[Footnote 480: "During the electoral period, circulars and platforms signed by the candidates, electoral placards and manifestoes signed by one or more voters, may, after being deposited with the public prosecutor, be posted and distributed without previous authorization." Organic Law of November 30, 1875, Art. 3.]

*346. The Conduct of Parliamentary Elections.*—The electoral (p. 319) process is simple and inexpensive. Voting is by secret ballot, and the balloting lasts one day only. As a rule, the polling takes place in the mairie, or municipal building, of the commune, under the immediate supervision of an electoral bureau consisting of a president (usually the mayor), four assessors, and a secretary. The state does not provide ballot-papers, but one or more of the candidates may be depended upon to supply the deficiency. The count is public and the result is announced without delay. If it is found that no candidate within the district has polled an absolute majority of the votes cast, and at the same time a fourth of the number which the registered voters of the district are legally capable of casting, a second balloting (the so-called ballottage) is ordered for one week from the ensuing Sunday. No one of the candidates voted for drops out of the contest, unless by voluntary withdrawal; new candidates, at even so late a day, may enter the race; and whoever, at the second balloting, secures a simple plurality is declared elected. By observers generally it is considered that the principle of the second ballot, in the form in which it is applied in France, possesses no very decisive value. Through a variety of agencies the central government is accustomed to exert substantial influence in parliamentary elections; but all of the more important political groups have profited at one time or another by the practice, and there is to-day a very general acquiescence in it, save on the part of unsuccessful candidates whose prospects have been injured by it.

IV. THE PROBLEM OF ELECTORAL REFORM

*347. Scrutin de liste and scrutin d'arrondissement.*—Within recent years there has arisen, especially among the Republicans and Socialists, an insistent demand for a thoroughgoing reform of the electoral process. Those who criticise the present system are far from agreed as to precisely what would be more desirable, but, in general, there are two preponderating programmes. One of these calls simply for abandonment of the scrutin d'arrondissement and a return to the scrutin de liste. The other involves both a return to the scrutin de liste and the adoption of a scheme of proportional representation. The arrondissement, many maintain, is too small to be made to serve satisfactorily as an electoral unit. Within a sphere so restricted the larger interests of the nation are in danger of being lost to view and political life is prone to be reduced to a wearisome round of compromise, demagogy, and trivialities. If, it is contended, all deputies (p. 320) from a department were to be elected on a single ticket, the elector would value his privilege more highly, the candidate would be in a position to make a more dignified campaign, and issues which are national in their scope would less frequently be obscured by questions and interests of a petty and purely local character. Professor Duguit, of the University of Bordeaux, who is one of the abler exponents of this proposed reform, contends (1) that the scheme of scrutin de liste harmonizes better than does that of scrutin d'arrondissement with the fundamental theory of representation in France, which is that the deputies who go to Paris do so as representatives of the nation as a whole, not of a single locality; (2) that the scrutin d'arrondissement facilitates corruption through the temptation which it affords candidates to make to voters promises of favors, appointments, and decorations, and (3) that the prevailing system augments materially the more or less questionable influence which the Government is able to bring to bear in the election of deputies.[481] It does not appear that in the period 1885-1889 when the scrutin de liste was in operation the very desirable ends now expected to be attained by a restoration of it were realized; indeed the system lent itself more readily to the menacing operations of the ambitious Boulanger than the scrutin d'arrondissement could possibly have done. It is but fair, however, to observe that the trial of the system was very brief and that it fell in a period of unusual political unsettlement.

[Footnote 481: L. Duguit, Traite de droit constitutionnel, I., 375-376.]

*348. Proportional Representation.*—In the judgment of many reformers a simple enlarging of the electoral unit, however desirable in itself, would be by no means adequate to place the national parliament upon a thoroughly satisfactory basis. There is in France a growing demand for the adoption of some scheme whereby minorities within the several departments shall become entitled to a proportionate voice in the Chamber at Paris. And hence a second programme of reform is that which calls not merely for the scrutin de liste, but also for proportional representation. Within the past two decades the spread of the proportional representation idea in Europe has been rapid. Beginning in 1891, the device has been adopted by one after another of the Swiss cantons, until now it is in use in some measure in upwards of half of them. Since 1899 Belgium has employed it in the election of all members of both chambers of her parliament. In 1906 it was adopted by Finland and by the German state of Wuerttemberg. In 1908 Denmark, in which country the system has been employed in the election of members of the upper chamber since 1867, extended its use to elections in (p. 321) the municipalities.[482] In 1907 an act of the Swedish parliament (confirmed after a general election in 1909) applied it to elections for both legislative chambers, all parliamentary committees, and provincial and town councils. In France there was organized in 1909, under the leadership of M. Charles Benoist, a Proportional Representation League by which there has been carried on in recent years a very vigorous and promising propaganda. The principal arguments employed by the advocates of the proposed reform are (1) that the effect of its adoption would be greatly to increase the aggregate vote cast in parliamentary elections, since electors belonging to minority parties would be assured of actual representation; (2) that it would no longer be possible, as is now regularly the case, for the number of voters unrepresented by deputies of their own political faith to be in excess of the number of electors so represented;[483] and (3) that a parliament in which the various parties are represented in proportion to their voting strength can be depended upon to know and to execute the will of the nation with more precision than can a legislative body elected after the principle of the majority system.[484]

[Footnote 482: The first English-speaking state to adopt the system was Tasmania, where, after being in partial operation in 1896-1901, it was brought fully into effect in 1907. By an electoral law of 1900 Japan adopted it for the election of the members of her House of Commons. The plan was put in operation in Cuba April 1, 1908, and was adopted in Oregon by a referendum of June 1, 1908.]

[Footnote 483: It is the assertion of M. Benoist that this situation has existed unbrokenly since 1881. An interesting fact cited is that the notable Separation Law of 1905 was adopted in the Chamber by the votes of 341 deputies who represented in the aggregate but 2,647,315 electors in a national total of 10,967,000.]

[Footnote 484: Duguit, op. cit., argues forcefully in behalf of the proposed change. For adverse views, cogently stated by an equally eminent French authority, see A. Esmein, Droit Constitutionnel (5th ed., Paris, 1911), 253.]

*349. The Government and Reform.*—During upwards of a decade the successive ministries of France have been committed to the cause of electoral reform. In March, 1907, a special committee of the Chamber of Deputies (the Commission du Suffrage Universel), appointed to consider the various bills which had been submitted upon the subject, reported a scheme of proportional representation whereby it was believed certain disadvantages inherent in the "list system" of Belgium might be obviated. Elections were to be by scrutin de liste and the elector was to be allowed to cast as many votes as there were places to be filled and to concentrate as many of these votes as he might choose upon a single candidate.[485] In November, 1909, the Chamber of Deputies passed a resolution favoring the establishment (p. 322) of both scrutin de liste and proportional representation, but no law upon the subject was enacted, and at the elections of April-May, 1910, the preponderating issue was unquestionably that of electoral reform. According to a tabulation undertaken by the Ministry of the Interior, of the 597 deputies chosen at this time 94 had not declared themselves on electoral reform; 35 were in favor of no change from the existing system; 32 were in favor of a slightly modified scrutin d'arrondissement; 64 were partisans of the scrutin de liste pure and simple; 272 were on record in favor of the scrutin de liste combined with proportional representation; and 88 were known to be in favor of electoral reform, though not committed to any particular programme. The majority favoring change of some kind was thus notably large.

[Footnote 485: The text of the proposed measure, in English translation, will be found in J. H. Humphreys, Proportional Representation (London, 1911), 382-385.]

*350. The Briand Programme.*—June 30, 1910, the Briand ministry brought forward a plan which was intended as an alternative to the proposals of the Universal Suffrage Committee. The essential features of it were: (1) a return to scrutin de liste, with the department as the electoral area, save that a department entitled to more than fifteen deputies should, for electoral purposes, be divided, and one entitled to fewer than four should be united with another; (2) an allotment of one deputy to every 70,000 inhabitants, or major fraction thereof; (3) the division of the total number of electors on the register within a department by the number of deputies to which the department should be entitled, the quotient to supply the means by which to determine the number of deputies returned to the Chamber from each competing ticket; (4) the determination of this number by a division of the foregoing quotient into the average number of votes obtained by the candidates on each competing ticket, thus introducing the element of proportional representation; (5) the making up of tickets in each department from candidates nominated by one hundred electors; (6) the restriction of each elector to a vote for but a single ticket; and (7) an extension of the life of the Chamber from four to six years, one-third of the members to be chosen biennially. In the ministerial declaration accompanying the announcement of this scheme Premier Briand declared that the effect of the scrutin d'arrondissement had been to narrow the political horizon of the deputies; that the electoral area must be broadened so that the interests of the nation may be made to predominate over those of the district; and that, while in a democracy the majority must rule, the Government was favorable to proportional representation in so far as the adoption of that principle can prevent the suppression of really important minorities.

*351. The Electoral Reform Bill of 1912.*—In February, 1911, while the Briand Electoral Reform Bill was pending, there occurred a change (p. 323) of ministries. The Monis government which succeeded maintained, during its brief tenure (March-June, 1911), the sympathetic attitude which had been exhibited by its predecessor, and at the beginning of the period the Commission du Suffrage Universel laid before the Chamber the draft of a new bill whereby the details of the proportional plan were brought back into closer accord with those of the Belgian system. During the period of the Caillaux ministry (June, 1911, to January, 1912) there was continued discussion, but meager progress. The Poincare ministry, established at the beginning of 1912, declared that the nation had expressed forcefully its desire for far-reaching reform and promised that, in pursuance of the work already accomplished by the parliamentary commission, it would take steps to carry a measure of reform which should "secure a more exact representation for political parties and lend those who are elected the freedom that is required for the subordination of local interests in all cases to the national interest." During the earlier months of 1912 consideration of the subject was pressed in the Chamber and July 10 the whole of the Government's Electoral Reform Bill was adopted by a vote of 339 to 217. At the date of writing (October, 1912) the measure is pending in the Senate. The bill as passed in the Chamber comprises essentially the Briand proposals of 1910.[486] Through the revival of scrutin de liste, with a large department or a group of small ones as the electoral area, and with the device of representation of minorities added, (p. 324) the measure, in the event of its probable final enactment, will largely transform the conditions under which the parliamentary elections of to-day are conducted.

[Footnote 486: The most systematic account of the electoral franchise in France since 1789 is A. Tecklenburg, Die Entwickelung des Wahlrechts in Frankreich seit 1789 (Tuebingen, 1911). The French electoral system is described at length in E. Pierre, Code des elections politiques (Paris, 1893); Chaute-Grellet, Traite des elections, 2 vols. (Paris, 1897); M. Block, Dictionnaire de l'administration francaise (5th ed., Paris, 1905), I., 1208-1244. The literature of the subject of electoral reform is very extensive. Mention may be made of C. Benoist, Pour la reforme electorale (Paris, 1908); J. L. Chardon, La reforme electorale en France (Paris, 1910); J. L. Breton, La reforme electorale (Paris, 1910); C. Francois, La representation des interets dans les corps elus (Paris, 1900); F. Faure, La legislature qui finit et la reforme electorale, in Revue Politique et Parlementaire, Dec. 10, 1909; Marion, Comment faire la reforme electorale; ibid., Feb. 10 and March 10, 1910; M. Deslanders, La reforme electorale, ibid., July 10, 1910; A. Varenne, La reforme electorale d'abord, ibid., Nov. 10, 1910; G. Lachapelle, La discussion du projet de reforme electorale, ibid., May 10, 1912; F. Faure, Le vote de la reforme electorale, ibid., Aug. 10, 1912 (contains the text of the Electoral Law); L. Milhac, Les partis politiques francais dans leur programme et devant le suffrage, in Annales des Sciences Politiques, July 15, 1910; G. Scelle, La representation politique, in Revue du Droit Public, July-Sept., 1911; L. Marin, Le vote personnel, in La Grande Revue, March 25, 1911; and G. Trouillot, La reforme electorale au Senat, ibid., Sept. 25, 1912. The text of the bill of 1912 is to be found also in Revue du Droit Public, July-Sept., 1912. On the question of proportional representation see G. Tronqual, La representation proportionnelle devant le parlement francais (Poitiers, 1910); F. Lepine, La representation proportionnelle et sa solution (Paris, 1911); N. Saripolos, La democratie et l'election proportionnelle (Paris, 1900); G. Lachapelle, La representation proportionnelle (Paris, 1910); ibid., Representation proportionnelle, in Revue de Paris, Nov. 15, 1910; ibid., L'Application de la representation proportionnelle, in Revue Politique et Parlementaire, Dec. 10, 1910. See also Anon., La sophistication du suffrage universel, in Annales des Sciences Politiques, July, 1909, and May, 1910; E. Zevort, La France sous le regime du suffrage universel (Paris, 1894). The subject of proportional representation in France is fully discussed in a Report of the British Royal Commission on Electoral Systems (1910). Report, Cd. 5,163; Evidence, Cd. 5,352.]



CHAPTER XVII (p. 325)

PARLIAMENTARY PROCEDURE—POLITICAL PARTIES

I. ORGANIZATION AND WORKINGS OF THE CHAMBERS

*352. Sessions.*—By the constitutional law of July 16, 1875, it is required that the Chamber of Deputies and the Senate shall assemble annually on the second Tuesday of January, unless convened at an earlier date by the President of the Republic, and that they shall continue in session through at least five months of each year. The President may convene an extraordinary session, and is obligated to do so if at any time during a recess an absolute majority of both chambers request it. The President may adjourn the chambers, but not more than twice during the same session, and never to exceed one month. The sessions of the Deputies are held in the Palais Bourbon, situated in the immediate neighborhood of a group of ministerial buildings at the end of the Boulevard St. Germain, directly across the Seine from the Place de la Concorde; those of the Senate, in the Palais du Luxembourg. The sittings are by law required to be public, though there is provision for occasional secret sessions. Since January 1, 1907, deputies have received 15,000 francs a year (increased by law of November, 1906, from 9,000); and they are entitled, on payment of a nominal sum, to travel free on all French railways. The emoluments of senators are identical with those of deputies.

*353. Officers, Bureaus, and Committees.*—The presiding officer of the Deputies is known as the president. He is elected by the Chamber and, far from being a mere moderator, as is the Speaker of the British House of Commons, he is ordinarily an aggressive party man, not indisposed to quit the chair to participate in debate, and therefore bearing an interesting resemblance to the Speaker of the American House of Representatives. Besides the president, there are four vice-presidents, eight secretaries, and three questors, all chosen by the Chamber. The vice-presidents replace the president upon occasion; the secretaries (of whom half must always be on duty when the Chamber is in session) supervise the records of the meetings and count the votes when there is a division; the questors have in charge the Chamber's finances. Collectively, this group of sixteen officials comprises what is known as the "bureau" of the Chamber. It manages (p. 326) the business of the body during a session and, if need be, acts in its name during a recess.

Every month during the course of a session the entire membership of the Chamber is divided by lot into eleven other bureaus of equal size. These bureaus meet from time to time separately to examine the credentials of members, to give formal consideration to bills which have not yet been referred to a committee, and, most important of all, to select one of their number to serve on each of the committees of the Chamber. In the case of very important committees, the bureaus may be instructed by the Chamber to designate two members, or even three, each. Thus, the Budget Committee contains three representatives of each bureau. This committee and another constituted to audit the accounts of the Government are created for a year. Others serve a single month. Theoretically, indeed, every measure is referred to a committee constituted specifically for the purpose; but practically the consequence of such a procedure would be confusion so gross that the greater committees, as those on labor, railways, and the army, are allowed to acquire some substantial measure of permanence. Committee positions are quite generally objects of barter on the part of party groups and leaders.[487]

[Footnote 487: A. de la Berge, Les grands comites parlementaires, in Revue des Deux Mondes, Dec. 1, 1889.]

*354. Procedure.*—Immediately upon assembling, each of the chambers validates the elections of its own members, chooses its bureau of president, vice-presidents, secretaries, and questors, and adopts its own rules of procedure. At an early date the premier communicates orally a "ministerial declaration," in which are outlined the policies to which the Government is committed; and certain of the measures therein proposed are likely to take precedence in the ensuing deliberations. The hall in which each body sits is semi-circular, with as many seats and desks as there are members to be accommodated. In the centre stands a raised arm-chair for the use of the president, and in front of it is a platform, or "tribune," which every member who desires to speak is required to mount. On either side of the tribune are stationed stenographers, whose reports of the proceedings are printed each morning in the Journal Officiel. The first tier of seats in the semi-circle, facing the tribune, is reserved for the Government, i.e., the members of the ministry; behind are ranged the remaining members of the Chamber, with the radicals on the president's left and the conservatives on his right.

Of the bureaus into which, at the beginning of each month, the members of each chamber are divided, there are, as has been said, eleven in the Deputies; in the Senate there are nine. When a bill is (p. 327) introduced it is referred first of all to these bureaus, each of which designates one or more commissioners, who, acting together as a committee, are expected to make a careful examination of the measure. The report of this committee is printed and distributed, whereupon general discussion begins in the chamber. Every measure must pass two readings in each chamber, with an interval of five days, unless otherwise ordered by a majority vote. A member wishing to take part in the debate indicates his desire by inscribing his name on lists kept by the secretaries. On the motion of any member, the closure may be applied and a vote ordered. The division may be taken by a show of hands, by rising, or by a ballot in which a white voting paper denotes an affirmative, and a blue one a negative, vote. Voting by proxy, long permitted, has been recently abolished. No decision is valid unless an absolute majority of the members (151 in the Senate and 299 in the Deputies) has participated in the vote. In the upper branch proceedings are apt to be slow and dignified; in the lower they are more animated, and not infrequently tempestuous. The duty of keeping order at the sittings falls to the president. In aggravated cases he is empowered, with the consent of a majority of the chamber, to administer a reprimand carrying with it temporary exclusion from the sessions.[488]

[Footnote 488: A. P. Usher, Procedure in the French Chamber of Deputies, in Political Science Quarterly, Sept., 1906; J. S. Crawford, A Day in the Chamber of Deputies, in Gunton's Magazine, Oct., 1901; M. R. Bonnard, Les modifications du reglement de la Chambre des Deputes, in Revue du Droit Public, Oct.-Dec., 1911. The standard treatise on French parliamentary procedure is J. Poudra et E. Pierre, Traite pratique de droit parlementaire, 8 vols. (Versailles, 1878-1880.)]

*355. Powers and Functions: the National Assembly.*—Speaking broadly, the functions of the French chambers are three-fold—constituent, elective, and legislative. The first two are required to be exercised by the two houses conjointly. By the constitutional law of February 25, 1875, there is provided the only means whereby the constitution of the Republic may be amended. "The chambers," it is stipulated, "shall have the right by separate resolutions, taken in each by an absolute majority of votes, either upon their own initiative or upon the request of the President of the Republic, to declare a revision of the constitutional laws necessary. After each of the two chambers shall have come to this decision, they shall meet together in National Assembly to proceed with the revision. The acts affecting revision of the constitutional laws, in whole or in part, shall be passed by an absolute majority of the members composing the National Assembly."[489] The power of constitutional amendment is therefore vested absolutely in the parliamentary chambers, under the requirement simply that (p. 328) it be exercised in joint session. The only limitation that has been imposed on parliamentary omnipotence in this direction is a clause adopted in an amendment of August 13, 1884, to the effect that "the republican form of government shall not be made the subject of a proposed revision."[490] As in the British system, constituent and legislative powers are lodged in the same body of men; and not merely the powers of constitution-making, but the exclusive right to pronounce upon the constitutionality or unconstitutionally of legislation. The principal difference is that, whereas the British Parliament exercises the sum total of its powers in an unvarying manner, the French, when acting in its constituent capacity, follows a specially designed procedure.

[Footnote 489: Art. 8. Dodd, Modern Constitutions, I., 288.]

[Footnote 490: Art. 8. Dodd, Modern Constitutions, I., 294.]

One other function the two chambers sitting conjointly possess, i.e., that of electing the President of the Republic. Under normal conditions, the chambers are called together in National Assembly to choose a President one month or more before the expiration of the seven-year presidential term. In the event of vacancy by death, by resignation, or by reason of any other unanticipated circumstance, the meeting of the Assembly takes place forthwith, without summons.[491] Election is by ballot, and by absolute majority of the members. All meetings of the National Assembly are held, not in Paris, but in the old royal palace at Versailles, which indeed was the sole seat of the present republican government until 1879. No elective session may exceed in length the five months allotted to an ordinary legislative session.

[Footnote 491: Law of July 16, 1875, art. 3. Dodd, Modern Constitutions, I., 291.]

*356. Legislation and Special Powers.*—The two chambers possess concurrent powers in all that pertains to the initiation, the enactment, and the amending of laws, save that money bills must be introduced in and passed by the Chamber of Deputies before being considered in the upper branch. Except for this limitation, measures may be presented in either house, by the ministers in the name of the President, or by private members. The vast fabric of Napoleonic law which has survived to the present day in France has narrowed perceptibly the range of legislative activity under the Republic. During the first generation after 1871 few great statutes were enacted, save those of a constitutional character. In our own day, however, the phenomenal expansion of social and industrial legislation, which has been a striking feature of the public life of most European nations, has imparted a new vigor and productiveness to French parliamentary activity.

Each of the chambers possesses certain functions peculiar to itself. Aside from the initiation of money bills, the principal such function of the Deputies is the bringing of charges of impeachment against (p. 329) the President or ministers. The Senate possesses the exclusive power to try cases of impeachment. It is given the right to assent or to withhold its assent when the President proposes to dissolve the Chamber of Deputies before the expiration of its term. And by decree of the President, issued in the Council of Ministers, it may be constituted a court of justice to try any person accused of attempts upon the safety of the state.[492]

[Footnote 492: Y. Guyot, Relations between the French Senate and Chamber of Deputies, in Contemporary Review, Feb., 1910.]

II. POLITICAL PARTIES SINCE 1871

*357. Republicans and Conservatives.*—In its larger aspects the alignment of political parties in France to-day dates from the middle of the nineteenth century. In the National Assembly of 1848—the first representative body elected in France by direct universal suffrage—the line was sharply drawn between the republicans of the Left, who wished to maintain the Republic and with it a liberal measure of democracy, and the reactionaries of the Right, who began by insisting upon a restoration of clerical privilege and bourgeois rule and ended, in the days of the Legislative Assembly, by clamoring for a restoration of monarchy itself. After the coup d'etat of 1851 both groups were silenced, though even in the politically stagnant era of the early Empire they did not lose altogether their identity. With the revival, however, after 1860, of a vigorous political life the two worked together, and with success, to accomplish the overthrow of the personal government of Napoleon III. Upon the collapse of the Empire in 1870 the original cleavage reappeared. The National Assembly elected in 1871 was divided broadly into Republicans and Conservatives (which name gradually replaced that of Reactionaries), and during the five years covered by the life of this extremely important body these two great groups struggled continuously over the supreme question of the day, i.e., the style of government which should be adopted permanently for France. Each of the groups comprised a variety of elements. To the Republicans belonged the Radical Extreme Left of Gambetta, the Left of Grevy, Freycinct, and Loubet, and the Centre Left of Thiers and Jules Simon. To the Conservatives belonged the Legitimate Extreme Right, an Orleanist Centre Right, and, eventually, the Imperialists. Following the definite establishment, in 1875, of the republican constitution, the lines by which these various elements had been marked off grew less distinct, and Republicans and Conservatives acquired in each case a more homogeneous character.

*358. Rise of the Radicals.*—After the first election under the (p. 330) new constitution—that of 1876—the Senate remained in the control of the Conservatives, but the Chamber of Deputies was found to contain a Republican majority of more than two to one. From that day until the present the Republican ascendancy in the lower house has been maintained uninterruptedly; and since 1882 there has been likewise always a Republican majority in the Senate. It is to be observed, of course, that Republican control in both chambers has meant regularly not the absolute dominance of a single compact party group, but the preponderance of a coalition of two or more groups broadly to be described as "republican." During the early eighties there sprang up a flourishing group which, reviving the original programme of Gambetta, assumed the name Radical, and in the elections of 1885 this group acquired such a quota of seats in the Chamber (150) as to render it impossible for the Republicans alone to retain control. Thereafter there were three principal party groups—the Conservatives and the two republican groups, the Republicans proper and the Radicals. No one of the three being sufficiently strong to obtain a majority which would enable it to rule alone, the politics of a long succession of years turned upon the adoption of one or the other of two lines of tactics—the coalition of the two republican divisions to the end that they might rule as against a Conservative minority (the so-called policy of "republican concentration"), and the allying of one of these groups with the Right against the other Republican group (spoken of commonly as a "pacification"). The first "concentration" ministry was that of Brisson, formed in March, 1885; the first "pacification" ministry was that of Rouvier, formed in 1887. In the middle of the nineties some attempts were made to create and maintain homogeneous ministries. The Bourgeois ministry of 1895-1896 was composed entirely of Radicals and the Meline ministry of 1896-1898 of Moderate Republicans. But at the elections of 1898 the Republican position in the Chamber broke down and it was necessary to return, with the Dupuy ministry, to the policy of concentration.

Meanwhile, in the early nineties, from the Conservative and Republican extremes respectively had been detached two new party groups. From the ranks of the Conservatives had sprung a body of Catholics who, under papal injunction, had declared their purpose to rally to the support of the Republicans; whence they acquired the designation of the "Rallies." And from the Radical party had broken off a body of socialists of such consequence that in the elections of 1893 it succeeded in carrying fifty seats.

*359. The Bloc.*—A new era in the history of French political (p. 331) parties was marked by the elections of May, 1898. Some 250 seats, and with them the effectual control of the Chamber, were acquired by the Radicals, the Socialists, and an intermediary group of Radical-Socialists. The Moderate Republicans, to whom had been given recently the name of Progressives, were reduced to 200; while the Right retained but 100. The Socialists alone polled nearly twenty per cent of the total popular vote. The remarkable agitation by which the Dreyfus affair was attended had the effect of consolidating further the parties of the Left, and the bloc which resulted not only has subsisted steadily from that day to the present but has controlled very largely the policies of the government. The first conspicuous leader and spokesman of the coalition was Waldeck-Rousseau, premier from 1899 to 1902, and its first great achievement was the separation of church and state, accomplished through the means of the Law of Associations of July 1, 1901, the abrogation of the Concordat, December 9, 1905, and the law of January 2, 1907, restricting further the privileges of the Roman Catholic Church in France. A socialist now appeared for the first time in the cabinet. At the elections of April, 1902, the policies of the Government were vindicated by the return of 321 avowed "ministerialists" and of but 268 representatives of the opposition.

*360. The Elections of 1906.*—June 3, 1902, the longest-lived ministry since the Third Republic was established was brought to an end by the voluntary retirement of Waldeck-Rousseau. The new premier, Combes, was a member of the Radical party, and the anti-clerical, radical policies of the preceding government were maintained throughout the ensuing two and a half years, as also they were during the premiership of Rouvier (1905-1906). In March, 1906, a new ministry, in which Clemenceau was actual chief, was formed with the Radical Sarrien as premier, and at the elections which came two months later the groups of the Left won another signal victory. Prior to the balloting the majority in support of the radical policy of the Government bloc could muster in the Chamber some 340 votes; afterwards, it could muster at least 400. The Right retained its numerical strength (about 130), but the extreme Left made decided gains at the expense of the moderates, or Progressives. The number of Progressive seats, 120 prior to the election, was reduced by half; while the aggregate of Socialist and Radical-Socialist seats rose to 230. On all sides Moderate Republicanism fell before the assaults of Socialism. At the same time it was demonstrated unmistakably that the anti-clerical measures of the recent governments were in substantial accord with the will (p. 332) of the nation. October 25, 1906, Clemenceau assumed the premiership.

*361. The Elections of 1910.*—The Clemenceau ministry, which survived until July, 1909, adopted a programme which was more frankly socialistic than was that of any of its predecessors. It added to the system of state-owned railways the Great Western Line; it inaugurated a graduated income tax and put the measure in the way of enactment at the hand of the Chamber; it carried fresh and more rigorous legislation in hostility to clericalism; and, in general, it gave free expression to the unquestionable trend of the France of to-day away from the individualism of the Revolutionary period in the direction of the ideals of collectivism. The Briand ministry by which it was succeeded followed in the same lines, three of its members, indeed, being active socialists. Prior to the elections of April-May, 1910, there took place some readjustment of political forces, but, on the whole, no change of large importance. The bloc, however, more than once showed signs of breaking up, and the majority of the party groups arrived at the electoral season devoid of harmony and paralyzed by uncertainty of policy. The Radicals were divided upon the question of the income-tax; the Socialists, upon the question of the party's attitude toward trade-unions; and all parties, upon the issue of proportional representation. That the voters were no less bewildered than were the party leaders appeared from the fact that in 231 constituencies—almost an unprecedented number[493]—second ballotings were required. With the issues so confused, the results could hardly prove of large significance. The lines which separate party groups to-day in France are not infrequently both ill-defined and shifting, with the consequence that it is not possible to express party strength by exact numbers, as may be done in the case of the parties of Great Britain or of the United States. A deputy may even belong to two groups at one time. The composition of the Chamber following the elections of 1910 can be stated, therefore, only approximately. Composing the Right were (1) the Right proper, 19; (2) the Action Liberale Populaire—organized originally to combat the radicalism of Waldeck-Rousseau, 34; (3) the Progressives, now to be identified with the Right, 76—a total of 129. Identified with the Left were (1) the Republicans, 73; (2) the Radicals, 112; and (3) the Radical-Socialists, 149—a total of 334. Comprising the Extreme Left were the Socialists (Independent 30; Unified, 75), aggregating 105. Finally, of Independents there were upwards of 20. The continued preponderance of the Left was assured, although to prolong their mastery of the situation the Radicals and Radical-Socialists fell under the (p. 333) necessity of securing the support of either the Republicans or the Independent Socialists.[494]

[Footnote 493: Absolutely so, save for the scrutin de liste election of 1885.]

[Footnote 494: The political history of the period since the elections of 1910 has been remarkable by reason chiefly of the absorption of public attention by the issues of electoral reform and labor legislation. Embarrassed by interpellations with reference to its ecclesiastical policy, the Briand ministry (reconstituted in November, 1910) retired in February, 1911. The Monis government which succeeded lacked coherence, as also did the ministry of Caillaux (June, 1911 to January, 1912). The cardinal achievement of the Poincare ministry has been the carrying of the Electoral Reform Bill of 1912 in the lower chamber. See p. 323.]

*362. Changes since 1871.*—"The political history of France since the beginning of the Republic," says a scholarly French observer, "presents, instead of an alternation between two parties of opposing programmes, like those of Belgium or England, a continual evolution along one line, the constant growth of the strength of parties which represent the democratic, anti-clerical tendency."[495] The fundamental division of Conservative and Republican persists, but both of these terms have long since lost their original definiteness of meaning. The Conservatives have ceased, in large part, to be "reactionaries." Few of them are even royalists, and the old distinction of Legitimist, Orleanist, and Bonapartist has disappeared entirely. The Right is essentially "republican," as is evidenced by the further fact that the majority of its members in the Chamber are Progressives, whose forerunners composed the real Republican party of a generation ago. The Republican groups of to-day comprise simply those numerous and formidable political elements which are more republican—that is to say, more radical—than are the adherents of the Right. Among themselves, however, they represent a very wide gradation of radicalism.

[Footnote 495: C. Seignobos, The Political Parties of France, in International Monthly, Aug., 1901, 155.]

*363. French Socialism.*—The history of socialism in France since 1871 has been stormy. During the seventies proselyting effort was directed chiefly toward the influencing of the trade-unions to declare for socialism. In 1879 the general trade-union congress at Marseilles took the desired step, but in the congress of the following year at Havre there arose a schism between the "collectivists" and the "co-operatives" which in reality has never been healed. During the eighties and nineties the process of disintegration continued, and there came to be a half-dozen socialist parties, besides numerous local groups of independents. During the years 1898-1901 continued effort was made to bring the various socialist elements into some sort of union, and in 1900 a national congress of all French socialist parties and organizations was held at Paris. An incident of the (p. 334) Dreyfus controversy was the elevation of an independent socialist, Etienne Millerand, to a portfolio in the ministry of Waldeck-Rousseau, and this event became the occasion of a new socialist breach. The Parti Socialiste Francais, led by the eloquent Jaures, approved Millerand's opportunism; the Parti Socialist de France opposed. In 1905, however, these two bodies were amalgamated in the Parti Socialist of the present day, with a programme which calls for the socializing of the means of production and exchange, i.e., the transforming of the capitalistic organization of society into a collectivist or communistic organization. The means by which the party proposes to bring about the transformation is the industrial and political organization of the working classes. In respect to its aim, its ideals, and its means, the French Socialist party, while ready to support the immediate reforms demanded by laboring people, is to a greater degree than the German Social Democracy a party of class struggle and revolution. In 1885, when the French socialists waged their first campaign in a parliamentary election, the aggregate number of socialist votes was but 30,000. By 1889 the number had been increased to 120,000; by 1898 to 700,000; and by 1906 to 1,000,000. At the election of 1910 the popular vote was increased by 200,000, and the number of socialist deputies was raised to a total of 105. Within recent years socialism, formerly confined almost wholly to the towns and cities, has begun to take hold among the wage-earners, and even the small proprietors, in the rural portions of the country.[496]

[Footnote 496: The best accounts in English of the French parties and party system are Lowell, Governments and Parties, I., Chap. 2; Bodley, France, Book IV., Chaps. 1-8; and C. Seignobos, The Political Parties of France, in International Monthly, Aug., 1901. The last-mentioned is brief, but excellent. A valuable work is P. Laffitte, Le suffrage universel et la regime parlementaire (2d ed., Paris, 1889). Among useful articles may be mentioned: J. Meline, Les partis dans la republique, in Revue Politique et Parlementaire, Jan., 1900; M. H. Doniol, Les idees politiques et les partis en France durant le XIXe siecle, in Revue du Droit Public, May-June, 1902; and A. Charpentier, Radicaux et socialistes de 1902 a 1912, in La Nouvelle Revue, May 1, 1912. On socialism in France see J. Peixotto, The French Revolution and Modern French Socialism (New York, 1901); R. T. Ely, French and German Socialism in Modern Times (New York, 1883); P. Louis, Histoire du socialisme francais (Paris, 1901); E. Villey, Les perils de la democratie francaise (Paris, 1910); and A. Fouillee, La democratie politique et sociale en France (Paris, 1910).]



CHAPTER XVIII (p. 335)

JUSTICE AND LOCAL GOVERNMENT

I. FRENCH LAW

The law of France is of highly composite origin. Its sources lie far back in the Roman law, the canon law, and the Germanic law of the Middle Ages. As late as 1789 there had been no attempt at a complete codification of it. Under the operation of a succession of royal ordinances, criminal law, civil and criminal procedure, and commercial law, it is true, had been reduced by the opening of the Revolution to a reasonable measure of uniformity. The civil law existed still, however, in the form of "customs" (coutumiers), which varied widely from province to province. A code of civil law which should be established uniformly throughout the realm was very generally demanded in the cahiers of 1789, and such a code was specifically promised in the constitution of 1791.

*364. The Code Napoleon.*—Toward the work of codification some beginnings were made by the first two Revolutionary assemblies, but the development of a coherent plan began only with the Convention.[497] In the period of the Consulate the task was continued and progress was rapid. The governmental mechanism under the constitution of 1799 was cumbersome enough, but it was not ill adapted to the prosecution of a project of this particular character. To a special commission, appointed by the First Consul, was intrusted the drafting of the codes, and the ultimate decision of difficult or controverted questions fell to the Council of State, over whose deliberations Napoleon not infrequently presided in person. March 31, 1804,—less than two months before the proclamation of the Empire,—the new Code civil des Francais was promulgated in its entirety. September 3, 1807, the instrument was given officially the name of the Code Napoleon. By a measure of 1818 the original designation was restored; but a decree of March 27, 1852, revived the Napoleonic nomenclature. Since September 4, 1870, the instrument has been cited officially simply as the Code Civil. In arrangement the Code resembles the Institutes of Justinian. In (p. 336) content it represents a very successful combination of the two great elements with which the framers had to deal, i.e., the ancient heterogeneous law of the French provinces and the law which was originated, or which was given shape, during the course of the Revolution.

[Footnote 497: H. Cauviere, L'idee de codification en France avant la redaction du Code Civil (Paris, 1911).]

With the progress of time certain defects have appeared in the Code, and since 1871 more than a hundred modifications, some important and some otherwise, have been introduced in it. Upon the occasion of the celebration, in 1904, of the centenary of its promulgation there was created an extra-parliamentary commission charged with the task of preparing a revision of the instrument.[498] In the main, the faults to be corrected are those which have arisen inevitably from the growth of new interests and the development of new conditions since 1804, in respect, for example, to insurance and to labor. In Belgium the Code Napoleon survives to this day, and the codes of Italy, Spain, Portugal, Holland, and many of the Latin American states are modelled upon it.

[Footnote 498: The task of revision has not yet been accomplished. See La Code Civil, livre du centenaire (Paris, 1904)—a volume of valuable essays by French and foreign lawyers.]

*365. Other Codes.*—Aside from the Civil Code of 1804, containing an aggregate of 2,281 articles, the larger part of the law of France to-day is comprised in four great codes, all drawn up and promulgated during the era of the Consulate and the Empire. These are: (1) the Code of Civil Procedure, of 1,042 articles, in 1806; (2) the Code of Commerce, of 648 articles, in 1807; (3) the Code of Criminal Instruction, of 648 articles, in 1808; and (4) the Penal Code, of 484 articles, in 1810.[499] The last two codes were submitted to a general revision in 1832, and various supplementary codes,—e.g., the Forest Code, of 226 articles, in 1827,—have been promulgated. But the modifications introduced since Napoleon's day have involved principally mere details or the addition of subjects originally omitted. No one of the codes represented at the time of its promulgation a new body of law. On the contrary, all of them, and especially the fundamental Civil Code of 1804, merely reduced existing law to systematic, written form, introducing order and uniformity where previously there had been diversity and even chaos. By the process the law of France was given a measure of unity and precision which it had never before possessed, with the disadvantage, however, that it lost the flexibility and dynamic character that once had belonged to it. Throughout the past hundred years the whole of France has been a country of one written law—a law so comprehensive in (p. 337) both principles and details that, until comparatively recently, there has seemed to be small room or reason for its modification. The history of French parliamentary assemblies has been affected perceptibly by the narrowing of the field of legislation arising from this circumstance.[500]

[Footnote 499: M. Leroy, Le centenaire du code penal, in Revue de Paris, Feb. 1, 1911.]

[Footnote 500: J. Brissaud, History of French Private Law, trans. by R. Howell (Boston, 1912).]

II. THE COURTS

*366. The Ordinary Courts: Justice of the Peace.*—In French practice the distinction which is drawn between private law and public law is so sharp that there have been built up two hierarchies of courts—the ordinary and the administrative—each of which maintains practically exclusive jurisdiction within an independent field. The ordinary courts comprise civil and criminal tribunals, together with certain special tribunals, such as the tribunaux de commerce. At the bottom stands the court of the justice of the peace (juge de paix) of the canton. This tribunal was created by the first of the Revolutionary assemblies and it has existed continuously to the present day. The justice of the peace takes cognizance of disputes where the amount involved does not exceed 600 francs, and of contraventions of law punishable by a fine not exceeding fifteen francs or imprisonment not beyond five days. In civil cases involving more than 300 francs, and in criminal cases involving imprisonment or a fine exceeding five francs, appeal lies to a higher tribunal.

*367. The Courts of First Instance.*—Next above the court of the justice of the peace stands the tribunal de premiere instance, or tribunal d'arrondissement. Of such courts there is, with a few exceptions, one in each arrondissement or district. Each consists of a president, at least one vice-president, and a variable number of judges, three of whom form a court with full powers. To each is attached a procureur, or public prosecutor. This tribunal takes cognizance of all kinds of civil cases. In appeals from the justices of the peace, actions relating to personal property to the value of 1500 francs, actions relating to land to the value of sixty francs per year, and all cases of registration, there lies no appeal from its decisions. The jurisdiction of the court in penal cases extends to all offenses of the class known as delits (misdemeanors), i.e., offenses involving penalities which are heavier than those attached to the contraventions dealt with by the justices of the peace, yet less serious than those prescribed for crimes. When sitting as a criminal court, the court of first instance is known as a tribunal (p. 338) correctionnel, or "correctional court." All of its judgments in criminal cases are subject to appeal.

*368. The Courts of Appeal and of Assize.*—Above the courts of first instance are twenty-six cours d'appel, or courts of appeal, each of which exercises jurisdiction within a territory comprising from one to five departments. At the head of each is a president, and each maintains an elaborate parquet, or permanent staff of officials, in which are included several procureurs-generaux and avocats-generaux. For the transaction of business the court of appeal is divided into chambers, or sections, each consisting of a president and four conseillers, or judges. The primary function of the court is the hearing of appeals, in both civil and criminal causes, from the courts of first instance. Original jurisdiction is limited and incidental.

Closely related to the courts of appeal are the cours d'assises, or courts of assize. These are not separate or permanent tribunals. Every three months there is constituted in each department, ordinarily in the chief town thereof, a court of assize consisting of a specially designated member of the court of appeals within whose jurisdiction the department lies and two other magistrates, who may be chosen either from the remaining conseillers of the court of appeals or from the justices of the local court of first instance. The courts of assize are occupied exclusively with serious offenses, such as in the Penal Code are classified as crimes. In them, and in them only among French tribunals, is the device of the jury regularly employed. A jury consists of twelve men, whose verdict is rendered by simple majority. As in Great Britain and some of the American states, the jurors determine the fact but do not apply the law.

*369. The Court of Cassation.*—At the apex of the hierarchy of ordinary tribunals is the Court of Cassation. This court sits at Paris, and in all matters of ordinary private law it is the supreme tribunal of the state. It consists of a first president, three sectional presidents, and forty-five judges. Attached to it are a procurator-general and six advocates-general. For working purposes it is divided into three sections: the Chambre des Requetes, or Court of Petitions, which gives civil cases a preliminary hearing; the Civil Court, which gives them a final consideration; and the Criminal Court, which disposes of criminal cases on appeal. It is within the competence of the Court of Cassation to review the decisions of any tribunal in France, save those of an administrative character. It passes, not upon fact, but upon the principles of law involved and upon the competence of the court rendering the original decision. A decision which is overruled is said to be casse, i.e., annulled. The purpose of the Court of (p. 339) Cassation is not alone to further the interests of justice, but also to preserve the unity of French jurisprudence.

*370. Appointment and Tenure of Judges.*—All judges attached to the ordinary tribunals are appointed by the President of the Republic, on the recommendation, and under the responsibility, of the Minister of Justice. With the exception of justices of the peace in France, and of judges of all grades in Algeria and the colonies, tenure of judicial office continues during good behavior; and, outside of the classes mentioned, no judicial officer may be dismissed without the consent of the Court of Cassation. There is, however, an age limit, varying with the official grade, at which retirement is expected and virtually required. Justices of the peace and Algerian and colonial judges maybe dismissed by the President. Salaries range from 1,600 francs per year in the case of the justice of the peace to 30,000 in that of the President of the Court of Cassation.[501]

[Footnote 501: The best treatise upon the French judicial system and upon proposed reforms of it is J. Coumoul, Traite du pouvoir judiciaire; de son role constitutionnel et de sa reforme organique (2d ed., Paris, 1911). See Vicomte d'Avenel, La reforme administrative—la justice, in Revue des Deux Mondes, June 1, 1889; L. Irwell, The Judicial System of France, Green Bag, Nov., 1902.]

*371. Administrative Law and Administrative Tribunals.*—Actions at law arising out of the conduct of administration are brought, not in the regular courts connected with the Ministry of Justice, but in special administrative tribunals connected with the Ministry of the Interior. Administrative courts exist for the application of administrative law, and administrative law may be defined in brief as that body of legal principles by which are determined the status and liabilities of public officials, the rights and liabilities of private individuals in their dealings with the official representatives of the state, and the procedure by which these rights and liabilities may be enforced. The idea underlying it is that the government, and every agent of the government, possesses a body of rights, privileges, and prerogatives which are sharply marked off from those of the private citizen, and that the nature and extent of these rights and privileges are to be determined on principles essentially distinct from those which govern in the fixing of the rights and privileges of citizens in relation one to another. This conception is foreign to the English-speaking world, and neither Great Britain nor any nation of English origin possesses more than here and there an accidental trace of administrative law. Among continental European states, however, the maintenance of a body of administrative legal principles—uncodified and flexible, but (p. 340) fundamental—is all but universal. In some states, as Belgium, the rules of administrative law are interpreted and enforced by the ordinary courts; but in others, as in France, they are dealt with by an entirely separate hierarchy of tribunals, made up of officials in the service of the government and dismissable at any time by the head of the state. "In France," as one writer puts it, "there is one law for the citizen and another for the public official, and thus the executive is really independent of the judiciary, for the government has always a free hand, and can violate the law if it wants to do so without having anything to fear from the ordinary courts."[502] Although not without precedent in the Old Regime, the distinction between ordinary and administrative law in France was first clearly established by Napoleon in the constitution of 1799, and the system of administrative courts erected under that instrument has survived in large part to the present day.[503]

[Footnote 502: Lowell, Governments and Parties, I., 58.]

[Footnote 503: It need hardly be explained that the First Consul's intention was that the ordinary judges should not be allowed to obstruct by their decisions the policies of the government.]

*372. The Council of State.*—The most important of the administrative tribunals is the Conseil d'Etat, or Council of State, a body which once possessed large functions of an executive and legislative character, but whose influence to-day arises almost exclusively from its supreme administrative jurisdiction. The Council of State is composed of 32 councillors en service ordinaire, 19 councillors en service extraordinaire (Government officials deputed to guard the interests of the various executive departments), 32 maitres des requetes, and 40 auditors. All members are appointed by, and dismissable by, the President. For purposes of business the body is divided into four sections, each corresponding to a group of two or three ministerial departments, and a fifth section which deals more directly with questions of administrative law. It is the function of the Council to consider and make reply to all questions relating to administrative affairs which the Government may lay before it; and in all administrative cases at law it is the court of last resort. Below it stands, in each department, a conseil de prefecture, or prefectural council, which is the court of first instance in all litigation arising out of the application of administrative law. A specialized function of the prefectural council is the determining of the validity of arrondissement and municipal elections.[504]

[Footnote 504: For an account of the administrative law of France see A. V. Dicey, The Law of the Constitution (7th ed., London, 1908), Chap. 12. Important French works on the subject include H. Barthelemy, Traite elementaire de droit administratif (5th ed., Paris, 1908); H. Chardon, L'administration de la France, les fonctionnaires (Paris, 1908); G. Jeze, Les principes generaux du droit administratif (Paris, 1904); and J. L. Aucoc, Conferences sur l'administration et le droit administratif (3d ed., Paris, 1885). Mention may be made also of E. J. Laferriere, Traite de la jurisdiction administrative et des recours contentieux (Paris, 1887-1888), and Varagnac, Le Conseil d'Etat et les projets de reforme, in Revue des Deux Mondes, Aug. 15, and Sept. 15, 1892.]

*373. Other Courts.*—Between the hierarchy of ordinary courts (p. 341) and that of administrative tribunals stand a variety of courts of special character—courts of commerce, courts of accounts, courts of public instruction. There is a Tribunal des Conflits, or Court of Conflicts, composed of the Minister of Justice, three members of the Court of Cassation, three of the Council of State, and two elected by these seven. Under the presidency of the Minister of Justice, it determines, in the event of doubt or dispute, the competent jurisdiction, ordinary or administrative, to be extended to a particular case. Finally the fact may be recalled that to take cognizance of attacks upon the safety of the state, as well as for the trial of an impeachment proceeding, the Senate may be constituted a high court of justice.

III. LOCAL GOVERNMENT: DEVELOPMENT SINCE 1789

*374. Stability of Local Institutions.*—Students of political science are familiar with the fact that governmental systems are, as a rule, less stable at the top than at the bottom. Local institutions, embedded in the interests of the community and supported by the native conservatism of the ordinary man, strike root deeply; the central, national agencies of law-making and of administration are played upon by larger, more unsettling forces, with the consequence of greatly increased likelihood of change. Of this principle the history of modern France affords notable illustration. Throughout a century of the most remarkable instability in the organization of the central government of the nation the scheme of local government which operates at the present day has been preserved almost intact. The origins of it, it is true, are to be traced to revolution. In most of its essentials it was created by the National Assembly of 1789 and by Napoleon, and it rose upon the wreckage of a system whose operation had been extended through many centuries of Capetian and Bourbon rule. Once established, however, it proved sufficiently workable to be perpetuated under every one of the governmental regimes which, between 1800 and the present day, have filled their successive places in the history of the nation.

*375. Local Government Under the Old Regime.*—Prior to the Revolution the French administrative system was centralized and bureaucratic, but heterogeneous and notoriously ineffective. The provinces had ceased almost completely to be political units. In but few of them did (p. 342) the ancient assembly of the estates survive, and nowhere did it possess more than merely formal administrative powers. The "governments" of later times, corresponding roughly to the provinces, had fallen likewise into desuetude and the governors had become inactive pensioners. Of political units possessing some vitality there were but two—the generalite and the commune. The generalite was the jurisdiction of a royal officer known as an intendant, to whom was assigned the conduct of every kind of administrative business. The number of generalites in the kingdom varied from thirty to forty. The commune was an irreducible local unit whose history was unbroken from the era of Roman dominion in Gaul. Its constitution in the eighteenth century was in appearance democratic. To the communal assembly belonged all persons who were liable to the taille, and this body elected communal officers, cared for communal property, and regulated local affairs. In point of fact, however, the measure of real independence which the assembly enjoyed was meager. The intendant dictated or controlled virtually its every act. Of true local government it may be said that in pre-revolutionary France there was little or none.[505]

[Footnote 505: A. Babeau, La ville sous l'ancien regime (Paris, 1880); A. Luchaire, Les communes francaises (Paris, 1890); H. Barthelemy, Traite de droit administratif (5th ed., Paris, 1908); A. Esmein, Histoire du droit francais (8th ed., Paris, 1908).]

*376. The Reconstitution of 1789-1791.*—One of the earlier performances of the National Assembly of 1789 was to sweep away relentlessly the administrative system of the Old Regime and to substitute therefor an order which was all but entirely new. The communes, to the number of upwards of forty-four thousand, were retained. But the provinces and the generalites were abolished and in their places was erected a system of departments, districts, and cantons. For historic boundary lines, physical demarcations, and social cleavages only incidental allowance was made. Eighty-three departments in all were created. In each there were, on an average, six or seven districts, and in each of these an average of eight or nine cantons. The cantons, in turn, were made up of widely varying numbers of communes. The most striking aspects of the system were its symmetry and its detachment from history and tradition. Departments, districts, and cantons presented, and were intended to present, a tabula rasa upon which the law-makers of France might impress any pattern whatsoever.

For the time being the ideal of democracy was predominant, and by the measures of 1789, re-enforced by the constitution of 1791, the entire administration of local affairs was transferred at a stroke from the agents of the crown to the elected representatives of the new governmental units. In the department was established an (p. 343) administrative group consisting of thirty-six persons, elected for a term of two years, and divided into an executive directory of nine and a deliberative council of twenty-seven. In the district was established a similar, but smaller, elective directory and council, and in the commune provision was made for the election, under a broadly democratic franchise, of a mayor and a council. The canton was not employed for administrative purposes.[506]

[Footnote 506: For the text of the Decret sur les Municipalites of December 14, 1789, see Helie; Constitutions, 59-72. An English version is in Anderson, Constitutions, 24-33.]

*377. The Revival of Centralization, 1795-1800.*—Experience proved, that in the direction both of democracy and of decentralization the reformers had gone too far. With the re-establishment of order following the close of the Revolution proper, in 1795, there was revived the rule of official experts, together with the maintenance over the local administrative organs of a highly centralized supervision. The Constitution of the Year III. (1795), while perpetuating the elective principle in respect to local officers, replaced the commune by the canton as the basal administrative unit and made provision in a variety of ways for the effective control of local affairs by the national Directory.[507] Under the Napoleonic regime, established in 1799-1800, the centralizing process was carried yet further. The canton was reduced to the status of a judicial district and the commune was restored as the basal administrative unit;[508] but it was stipulated that the mayor, the adjoints, or deputies, and the council of the commune should be no longer elective, but should be appointed by the central government, directly or by its departmental agents. By law of February 17, 1800, there was established in each department a prefect, appointed by the First Consul, responsible only to him, and endowed with functions scarcely less comprehensive than, in the days of the Old Regime, had been those exercised by the intendant. The general council of the department was perpetuated, but its sixteen to twenty-four members were henceforth to be named for a term of three years by the First Consul. Each department, furthermore, was divided for administrative purposes into arrondissements, within each, of which were established a sub-prefect and a council of eleven members, likewise appointive. The arrondissement represented substantially a revival of the district, established by law of December 22, 1789, and extinguished by the constitution of 1795. The sub-prefect served as a local deputy of the prefect, and one of his principal duties was to assist in the (p. 344) continuous and close supervision of the affairs of the communes within his jurisdiction.[509]

[Footnote 507: Anderson, Constitutions, 233-236. The canton, suppressed by law of June 26, 1793, was now revived.]

[Footnote 508: The number of communes was reduced at this time from 44,000 to 36,000.]

[Footnote 509: Anderson, Constitutions, 283-288. G. Alix, Les origines du systeme administratif francais, in Annales des Sciences Politiques, July-Nov., 1899.]

*378. From Napoleon to the Third Republic.*—The Napoleonic administrative system—simple, symmetrical, bureaucratic, and absolutely centralized—has persisted in France, in a large measure, to the present day.[510] The most important modifications that have been introduced in it are those which have arisen from a cautious revival of the elective principle in the constitution of the various local governmental bodies. The fall of Napoleon brought no change of consequence, and none ensued until after the revolution of 1830. In the days of the Orleanist monarchy, however, the rigor of the Napoleonic system was in some measure relaxed. A law of 1831 made the municipal council elective, one of 1833 did the same thing for the councils of the department and the arrondissement, and both measures established a fairly liberal arrangement in respect to the local franchise. In 1838 the powers of the two councils were materially increased.[511]

[Footnote 510: Its influence upon the administrative systems of other countries—Belgium, Italy, Spain, and even Greece, Japan, and various Latin American states—has been profound. "Judged by its qualities of permanence and by its influence abroad, the law of 1800 is one of the best examples of Bonaparte's creative statesmanship, taking rank with the Code and with the Concordat among his enduring non-military achievements. If, in the nineteenth century, England has been the mother of parliaments and has exercised a dominant influence upon the evolution of national governments, France has had an equally important role in moulding systems of local administration among the nations." Munro, Government of European Cities, 7.]

[Footnote 511: The texts of these acts are in Helie, Constitutions, 1019-1050.]

At the establishment, in 1848, of the Second Republic, the essentials of the administrative system then prevailing were retained. It was enacted merely that the various councils should be elected on a basis of manhood suffrage, and that in communes of fewer than six thousand inhabitants the council should be permitted to elect the mayor and the deputies, while in the larger ones appointment should be made as heretofore by the central authorities. With the conversion, in 1851-52, of the Second Republic into the Second Empire, this decentralizing tendency suffered a distinct check. Throughout the reign of Napoleon III. the communal council continued to be elected, at least nominally, upon the principle of manhood suffrage; but so thoroughgoing was the prefectorial supervision that there remained to the councils very little of initiative or independence of action. Even the privilege which the smaller communes possessed of choosing their own mayors was speedily lost, while by a decree of March 25, 1852, the powers of the prefect in communal affairs were substantially (p. 345) extended. Many matters pertaining to departmental and communal interests which this official had been accustomed to refer to the authorities at Paris he was now authorized to dispose of at his own discretion. Throughout the Second Empire the prefect, more truly than ever before, was the pivot of the administrative system. Despite the survival of elective councils in the departments, the arrondissements, and the communes, local autonomy all but disappeared.

*379. Changes Under the Third Republic.*—Upon the establishment of the Third Republic the Napoleonic system was discontinued in only some of its more arbitrary aspects. The National Assembly of 1871 revived tentatively the scheme laid down in the constitution of 1848, save that once again the councils of smaller communes were authorized to elect the mayors and deputies. Even at such a time of unsettlement, when the liberal elements were insistent upon changes that were fundamental, there was slender indication of any real desire on the part of the French people for an essentially decentralized administrative regime. At the most, the demand was but for the autonomy of the commune, while the canton, arrondissement, and department should continue to be administered by, and largely in the interest of, the national government. By law of March 28, 1882, the demand in behalf of the communes was met. Upon every commune, large and small (except Paris), was conferred the privilege of choosing freely its entire quota of administrative officials; and in the great municipal code of April 5, 1884, drafted by a commission of nine constituted in the previous year, this privilege, with others, was specifically guaranteed.[512] Departments and arrondissements, however, continued to be primarily spheres within which the general government, acting through its own agents, brought home immediately to the people the reality and comprehensiveness of its authority. And to this day France presents the curious spectacle of a nation broadly democratic in respect to its constitution and central government, yet more closely bound by a hard and fast administrative regime than any other principal state of western Europe.[513]

[Footnote 512: Text in J. Duvergier, Collection complete des lois, decrets, ordonnances, reglements, avis du conseil d'etat (Paris, 1834-1907), LXXXIV., 99-148.]

[Footnote 513: On the French administrative system two admirable general works are H. Barthelemy, Traite de droit administratif (5th ed., Paris, 1908), and A. Esmein, Histoire du droit francais (8th ed., Paris, 1908). An older treatise of value is E. Monnet, Histoire de l'administration provinciale, departementale et communale en France (Paris, 1885). Three works in which the subject is dealt with in a comparative fashion are P. P. Leroy-Beaulieu, Administration locale en France et en Angleterre (Paris, 1872); P. W. L. Ashley, Local and Central Government (London, 1906); and F. J. Goodnow, Comparative Administrative Law (2d ed., New York, 1903). A study of some value is J. T. Young, Administrative Centralization and Decentralization in France, in Annals of Amer. Acad. of Political and Social Science, Jan., 1898.]

IV. LOCAL GOVERNMENT TO-DAY (p. 346)

*380. The Department: the Prefect.*—For administrative purposes, the Republic is divided, first of all, into 86 departments, besides which there is the "territory" of Belfort, a remnant of the department of the Upper Rhine, most of which was acquired by Germany in 1871. Since 1881 the three departments of Algeria have been dealt with substantially as if included within continental France.

At the head of each of the departments is a prefect, appointed and removed nominally by the President of the Republic, but in reality by the Minister of the Interior. The prefect, who is much the most important of all local officials, is at the same time an agent of the general government and the executive head of the department in the administration of local affairs. As agent of the general government he acts, in some instances, upon detailed instructions; in others, he enjoys a wide range of discretion. His powers extend to virtually all public matters affecting the department. He supervises the execution of the laws; maintains a vigorous control over all administrative officials of the department, upon occasion annulling their acts; gives the authorities at Paris information and advice respecting the affairs of the department; nominates to a variety of subordinate offices; exercises an oversight of the communes, some of whose measures become effective only after receiving his assent; and, in certain instances indicated by law, acts as a judge. He is assisted by a secretary and a conseil de prefecture, appointed by the President. This prefectorial council, consisting of from three to nine members, advises the prefect and, in certain cases, exercises jurisdiction as an administrative tribunal. The prefect is essentially a political official. He owes his appointment not infrequently to political considerations, and with the fall of the ministry his tenure is apt to be terminated.

*381. The Department: the General Council.*—As executive head of the department the prefect is required to work with a conseil general, or representative assembly, elected by the inhabitants of the department on a basis of manhood suffrage. This council comprises one member chosen in each canton for a period of six years, half of the number retiring every three years. The actual powers of the body are not large. Aside from the apportioning of the direct taxes among the arrondissements, they are restricted pretty generally to the administration of highways, canals, schools, asylums, and similar interests. Questions of a political nature or of a national (p. 347) bearing are rigorously excluded from consideration. The council has but two ordinary sessions a year—one extending through not more than fifteen days, the other not more than a month. The longer begins regularly in August and is devoted to the consideration of the budget. During the intervals between sessions the council is represented by a commission departementale, or permanent delegation, of from four to seven members. Neither the council nor the delegation possesses any considerable measure of control over the prefect. The council's acts may be vetoed by the President of the Republic, and, except when the national parliament is in session, the body may be dissolved by the same power. The department is an essentially artificial political unit. During the century and a quarter of its existence it has not become—indeed has been prevented deliberately from becoming—a sphere of forceful, independent governmental activity.[514]

[Footnote 514: An administrative reform which appears not infrequently in current political discussion in France is the grouping of the departments into "regions" possessing a certain community of character and interest. Each of a score or more of regions might conceivably be made to have an assembly of its own, and within each of them one of the departmental prefects might be given a certain superiority over his colleagues. The principal purpose would be to offset somewhat the nation's present excess of administrative centralization. On this proposal see C. Beauquier, Un projet de reforme administrative; l'organisation regionale en France, in Revue Politique et Parlementaire, Nov. 10, 1909. Cf. A. Brette, La reforme des departements a propos d'une proposition de loi, ibid. On the department as at present constituted the monumental treatise is G. Bouffet et L. Perier, Traite du departements 2 vols. (Paris, 1894-1895). In M. Laferriere, Loi organique departementale du 10 Aout 1871 (Paris, 1871) is an annotated copy of the organic statute of 1871. See also G. Dethan, De l'organisation des conseils generaux (Paris, 1889); A. Nectoux, Des attributions des conseillers generaux (Paris, 1895); and P. Chardenet, Les elections departementales (Paris, 1895). An excellent brief statement will be found in M. Block, Dictionnaire de l'administration francaise (5th ed., Paris and Nancy, 1905), I., 933-948, 1101-1116.]

*382. The Arrondissement and the Canton.*—Next to the department stands the arrondissement, or district, created originally in 1799. Within the bounds of France there are to-day 362 of these districts. Except those in the department of the Seine, and three containing the capitals of departments elsewhere, each has in its chief town a sub-prefect, who serves as a district representative of the prefect. Every one has a conseil d'arrondissement, or arrondissement council, consisting of at least nine members, elected by manhood suffrage for a term of six years. But since the arrondissement has no corporate personality, no property, and no budget, the council possesses but a single function of importance, that, namely, of allotting among the communes their quotas of the taxes assigned to the arrondissement by the general council of the department. The arrondissement is, (p. 348) however, the electoral district for the Chamber of Deputies, and also normally the seat of a court of first instance.[515]

[Footnote 515: Block, Dictionnaire de l'administration francaise, I., 256-260.]

The canton is an electoral and a judicial, but not strictly an administrative, unit. It is the area from which are chosen the members of both the departmental general council and the council of the arrondissement, and it constitutes the jurisdiction of the justice of the peace. The total number of cantons is 2,911. As a rule each contains about a dozen communes, though a few of the larger communes are so populous as to be divided into a number of cantons.

*383. The Commune.*—The most fundamental of the administrative divisions of France, and the only one whose origins antedate the Revolution, is the commune. The commune is at the same time a territorial division and a corporate personality. "On the one hand," to employ the language of a recent writer, "it is a tract of territory the precise limits of which were defined by the law of December 22, 1789, or by some subsequent law or decree; for by the law of 1789 all local units which had a separate identity during the old regime were authoritatively recognized as communes, and since that enactment there have been a number of suppressions, divisions, consolidations, and creations of communal units. On the other hand, the commune is an agglomeration of citizens united by life in a common locality and having a common interest in the communal property. A commune ranks as a legal person: it may sue and be sued, may contract, acquire, or convey property,—it may, in general, exercise all of the ordinary rights of a corporation."[516]

[Footnote 516: Munro, Government of European Cities, 15.]

Of communes there are, in all, under the territorial land survey of 1909, 36,229. In both size and population they vary enormously. Some comprise but diminutive hamlets of two or three score people; others comprise cities like Bordeaux, Lyons, and Marseilles, each with a population in excess of a quarter of a million. At the last census 27,000 communes had a population of less than one thousand; 17,000, of less than five hundred; 9,000, of less than three hundred; 137, of less than fifty. On the other hand, 250 contained each a population of more than ten thousand, and fourteen of more than one hundred thousand. In area they vary all the way from a few acres to the 254,540 acres of the commune of Arles.[517]

[Footnote 517: A. Porche, La question des grandes et des petits communes (Paris, 1900).]

*384. The Communal Council.*—Except Paris and Lyons, all communes are organized and governed in the same manner. In each is a council, (p. 349) whose members are elected by manhood suffrage and, normally, on the principle of the scrutin de liste, for a term of four years. The body is renewed integrally, on the first Sunday in May in every fourth year. In communes whose population is under five hundred the number of councillors is ten; in those whose population exceeds five hundred the number is graduated on a basis such that a commune of sixty thousand people has a council of thirty-six, which is the maximum. The council holds annually four ordinary sessions—in February, May, August, and November—besides which special meetings may be convoked at any time by the prefect, the sub-prefect, or the mayor. Sessions are held in the mairie, or municipal building, and are regularly open to the public. Except the May session, during which the budget is considered, a meeting may not be prolonged beyond fifteen days, save with the consent of the sub-prefect. The normal maximum of the May sitting is six weeks.

Speaking broadly, the functions of the council may be said to comprise the administration of the purely local affairs of the commune and the formulation and expression of local needs and demands. In the code of 1884 the powers of the body are defined with exceeding minuteness. Some are purely advisory, to be exercised when the council is called upon by the higher administrative authorities for an expression of local interest or desire in respect to a particular question. Advice thus tendered may or may not be heeded. Other powers involve the initiation by the council of certain kinds of measures, which, however, may be carried into effect only with the assent of the higher authorities. Among the thirteen such measures which are enumerated in the code the most important are those pertaining to the purchase, sale, or other legal disposition of property belonging to the commune. Finally, there is a group of powers—relating principally to the various communal services, e.g., parks, fire-protection, etc.—which are vested in the communal authorities (council and mayor) independently. But the predominating fact is that even to-day the autonomy of the commune is subject to numerous and important limitations. Many communal measures become valid only upon receiving the approval of the prefect, and virtually any one of them may be suspended or annulled by that official. Some require the consent of the departmental council, or even of the President of the Republic; and by decree of the President the council itself may be dissolved at any time.

*385. The Mayor and his Assistants.*—The executive head of the commune is the maire, or mayor, who is elected by the municipal council, by secret ballot, from its own membership, for a term of four years. Associated with the mayor is, in communes of 2,500 inhabitants or fewer, an adjoint, or assistant, similarly chosen. In communes (p. 350) of 2,500 to 10,000 inhabitants there are two assistants, and in those of over 10,000 there is an additional one for every 25,000 people in excess of the figure named. Except in Lyons, however, where there are seventeen, the number may not exceed twelve. The mayor plays the dual role of executive head of the commune and representative (though not the appointee) of the central government. The powers which he exercises vary widely according to the size and importance of the commune. But in general it may be said that he appoints to the majority of municipal offices, publishes laws and decrees and issues arretes, or ordinances, supervises finance, organizes and controls the local police, executes measures for public health and safety, safeguards the property interests of the commune, and represents the commune in cases at law and on ceremonial occasions.