The Governments of Europe Part 29

[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 arrondiss.e.m.e.nt and munic.i.p.al elections.[504]

[Footnote 504: For an account of the administrative law of France see A. V. Dicey, The Law of the Const.i.tution (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 Ca.s.sation, 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 const.i.tuted a high court of justice.

III. LOCAL GOVERNMENT: DEVELOPMENT SINCE 1789

*374. Stability of Local Inst.i.tutions.*--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 inst.i.tutions, 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 ill.u.s.tration. 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 a.s.sembly 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 a.s.sembly 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 a.s.signed 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 const.i.tution in the eighteenth century was in appearance democratic. To the communal a.s.sembly 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 a.s.sembly 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 Reconst.i.tution of 1789-1791.*--One of the earlier performances of the National a.s.sembly of 1789 was to sweep away relentlessly the administrative system of the Old Regime and to subst.i.tute 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 const.i.tution 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 Munic.i.p.alites of December 14, 1789, see Helie; Const.i.tutions, 59-72. An English version is in Anderson, Const.i.tutions, 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 Const.i.tution 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 _arrondiss.e.m.e.nts_, within each, of which were established a sub-prefect and a council of eleven members, likewise appointive. The arrondiss.e.m.e.nt represented substantially a revival of the district, established by law of December 22, 1789, and extinguished by the const.i.tution of 1795. The sub-prefect served as a local deputy of the prefect, and one of his princ.i.p.al duties was to a.s.sist in the (p. 344) continuous and close supervision of the affairs of the communes within his jurisdiction.[509]

[Footnote 507: Anderson, Const.i.tutions, 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, Const.i.tutions, 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 const.i.tution 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 munic.i.p.al council elective, one of 1833 did the same thing for the councils of the department and the arrondiss.e.m.e.nt, 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, j.a.pan, 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 statesmans.h.i.+p, 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, Const.i.tutions, 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 arrondiss.e.m.e.nts, 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 a.s.sembly of 1871 revived tentatively the scheme laid down in the const.i.tution 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, arrondiss.e.m.e.nt, 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 munic.i.p.al code of April 5, 1884, drafted by a commission of nine const.i.tuted in the previous year, this privilege, with others, was specifically guaranteed.[512] Departments and arrondiss.e.m.e.nts, 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 const.i.tution and central government, yet more closely bound by a hard and fast administrative regime than any other princ.i.p.al 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), Lx.x.xIV., 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 fas.h.i.+on 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 a.s.sent; and, in certain instances indicated by law, acts as a judge. He is a.s.sisted 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 a.s.sembly, 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 arrondiss.e.m.e.nts, they are restricted pretty generally to the administration of highways, ca.n.a.ls, 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 a.s.sembly of its own, and within each of them one of the departmental prefects might be given a certain superiority over his colleagues.

The princ.i.p.al 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 const.i.tuted 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 Arrondiss.e.m.e.nt and the Canton.*--Next to the department stands the arrondiss.e.m.e.nt, 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'arrondiss.e.m.e.nt_, or arrondiss.e.m.e.nt council, consisting of at least nine members, elected by manhood suffrage for a term of six years. But since the arrondiss.e.m.e.nt 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 a.s.signed to the arrondiss.e.m.e.nt by the general council of the department. The arrondiss.e.m.e.nt 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 arrondiss.e.m.e.nt, and it const.i.tutes 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 ident.i.ty 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 Ma.r.s.eilles, 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 pet.i.ts 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 munic.i.p.al 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 a.s.sent 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 princ.i.p.ally 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 a.s.sistants.*--The executive head of the commune is the _maire_, or mayor, who is elected by the munic.i.p.al council, by secret ballot, from its own members.h.i.+p, for a term of four years.

a.s.sociated with the mayor is, in communes of 2,500 inhabitants or fewer, an _adjoint_, or a.s.sistant, similarly chosen. In communes (p. 350) of 2,500 to 10,000 inhabitants there are two a.s.sistants, 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 munic.i.p.al 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.

The functions of the mayoral office are in practice distributed by the mayor among the a.s.sistants, to each of whom is a.s.signed a specific department, such as that of streets, of sanitation, or of fire-protection. As a rule, the mayor reserves to himself the control of police. For the acts of the a.s.sistants, however, the mayor is directly responsible, and all acts, whether of the mayor or of the a.s.sistants, which relate to the interests of the general government are performed under the strictest surveillance of the prefectorial authorities. The mayor may be suspended from office for a month by the prefect, or for three months by the Minister of the Interior; and he may be removed from office altogether by order of the President.