

The exercise of these rights is defined by statutes. 

Art. 109. Every citizen has the right of preserving his na- 
tionality and developing his mother-tongue and national char- 
acteristics. 

Special statutes of the state will guarantee to minorities in 
the Polish State the full and free development of their national 
characteristics, with the assistance of autonomous minority 
unions, endowed with the character of public law organizations, 
within the limits of unions of general self-government. 

The state will have, in regard to their activity, the right of 
control and of supplementing their financial means in case of 
need. 

Art. 110. Polish citizens belonging to national, religious, or 
linguistic minorities have the same right as other citizens of 
founding, supervising, and administering at their own expense, 
charitable, religious, and social institutions, schools and other 
educational institutions, and of using freely therein their lan- 
guage, and observing the rules of their religion. 

Art. 111. Freedom of conscience and of religion is guaran- 
teed to all citizens. No citizen may suffer a limitation of the 
rights enjoyed by other citizens, by reason of his religion and 
religious convictions. 

All inhabitants of the Polish State have the right of freely 
professing their religion in public as well as in private, and of 
performing the commands of their religion or rite, in so far as 
this is not contrary to public order or public morality. 

Art. 112. Religious freedom may not be used in a way con- 
trary to statutes. No one may evade the performance of public 



422 NEW CONSTITUTIONS OF EUROPE 

duties by reason of his religious beliefs. No one may be com- 
pelled to take part in religious activities or rites unless he is 
subject to parental or guardians' authority. 

Art. 113. Every religious community recognized by the 
state has the right of organizing collective and public services; 
it may conduct independently its internal affairs; it may possess 
and acquire movable and immovable property, administer and 
dispose of it; it remains in possession and enjoyment of its en- 
dowments and funds, and of religious, educational, and charita- 
ble institutions. No religious community may, however, be 
in opposition to the statutes of the state. 

Art. 114. The Roman Catholic religion, being the religion 
of the preponderant majority of the nation, occupies in the state 
the chief position among enfranchised religions. The Roman 
Catholic Church governs itself under its own laws. The rela- 
tion of the state to the church will be determined on the basis 
of an agreement with the Apostolic See, which is subject to 
ratification by the Sejm. 

Art. 115. The churches of the religious minorities and other 
legally organized religious communities govern themselves by 
their own laws, which the state may not refuse to recognize 
unless they contain rules contrary to law. 

The relation of the state to such churches and religions will 
be determined from time to time by legislation after an under- 
standing with their legal representatives. 

Art. 116. The recognition of a new, or hitherto not legally 
recognized religion, may not be refused to religious communities 
whose institutions' teachings and organization are not contrary 
to public order or public morality. 

Art. 117. Learned investigations and the publication of their 
results are free. Every citizen has the right to teach, to found 
a school or educational institution, and to direct it if he complies 
with the requirements laid down by statutes concerning the 
qualifications of teachers, the safety of the child entrusted to 
him, and a loyal attitude toward the state. All schools and 
educational institutions, public as well as private, are subject 
to supervision by state authorities within the limits prescribed 
by statutes. 

Art. 118. Within the limits of the elementary school, in- 
struction is compulsory for all citizens of the state. A statute 
will define the period, limits, and manner of acquiring such edu- 
cation. 



POLAND 423 

Art. 119. Teaching in state and self-government schools 
is gratuitous. 

The state will insure to pupils who are exceptionally able, 
but not well-to-do, scholarships for their maintenance in secon- 
dary and academic schools. 

Art. 120. Instruction in religion is compulsory for all pupils 
in every educational institution, the curriculum of which in- 
cludes instruction of youth under eighteen years of age, if the 
institution is maintained wholly or in part by the state, or 
by self-government bodies. The direction and supervision of 
religious instruction in schools belongs to the respective religious 
communities, reserving to the state educational authorities the 
right of supreme supervision. 

Art. 121. Every citizen has the right to compensation for 
damage inflicted upon him by civil or military organs of state 
authorities, by an official act not in accordance with the right 
or duties of the service. The state is responsible for the dam- 
age, jointly with the guilty organs; action may be brought 
against the state and against officials, independently of any 
permission by a public authority. Communes and other self- 
government bodies, as well as their organs, are responsible in 
the same manner. 

Special statutes will define the application of this principle. 

Art. 122. The rules as to citizens' rights apply also to per- 
sons belonging to the armed force. Special military statutes 
define exceptions to this principle. 

Art. 123. Armed force may be used only by request of a 
civil authority under strict obedience to statutes, for the pur- 
pose of putting down disturbances, or of enforcing the execution 
of legal rules. Exceptions to this principle are admissible only 
by virtue of statutes on the state of siege and of war. 

Art. 124. A temporary suspension of citizen's rights; of 
personal liberty (Article 97), of inviolability of home and hearth 
(Article 100), of freedom of the press (Article 105), of secrecy 
of correspondence (Article 106), of the right of combining, meet- 
ing, and forming associations (Article 108), may take place for 
the whole territory of the state or for localities in which it may 
prove necessary for reasons of public safety. 

Such suspension may be directed only by the Council of Min- 
isters, by permission of the President of the Republic, during 
a war or when an outbreak of war threatens, as well as in case 
of internal disturbances or of widespread conspiracies which 



424 NEW CONSTITUTIONS OF EUROPE 

bear the character of high treason and threaten the constitution 
of the state or the safety of the citizens. 

Such a decision of the Council of Ministers, if made while 
the Sejm is in session, must be immediately submitted to the 
Sejm for confirmation. If such a decision, to apply on a terri- 
tory which comprises more than one Voyevodship be issued dur- 
ing an interval between meetings of the Sejm, the Sejm meets 
automatically within eight days from the publication of the 
decision in order to take the proper step. 

Should the Sejm refuse confirmation, the state of siege im- 
mediately loses its binding force. If the Council of Ministers 
directs a state of siege after the expiration of the term of the 
Sejm, or after dissolution of the Sejm, the decision of the Govern- 
ment must be submitted to the newly elected Sejm without de- 
lay, at its first meeting. 

These principles will be defined more in detail by a statute 
on the state of siege. 

A statute on the state of war will define the principles of a 
temporary suspension of the above enumerated rights of citizens 
in time of war on the territory affected by war operations. 

Art. 125. A change in the constitution may be voted only in 
the presence at least of one-half the statutory number of Dep- 
uties or Senators respectively, by a majority of two-thirds of 
the votes. 

The motion to change the constitution must be signed by 
at least one-fourth of the total statutory number of Deputies 
and notice of such a motion must be given at least fifteen days 
in advance. 

The second Sejm, which will meet on the basis of this consti- 
tution, may revise this constitutional law by its own vote, taken 
by a majority of three-fifths, in the presence of at least one-half 
the statutory number of Deputies. 

Every twenty-five years after the adoption of the present 
constitution, revision shall take place following the decision 
of the Sejm and the Senate, united in a National Assembly and 
voting by an ordinary majority.^ 

Art. 126. This constitution has binding force from the day 
of its publication, or in so far as the realization of its individual 

^This whole article is omitted in the official draft issued by the Polish Informa- 
tion Bureau. The last paragraph (relating to revision every twenty-five years) 
does not appear in the Current History translation (May, 1921). It is found, 
however, in Potulicki, Constitution de la republique de Pologne du 17 Mars 1921, 
p. 80 (Paris, 1921). 



POLAND 425 

provisions is dependent on the issuing of special statutes on the 
day of their going into force. 

All legal rules and institutions now in force, which do not 
agree with the rules of this constitution, will, within a year from 
the voting of this constitution, be submitted to the legislative 
body in order to be brought into harmony with the constitution 
by legislation. 



WUson's 

"thirteenth 

point" 



The Danzig 
corridor 



Contro- 
versies at 
the Peace 
Conference 



CHAPTER XVII 
THE FREE CITY OF DANZIG 

1. HISTORICAL NOTE 

It was the ambition of the Poles that the independent 
Polish State to be erected at the Peace Conference should 
include more than "the territories inhabited by indisput- 
ably Polish populations." President Wilson's " thirteenth 
point" stipulated that the new state "should be assured a 
free and secure access to the sea, " and it was the hope of 
the Poles that they would be allotted the whole of a wide 
corridor along the Vistula that the Germans had for many 
years been attempting to colonize. 

This corridor had been so completely Germanized that 
a strip only fifty miles across could be given to Poland on 
ethnic grounds. In Danzig, the coastal end of the cor- 
ridor, the Polish population had been reduced until the 
Poles numbered but 10 per cent, of the total of 170,000.^ 
The solution of the Peace Conference, therefore, was to 
create a Free City under the protection of the League of 
Nations. This was in part a return to the status that 
Danzig had enjoyed from 1454 to 1793. It was then a 
free republic, voluntarily united to Poland and under 
Pohsh sovereignty. It had autonomy in local affairs, 
although Poland had the right to defend it from attack, 
and, on "great occasions," the City was represented in 
the Polish diet. 

The decision of the Peace Conference was reached only 
after the Conference had considered alternative proposals. 
The Commission on Polish affairs, appointed by the Su- 



^Bo'svinan, The New World Problems, p. 337. 

426 



CITY OF DANZIG 



427 



preme Council, proposed that the corridor to the Baltic 
should include Danzig and a narrow belt of German- 
speaking territory around Marienwerder, on the east bank 
of the Vistula. In the case of Danzig, the Commission 
thought that "the only clean-cut solution of the problem 
was to annex the city outright to Poland." Mr. Lloyd 
George, however, was dissatisfied. He believed that 
"with the frontiers proposed the number of Germans to 
be incorporated in Poland was dangerously large, and 
ought, if ever possible, to be reduced. As a result of a 
first intervention on his part the Supreme Council de- 
cided that the Marienwerder district should not be trans- 
ferred to Poland outright, but should also be subjected to 
a plebiscite. 

"Soon after, the British Prime Minister proposed a 
second change, of much greater consequence to the Poles, 
in the matter of Danzig. President Wilson was persuaded 
to agree to his suggestions; and M. Clemenceau, quite 
certainly against his own inclinations, was induced to 
acquiesce. The upshot was an entirely new plan, which 
was intended to insure Poland's economic interests in the 
port of Danzig and at the same time to avoid the incon- 
venience of annexing that German-speaking city to 
Poland. According to this plan, Danzig and the small 
adjacent district were to form a free city under the pro- 
tection of the League of Nations."^ 

The new semi-independent state is one of the most in- 
teresting political creations of the Peace Treaty. It is one 
of the few cases in which the Peace Conference assumed 
responsibility for passing on constitutions and providing 
governmental tutelage.^ By Article 100 of the Peace 
Treaty, "Germany renounces in favor of the Principal 
Allied and Associated Powers all rights and title over the 



Provisions 
of Peace 
Treaty in re 
Danzig 



iR. H. Lord, "Poland," in House and Seymour, What Really Happened at 
Paris, p. 79 (New York, 1921), 

*See above, p. 5, note 1; p. 83, note 2. 



428 NEW CONSTITUTIONS OF EUROPE 

territory comprised within" certain specified limits. 
This territory and the city of Danzig are estabhshed as a 
Free City, "under the protection of the League of Na- 
tions".^ With regard to the government of the city the 
Treaty provided: 

A constitution for the Free City of Danzig shall be drawn up 
by the duly appointed representatives of the Free City in agree- 
ment with a High Commissioner to be appointed by the League 
of Nations. This constitution shall be placed under the guaran- 
tee of the League of Nations. 

The High Commissioner will also be entrusted with the duty 
of dealing in the first instance with all differences arising between 
Poland and the Free City of Danzig in regard to this Treaty or 
any arrangements or agreements made thereunder. 

The High Commissioner shall reside at Danzig.^ 

Subsequent provisions of the treaty dealt with Poland's 
access to the sea; with the conduct of Danzig's foreign 
relations by Poland ; and with such matters as nationality, 
property, and finance.^ 
Constituent A constituent assembly, composed of one hundred and 

Assembly of twenty members, was elected in May, 1920, on a basis of 
universal suffrage. The assembly consisted "of sixty- 
three Conservatives and Moderates, ten Liberals, fifty 
Socialists, and seven Poles. Its election marked a sharp 

lArticle 102. 
'Article 103. 

'Germany, in her observations dated May 29, 1913, objected to "the cession 
of the purely German Hanseatic to^^Ti of Danzig and of its surroundings, which 
are likewise purely German, as demanded in Articles 100 to 108" of the Treaty. 
"Even the Poles do not seriously deny that Danzig has always been German in 
character. The attempt to make Danzig a free city and to surrender its means 
of communication and the representation of its rights abroad to the Polish State 
would lead to \nolent opposition and to a continuous state of war in the East. 
And withal, economic measures have been taken to make ail communication 
between Danzig and Germany extremely difficiilt — evidently with the purpose 
of making this purely German territory Polish in the course of time by means of 
economic pressure." 

The Allies replied that "the proposed settlement for Danzig . . . will 
preserve the character which Danzig held during many centuries and, indeed, 
until forcibly and contrary to the will of the inhabitants it was annexed to the 
Prussian State." Temperley, Ed., A History of the Peace Conference at Paris, 
Vol. n. pp. 291-292 (London, 1920). 



of 1920 



CITY OF DANZIG 429 

swing from Socialism to German nationalism, two-thirds 
of the Poles keeping away entirely, and its temper was on 
the whole conservative. Yet the document finally adopted 
by a vote of sixty-eight Conservatives and Liberals to 
forty-four Socialists and Poles would undoubtedly in this 
country be held dangerously radical."^ The constitution Constitution 
was adopted on August 11, 1920, and the Executive Coun- 
cil of the League of Nations, at a meeting on November 
17, 1920, gave the document its approval. The most se- 
rious objection of the Council was to the use (unauthorized 
by the Peace Treaty) of the word "Hanseatic" in the legal 
title of the city.^ In many of its articles the Danzig 
constitution makes a verbatim copy of articles of the 
German constitution.^ Naturally, however, there are 
many differences in the forms of government of the two 
states. 

2. CONSTITUTION OF THE FREE AND HANSEATIC 
CITY OF DANZIG^ 

PART I 

Organization of the State 

I. General 

Article 1. The City of Danzig and the territory attached 
thereto shall form a Free State under the name of the "Free 
and Hanseatic City of Danzig." 

^Edwin Bjorkman, "The Constitution of a City State," The Freeman, Decem- 
ber 15, 1920. 

'The text of the constitution used is that of the official translation prepared 
for the Executive Council of the League of Nations, Document du Conseil, 81 A. 
The affairs of Danzig have been frequently before the League of Nations. For 
the details up to January, 1922, see Sociefe des Nations: Journal Officiel, III' 
Annee, No. 3, p. 241, and references (March, 1922). 

'The English versions of such articles here given are not always identical, for 
the reason that it has seemed best not to attempt to modify the official (League 
of Nations) translation of the Danzig constitution, so as to make it conform to 
the unofficial translation of the German constitution, nor vice versa. 

*See below for the resolution of the Council of the League of Nations with 
reference to the use of the word "Hanseatic." 



430 NEW CONSTITUTIONS OF EUROPE 

Art. 2. The arms of the state shall be : On a red shield, two 
silver crosses one above the other, above which is placed a 
golden crown. 

The state flag and the mercantile flag shall be on a red ground : 
in the first third, counting from the mast, and parallel thereto, 
two white crosses, one above the other, and surmounted by a 
yellow crown. 

Art. 3. The sovereign power in the state resides in the people. 

Art. 4. The official language shall be German. 

Art. 5. The Polish speaking portion of the population shall 
have its free racial development both by law and the adminis- 
tration, in particular as regards the use of its mother tongue 
in the schools and in the internal Administration, as well as 
in the administration of justice. Details will be determined 
by law. 

n. Popular Assembly 

Art. 6. The Popular Assembly shall consist of one hundred 
and twenty members. 

Art. 7. The members of the Popular Assembly shall be rep