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 Régime, 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'État_, 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 _maîtres des
requêtes_, 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 préfecture_, 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.
                   Barthélemy, Traité élémentaire de droit
                   administratif (5th ed., Paris, 1908); H. Chardon,
                   L'administration de la France, les fonctionnaires
                   (Paris, 1908); G. Jèze, Les principes généraux du
                   droit administratif (Paris, 1904); and J. L. Aucoc,
                   Conférences sur l'administration et le droit
                   administratif (3d ed., Paris, 1885). Mention may be
                   made also of E. J. Laferrière, Traité de la
                   jurisdiction administrative et des recours
                   contentieux (Paris, 1887-1888), and Varagnac, Le
                   Conseil d'État et les projets de réforme, 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 régimes which, between
1800 and the present day, have filled their successive places in the
history of the nation.

*375. Local Government Under the Old Régime.*--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 _généralité_ and the commune. The _généralité_ 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 _généralités_ 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
                   régime (Paris, 1880); A. Luchaire, Les communes
                   françaises (Paris, 1890); H. Barthélemy, Traité de
                   droit administratif (5th ed., Paris, 1908); A.
                   Esmein, Histoire du droit français (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 Régime 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 _généralités_ 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 Décret sur les
                   Municipalités of December 14, 1789, see Hélie;
                   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
régime, 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 Régime, 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 système administratif
                   français, 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 rôle in moulding
                   systems of local administration among the nations."
                   Munro, Government of European Cities, 7.]

                   [Footnote 511: The texts of these acts are in
                   Hélie, 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 régime. 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 régime than any
other principal state of western Europe.[513]

                   [Footnote 512: Text in J. Duvergier, Collection
                   complète des lois, décrets, ordonnances,
                   réglements, avis du conseil d'état (Paris,
                   1834-1907), LXXXIV., 99-148.]

                   [Footnote 513: On the French administrative system
                   two admirable general works are H. Barthélemy,
                   Traité de droit administratif (5th ed., Paris,
                   1908), and A. Esmein, Histoire du droit français
                   (8th ed., Paris, 1908). An older treatise of value
                   is E. Monnet, Histoire de l'administration
                   provinciale, départementale 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 préfecture_, 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 général_,
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 départementale_, 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 réforme administrative; l'organisation
                   régionale en France, in _Revue Politique et
                   Parlementaire_, Nov. 10, 1909. Cf. A. Brette, La
                   réforme des départements à propos d'une proposition
                   de loi, ibid. On the department as at present
                   constituted the monumental treatise is G. Bouffet
                   et L. Périer, Traité du départements 2 vols.
                   (Paris, 1894-1895). In M. Laferrière, Loi organique
                   départementale du 10 Août 1871 (Paris, 1871) is an
                   annotated copy of the organic statute of 1871. See
                   also G. Dethan, De l'organisation des conseils
                   généraux (Paris, 1889); A. Nectoux, Des
                   attributions des conseillers généraux (Paris,
                   1895); and P. Chardenet, Les élections
                   départementales (Paris, 1895). An excellent brief
                   statement will be found in M. Block, Dictionnaire
                   de l'administration française (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 française, 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 régime 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
rôle 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
_arrêtés_, 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 assistants, to each of whom is assigned 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 assistants, however, the mayor is
directly responsible, and all acts, whether of the mayor or of the
assistants, 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.

Despite the restrictions which are placed upon it, the commune remains
the true focus of local life in France.[518] Its activities, on a
sufficiently petty scale though they not infrequently are, run the (p. 351)
gamut of finance, commerce, industry, education, religion, and
politics. So strong is the communal spirit that public sentiment will
acquiesce but rarely in the suppression of a commune, or even in the
union of two or more diminutive ones; and, in truth, the code of 1884
recognized the fixity of communal identity by permitting changes of
communal boundaries to be undertaken by the departmental authorities
only after there shall have been held an _enquête_ and local
susceptibilities shall have been duly consulted. Save by special
decree of the President of the Republic, not even the name of a
commune may be altered.

                   [Footnote 518: Among general treatises on the
                   French commune may be mentioned M. Block,
                   Entretiens sur l'administration; la commune (Paris,
                   1884); L. Bequet, Traité de la commune (Paris,
                   1888); P. Andre and F. Marin, La loi sur
                   l'organisation municipale du 5 avril 1884 (Paris,
                   1884); and F. Grelot, Loi du 5 avril 1884 (Paris,
                   1889). The best and most recent extensive work is
                   L. Morgand, La loi municipale, 2 vols. (7th ed.,
                   Paris, 1907). The most convenient brief discussion
                   in French is in Block, Dictionnaire de
                   l'administration française, I., 738-852. In English
                   a good description is in A. Shaw, Municipal
                   Government in Continental Europe (New York, 1897),
                   and a fuller and more recent one in W. B. Munro,
                   The Government of European Cities, 1-108. On
                   municipal elections the best work is M. J.
                   Saint-Lager, Élections municipales (6th ed., Paris,
                   1904). Worthy of mention are Chardenet, Panhard,
                   and Gérard, Les élections municipales (Paris,
                   1896), and J. Dorlhac, De l'électorat politique:
                   étude sur la capacité électorale et les conditions
                   d'exercise du droit de vote (Paris, 1890). An
                   excellent study is P. Lavergne, Du pouvoir central
                   et des conseils municipaux, in _Revue Générale
                   d'Administration_, 1900. See also A. G. Desbats, Le
                   budget municipal (Paris, 1895); M. Peletant, De
                   l'organisation de la police (Dijon, 1899); and R.
                   Griffin, Les biens communaux en France (Paris,
                   1899). On the government of Paris the reader may be
                   referred to G. Artigues, Le régime municipal de la
                   ville de Paris (Paris, 1898), and M. Block,
                   L'Administration de la ville de Paris et du
                   département de la Seine (Paris, 1898). Excellent
                   bibliographies are printed in Munro, _op. cit._,
                   380-389, and in Block, Dictionnaire, I., 850-852.]

PART IV. ITALY                                                     (p. 353)

CHAPTER XIX

CONSTITUTIONAL DEVELOPMENT IN THE NINETEENTH CENTURY

I. THE ERA OF NAPOLEON

*386. Italy in the Later Eighteenth Century.*--The dominant forces in
the politics of Europe since the French Revolution have been the twin
principles of nationality and democracy; and nowhere have the fruits
of these principles been more strikingly in evidence than in the long
disrupted and misgoverned peninsula of Italy. The awakening of the
Italian people to a new consciousness of unity, strength, and
aspiration may be said to date from the Napoleonic invasion of 1796,
and the first phase of the _Risorgimento_, or "resurrection," may,
therefore, be regarded as coincident with the era of French
domination, i.e., 1796-1814. At the opening of this period two
non-Italian dynasties shared the dominion of much the larger portion
of Italy. To the Austrian Hapsburgs belonged the rich duchies of Milan
(including Mantua) and Tuscany, together with a preponderating
influence in Modena. To the Spanish Bourbons belonged the duchy of
Parma and the important kingdom of Naples, including Sicily. Of
independent states there were six--the kingdom of Sardinia (comprising
Piedmont, the island of Sardinia, and, nominally, Savoy and Nice),
where alone in all Italy there lingered some measure of native
political vitality; the Papal States; the petty monarchies of Lucca
and San Marino; and the two ancient republics of Venice and Genoa,
long since shorn of their empires, their maritime power, and their
economic and political importance. All but universally absolutism held
sway, and in most of the states, especially those of the south,
absolutism was synonymous with corruption and oppression.

*387. The Cisalpine Republic, 1797.*--During the two decades which
comprehended the public career of Napoleon it was the part of the
French to overturn completely the long existing political arrangement
of Italy, to abolish altogether the dominion of Austria and to
substitute therefor that of France, to plant in Italy a wholly new and
revolutionizing set of political and legal institutions, and, quite
unintentionally, to fan to a blaze a patriotic zeal which through  (p. 354)
generations had smouldered almost unobserved. The beginning of these
transformations came directly in consequence of the brilliant
Napoleonic incursion of 1796. One by one, upon the advance of the
victorious French, were detached the princes who, under English and
Austrian tutelage, had been allied hitherto against France. The king
of Naples sought an armistice; the Pope made peace; at Arcole and
Rivoli the Austrian power was shattered. October 16, 1796, there was
proclaimed, with the approval of the conqueror, a Cispadane Republic,
including Modena, Reggio, Ferrara, and Bologna; and March 27, 1797,
there was promulgated for the new state a constitution which, after
having been adopted by representatives of the four districts, had been
ratified by a vote of the people. This constitution--the first in the
history of modern Italy--was modelled immediately upon the French
instrument of 1795. It provided for a legislative council of sixty
members, with exclusive power to propose measures, another of thirty
members, with power to approve or reject measures, and an executive
directory of three, elected by the legislative bodies.

In Lombardy a similar movement produced similar results. Through the
spring and early summer of 1797 four commissions, constituted by
Napoleon, worked out a constitution which likewise reproduced all of
the essential features of the French model, and, July 9, the
Transpadane Republic was inaugurated, with brilliant ceremony, at
Milan. Provision was made for a directory and for two legislative
councils consisting of one hundred sixty and eighty members
respectively; and the first directors, representatives, and other
officials were named by Napoleon. At the urgent solicitation of the
Cispadanes the two republics were united, July 15, and upon the
combined commonwealth was bestowed the name of the Cisalpine
Republic.[519] During the preceding May the venerable but helpless
Venetian republic had been crushed, and when, in the treaty of Campo
Formio, October 17, 1797, Austria was brought to the point of
recognizing the new Cisalpine state, she was compensated in some
degree by being awarded the larger part of the Venetian territories,
including the city of Venice.[520]

                   [Footnote 519: The Cisalpine constitution was
                   amended September 1, 1798, when there was
                   introduced in the republic the French system of
                   administrative divisions.]

                   [Footnote 520: E. Bonnal de Ganges, La chute d'une
                   république (Paris, 1885).]

*388. The Ligurian, Roman, and Parthenopæan Republics, 1797-1799.*--In
the meantime, in June, 1797, the ancient republic of Genoa had
undergone a remodelling. The ruling oligarchy, driven from power by
Napoleon, gave place to a democracy of a moderate type, the        (p. 355)
legislative functions being intrusted to two popularly elected
chambers, while the executive power was vested in a doge and twelve
senators; and to the new commonwealth, French in all but name, was
given the designation of the Ligurian Republic. The Ligurian
constitution was accepted by the people December 2, 1797. During the
winter of 1797-1798 the French Directory, openly hostile to the
papacy, persistently encouraged the democratic party at Rome to
overthrow the temporal power and to set up an independent republic.
February 15, 1798, with the aid of French arms, the democrats secured
the upper hand, assembled in the Forum, declared for the restoration
of the Roman Republic, and elected as head of the state a body of
seven consuls. The aged pontiff, Pius VI., was maltreated and
eventually transported to France. For the new Tiberine, or Roman,
Republic was promulgated, March 20, 1798, a constitution providing for
the customary two councils--a Senate of thirty members and a Tribunate
of sixty--and a directory, christened a consulate, consisting of five
consuls elected by the councils. Within a twelvemonth thereafter
(January 23, 1799), following a clash of arms between the French and
the Neapolitan sovereign, Ferdinand IV., Naples was taken and the
southern kingdom was converted into the Parthenopæan Republic. A
constitution was there promulgated providing for a directory of five
members, a Senate of fifty, possessing exclusive right of legislative
initiative, and a Tribunate of one hundred twenty.[521]

                   [Footnote 521: For an interesting portrayal of the
                   workings of republican idealism in the Neapolitan
                   republic see Fisher, Republican Tradition in
                   Europe, 150-157.]

*389. Constitutional Revisions.*--During the absence of Napoleon on the
Egyptian expedition the armies of France suffered repeated reverses in
Italy, and by the end of 1799 all that had been gained for France
seemed to be, or about to be, lost. By the campaign which culminated
at Marengo (June 14, 1800), however, Napoleon not only clinched his
newly won position in France but brought Italy once more to his feet.
Under the terms of the treaty of Lunéville (February 9, 1801) Austria
recognized the reconstituted Cisalpine and Ligurian republics, while
Modena and Tuscany reverted to French control, and French ascendancy
elsewhere was securely established. September 21, 1802, Piedmont was
organized in six departments and incorporated in the French Republic.
During the winter of 1802-1803 the constitutions of the Cisalpine and
Ligurian republics were remodelled in the interest of that same
autocratic domination which already was fast ripening in France. In
each republic were established at first three bodies--an executive
_consulta_,[522] a legislature of 150 members, and a court--which
were chosen by three electoral colleges comprising (1) the         (p. 356)
_possidenti_, or landed proprietors, (2) the _dotti_, or scholars and
ecclesiastics, and (3) the _commercianti_, or merchants and traders;
but the legislature could be overridden completely by the _consulta_,
and the _consulta_ was little more than the organ of Napoleon.
Incidentally, the Cisalpine Republic at this point was renamed the
Italian Republic. Within a twelvemonth the new constitutions, proving
too democratic, were revised in such a manner that for the legislative
body was substituted a senate of thirty members presided over by a
doge, in which were concentrated all political and administrative
powers.

                   [Footnote 522: An advisory council of state,
                   consisting of eight members.]

*390. The Kingdom of Italy (1805) and the Napoleonic Kingdom of Naples,
1807.*--The stipulation of the treaty of Lunéville to the effect that
the Italian republics should remain entirely independent of France was
all the while disregarded. Politically and commercially they were but
dependencies, and, following the proclamation of the French empire
(May 18, 1804), the fact was admitted openly. To Napoleon it seemed
incongruous that an emperor of the French should be a patron of
republics. How meager was the conqueror's concern for the political
liberty of the Italians had been demonstrated many times, never more
forcefully than in the cynical treatment which he accorded Venice. No
one knew better, furthermore, how ill-equipped were the Italians for
self-government. Gradually, therefore, there was framed a project for
the conversion of the Italian Republic into a kingdom which should be
tributary to France. Napoleon's desire was that his eldest brother,
Joseph, should occupy the throne of this kingdom. But Joseph, not
caring to jeopardize his chances of succession in France, demurred, as
did also the younger brother, Louis. The upshot was that by a
constitutional statute of March 17, 1805, the Emperor caused himself
to be called to the throne of Italy, and May 26 following, in the
cathedral at Milan, he placed upon his own head the iron crown of the
old Lombard kings. The sovereign's step-son, Eugène Beauharnais, was
designated regent. In June of the same year, in response to a petition
which Napoleon himself had instigated, the Ligurian Republic was
proclaimed an integral part of the French empire. The annexation of
Parma and Piacenza promptly followed.

Against the coalition of Great Britain, Russia, Austria, and Naples,
which was prompted immediately by the Ligurian annexation, Napoleon
was completely successful. By the treaty of Pressburg (December 26,
1806) Austria ceded to the Italian kingdom her portion of Venetia,
together with the provinces of Istria and Dalmatia.[523] Following a
vigorous campaign conducted by Joseph Bonaparte, the restored Bourbon
family was driven again from Naples, whereupon Joseph allowed      (p. 357)
himself to be established there as king. In 1808 he was succeeded by
Napoleon's ambitious marshal and brother-in-law Murat. From Bayonne,
Joseph issued a constitution for his former subjects, providing for a
council of state of from twenty-six to thirty-six members and a single
legislative chamber of one hundred members, of whom eighty were to be
named by the king and twenty were to be chosen by electoral colleges.
Not until 1815, however, and then but during the space of a few weeks,
was this instrument actually in operation.

                   [Footnote 523: The incorporation of Dalmatia with
                   the kingdom of Italy was but temporary.]

*391. The End of French Dominance.*--Finally, there were brought under
complete control the papal territories. Following prolonged friction
with the Pope, Napoleon first of all (April 2, 1808) annexed to the
kingdom of Italy the papal march of Ancona and the duchies of Urbino,
Macerata, and Camerina, and then (by decrees of May 17, 1809, and
February 17, 1810) added to the French empire Rome itself and the
_Patrimonium Petri_. The Roman territory was divided into two
departments, and in them, as in all of the Italian provinces which
fell under Napoleon's rule, a thoroughgoing French system of law and
administration was established. To all of the tributary districts
alike were extended the Code Napoléon, and in them were organized
councils, courts, and agencies of control essentially analogous to
those which comprised the Napoleonic governmental régime in France. In
them, likewise, were undertaken public works, measures for public
education, and social reforms similar to those which in France
constituted the most permanent and the most beneficent aspects of the
Napoleonic domination. For the first time since the age of Justinian
the entire peninsula was brought under what was in fact, if not in
name, a single political system.

If the rise of French power in Italy had been brilliant, however, the
collapse of that power was speedy and complete. It followed hard upon
Napoleon's Russian campaign and the defeat at Leipzig. The final
surrender, consequent upon Napoleon's first abdication was made April
16, 1814, by the viceroy Beauharnais, whereupon the Austrians resumed
possession in the north, the Bourbons in the south, and the whole
problem of permanent adjustment was given over to the congress of the
powers at Vienna.[524]

                   [Footnote 524: For brief accounts of the Napoleonic
                   régime in Italy see Cambridge Modern History, IX.,
                   Chap. 14; B. King, A History of Italian Unity
                   (London, 1899), I., Chap. 1. Works of value dealing
                   with the subject include P. Gaffarel, Bonaparte et
                   les républiques italiennes, 1796-1799 (Paris,
                   1895); A. Dufourcq, Le régime jacobin en Italie,
                   1796-1799 (Paris, 1900); F. Lemmi, Le origini del
                   risorgimento italiano (Milan, 1906); G. Sabini, I
                   primi esperimenti costituzionali in Italia,
                   1797-1815 (Turin, 1911); and R. M. Johnston, The
                   Napoleonic Empire in Southern Italy, 2 vols.
                   (London, 1904). An older work is E. Ramondini,
                   L'Italia durante la dominazione francese (Naples,
                   1882).]

II. THE RESTORATION AND THE REVOLUTION OF 1848                     (p. 358)

*392. Italy in 1815.*--By the Final Act of the Congress of Vienna, June
9, 1815, Italy was remanded to a status such that the name of the
peninsula could be characterized with aptness by Metternich as merely
a geographical expression. In essentials, though not in all respects,
there was a return to the situation of pre-Napoleonic times. When the
bargainings of the diplomats were concluded it was found that there
remained, in all, ten Italian states, as follows: the kingdom of
Sardinia, Lombardo-Venetia, Parma, Modena, Lucca, Tuscany, Monaco, San
Marino, the kingdom of Naples, and the States of the Church. To the
kingdom of Sardinia, reconstituted under Victor Emmanuel I., France
retroceded Nice and Savoy, and to it was added the former republic of
Genoa. Lombardo-Venetia, comprising the duchy of Milan and all of the
continental possessions of the former Venetian republic, including
Istria and Dalmatia, was given into the possession of Austria.[525]
Tuscany was restored to the grand-duke Ferdinand III. of
Hapsburg-Lorraine; the duchy of Modena, to Francis IV., son of the
archduke Ferdinand of Austria; Parma and Piacenza were assigned to
Maria Louisa, daughter of the Austrian emperor and wife of Napoleon;
the duchy of Lucca, to Maria Louisa of Bourbon-Parma. In the south,
Ferdinand IV. of Naples, restored to all of his former possessions,
was recognized under the new title of Ferdinand I. And, finally, Pope
Pius VII., long held semi-prisoner by Napoleon at Fontainebleau,
recovered the whole of the dominion which formerly had belonged to the
Holy See.

                   [Footnote 525: By decree of April 24, 1815, these
                   territories were erected into a kingdom under
                   Austrian control, though possessing a separate
                   administration.]

Respecting the entire arrangement two facts are obvious. The first is
that there was not, in the Italy of 1815, the semblance, even, of
national unity. The second is that the preponderance of Austria was
scarcely less thoroughgoing than in Napoleon's time had been that of
the French. Lombardo-Venetia Austria possessed outright; Tuscany,
Modena, and Parma were ruled by Austrian princes; Ferdinand of Naples
was an Austrian ally, and he had pledged himself not to introduce in
his possessions principles of government incompatible with those
employed by the Austrians in the north; while even Victor Emmanuel of
Sardinia--the only important native sovereign, aside from the Pope, in
the peninsula--was pledged to a perpetual Austrian alliance.[526]

                   [Footnote 526: W. R. Thayer, The Dawn of Italian
                   Independence, 2 vols. (Boston, 1893), I.,
                   116-178.]

*393. Foreshadowings of Unity.*--"Italy," wrote Napoleon some      (p. 359)
time after his banishment to St. Helena, "isolated between her natural
limits, is destined to form a great and powerful nation. Italy _is_
one nation; unity of language, customs, and literature, must, within a
period more or less distant, unite her inhabitants under one sole
government. And, without the slightest doubt, Rome will be chosen by
the Italians as their capital."[527] At the time when this prophecy
was written the unification of Italy appeared, upon the surface, the
most improbable of events. It was, none the less, impending, and to it
Napoleon must be adjudged to have contributed in no unimportant
measure. In the words of a recent writer, "the brutalities of
Austria's white coats in the north, the unintelligent repression then
characteristic of the house of Savoy, the petty spite of the duke of
Modena, the mediæval obscurantism of pope and cardinals in the middle
of the peninsula, and the clownish excesses of Ferdinand in the south,
could not blot out from the minds of the Italians the recollection of
the benefits derived from the just laws, vigorous administration, and
enlightened aims of the great emperor. The hard but salutary training
which they had undergone at his hands had taught them that they were
the equals of the northern races both in the council chamber and on
the field of battle. It had further revealed to them that truth, which
once grasped can never be forgotten, that, despite differences of
climate, character, and speech, they were in all essentials a
nation."[528] It is not too much to say that Napoleon sowed the seed
of Italian unity.

                   [Footnote 527: M. Cesaresco, The Liberation of
                   Italy (London, 1895), 3.]

                   [Footnote 528: J. Holland Rose, in Encyclopædia
                   Britannica, 11th ed., XV., 48. See also Fisher, The
                   Republican Tradition in Europe, 158-159.]

*394. Attempted Revolution, 1820-1832.*--From 1815 to 1848 Austrian
influence, shaped largely by Metternich, was everywhere reactionary,
and during this prolonged period there was no government anywhere in
Italy that was not of the absolutist type. No one of the states had a
constitution, a parliament, or any vestige of popular political
procedure. In July, 1820, Ferdinand of Naples was compelled by a
revolutionary uprising to promulgate a constitution which was
identical with that forced in the same year upon Ferdinand VII. of
Spain. This ready-made instrument provided for a popularly elected
parliament of one chamber, upon which were conferred large powers; a
council of state composed of twenty-four members to advise the king;
an independent judiciary; and a parliamentary deputation of seven
members elected by the parliament, whose duty it was, in the event of
the dissolution of parliament, to safeguard the observance of the
constitution. In March, 1821, revolution broke out in Piedmont and,
after the mild-tempered king, Victor Emmanuel, had abdicated in    (p. 360)
favor of his brother, Charles Albert, a temporary regent, the Prince
of Carignano, under pressure, conceded to the people a replica of the
Spanish fundamental law. In both Naples and Piedmont, however, the
failure of the progressives was complete. The reformers proved to be
lacking in unity of purpose, and when, under authorization of the
greater continental powers, Austria intervened, every gleam of
constitutionalism was promptly snuffed out. Similarly, in 1831-1832,
there was in Modena, Parma, and the Papal States, widespread
insurrection, and with rather more evidence of a growing national
spirit; but again, with Austrian assistance, the outbreaks were
suppressed.[529]

                   [Footnote 529: Cambridge Modern History, X., Chap.
                   4; Johnston, Napoleonic Empire in Southern Italy,
                   II., Chap. 4; Thayer, Dawn of Italian Independence,
                   I., 215-278.]

*395. The Revolution of 1848 and the New Constitutions.*--The turning
point came with the great year of revolution, 1848. During the
thirties and forties, by public agitation, by the organization of
Mazzini's "Young Italy," by the circulation of patriotic literature,
and in a variety of other ways, the ground was prepared systematically
for the _risorgimento_ upon which the patriots and the prophets had
set their hearts. In 1846 a liberal-minded pope, Pius IX., instituted
a series of reforms, and the example was followed forthwith by the
princes of Piedmont (Sardinia) and Tuscany. In January, 1848,
revolution broke out afresh in Naples and within a month Ferdinand II.
was obliged to yield to public demand for a constitution. The
instrument, promulgated February 10, provided for a legislative body
consisting of a chamber of peers, appointed by the king for life, and
a chamber of deputies, elected by the people. February 15 the
sovereign of Tuscany, Leopold II., granted to his subjects a
constitution of a similar character, making provision for a complete
representative system.

February 5 the municipality of Turin, voicing a demand in which many
of the nobility and high officials of state concurred, petitioned
Charles Albert of Piedmont for the grant of a constitution. Three days
subsequently, at the conclusion of a series of secret sessions of his
council, the sovereign announced that "of his free and entire will" he
believed the time to have come for an extension to his subjects of a
full-fledged representative system of government, and March 4 there
was promulgated a remarkable instrument--the _Statuto fondamentale del
Regno_, modelled on the amended French Charter of 1830--which, with
absolutely no modification of text, survives to the present day as the
constitution of the Italian kingdom.[530] March 14 there was       (p. 361)
issued by the Pope an instrument known as the _Statuto fondamentale
del Governo temporale_, by which were constituted two legislative
bodies--a high council and a chamber of deputies--and a council of
state, composed of ten members and twenty-four advisors, to which was
committed the task of preparing measures. Bills passed by the
parliament were to be submitted to the Supreme Pontiff, who, after
their discussion in consistory, should extend to them, or withhold
from them, final approval. Before the year was far advanced the news
of the overthrow of Louis Philippe, of the uprising in Germany, and of
the fall of Metternich plunged the whole of Italy afresh in
insurrection. Under the pressure of popular demand the Pope and the
King of Naples sent troops to aid the northern states in the
liberation of the peninsula from Austrian despotism, and for a time,
under the leadership of the Piedmontese monarch, Charles Albert, all
Italy seemed united in a broadly nationalistic movement. July 10 a new
and extremely liberal constitution was adopted by a constituent
assembly in Naples, and, February 9, 1849, following a breach between
the Pope and the Roman parliament, the temporal power of the papacy
was once more swept away and Rome, under an appropriate constitution,
was proclaimed a republic.[531]

                   [Footnote 530: The nature of the governmental
                   system provided in this instrument will be
                   explained at length in the succeeding chapter.]

                   [Footnote 531: G. Garavani, La costituzione della
                   repubblica romana nel 1798 e nel 1849 (Fermo,
                   1910).]

*396. The Reaction.*--The reaction, however, was swift and seemingly all
but complete. At the earliest possible moment the king of Naples
withdrew from the war, revoked the constitution which he had granted,
and put the forces of liberalism to rout. With the assistance of
France, Austria, and Naples, the Pope extinguished the Roman republic
and re-established in all of its vigor the temporal power. By Austrian
arms one after another of the insurrectionary states in the north and
center was crushed, and Austrian influence in that quarter rose to its
former degree of ascendancy. Constitutionalism gave place to
absolutism, and the liberals, disheartened and disunited, were
everywhere driven to cover. Only in Piedmont, whose sovereign, after
the bitter defeat at Novara, had abdicated in favor of his son, Victor
Emmanuel II. (March 23, 1849), was there left any semblance of
political independence or civil liberty.[532]

                   [Footnote 532: Elaborate accounts of the revolution
                   of 1848 in Italy are contained in King, History of
                   Italian Unity, I., Chaps. 9-19, and Thayer, Dawn of
                   Italian Independence, II., Bks. 4-5. A good brief
                   account is Cambridge Modern History, XI., Chap. 4
                   (bibliography, pp. 908-913). A suggestive sketch is
                   Fisher, Republican Tradition in Europe, Chap. 9.]

III. THE ACHIEVEMENT OF UNIFICATION                                (p. 362)

*397. The Leadership of Piedmont.*--To all inducements to abrogate the
constitution which his father had granted Victor Emmanuel continued
deaf, and the logic of the situation began to point unmistakably to
Piedmont as the hope of the patriotic cause. After 1848 the building
of the Italian nation becomes, indeed, essentially the story of
Piedmontese organization, leadership, conquest, and expansion. Victor
Emmanuel, honest and liberal-minded, was not a statesman of the first
rank, but he had the wisdom to discern and to rely upon the
statesmanship of one of the most remarkable of ministers in the
history of modern Europe, Count Cavour. When, in 1850, Cavour entered
the Piedmontese ministry he was known already as an ardent advocate of
both constitutionalism and national unification, and after, in 1852,
he assumed the post of premier he was allowed virtually a free hand in
the prosecution of policies designed to contribute to a realization of
these ends. The original purpose of the king and of his minister was
to bring about the exclusion of Austrian influence from Italy and to
organize the various states of the peninsula into a confederacy under
the nominal leadership of the Pope, but under the real supremacy of
the sovereign of Piedmont. Ultimately the plan was so modified as to
contemplate nothing short of a unification of the entire country under
the control of a centralized, national, temporal government.

*398. The Annexations of 1859-1860.*--In 1855 Cavour signed an offensive
and defensive alliance with France, and in 1859 Piedmont, with the
connivance of her ally, precipitated war with Austria. According to an
understanding arrived at by Cavour and the Emperor Napoleon III. at
Plombières (June 20, 1858) Austria was to be expelled absolutely from
Italian soil; Lombardo-Venetia, the smaller duchies of the north, the
papal Legations, and perhaps the Marches, were to be annexed to
Piedmont, the whole to comprise a kingdom of Upper Italy; Umbria and
Tuscany were to be erected into a kingdom of Central Italy; the Pope
was to retain Rome and Ferdinand Naples; and the four states thus
constituted were to be formed into an Italian confederation. In the
contest which ensued the Austrians were roundly defeated, but their
only immediate loss was the ancient duchy of Lombardy. Despite
Napoleon's boast that he would free Italy to the Adriatic, Venetia was
retained yet seven years by the Hapsburgs. Under the terms of the
treaty of Zürich (November 10), in which were ratified the preliminaries
of Villafranca (July 11), Lombardy was annexed to Piedmont. Years  (p. 363)
before (June 8, 1848) a Lombard plebiscite upon the question of such
annexation had brought out an affirmative vote of 561,002 to 681.[533]

                   [Footnote 533: King, History of Italian Unity, II.,
                   Chap. 27.]

The gain arising from the annexation of Lombardy was in a measure
counterbalanced by the cession of Savoy and Nice to France, in
conformity with an agreement entered into before the war. In point of
fact, none the less, the benefits which accrued to Piedmont from the
Austrian war were enormous. Aroused by the vigor and promise of
Piedmontese leadership, a large portion of central Italy broke into
revolt and declared for union with Victor Emmanuel's dominion. In
September, 1859, four assemblies, representing the grand-duchy of
Tuscany, the duchies of Modena and Parma, and the Romagna (the
northern portion of the Papal States), met at Florence, Modena, Parma,
and Bologna, respectively, and voted unanimously for incorporation
with Piedmont. During March, 1860, the alternatives of annexation and
independence were submitted to the choice of the inhabitants of each
of these districts, all males of age being privileged to vote, with
the result of an aggregate of 792,577 affirmative votes in a total of
807,502. Under authority conferred by the Piedmontese parliament the
king accepted the territories, the formal proclamation of the
incorporation of Parma, Modena, and the Romagna being dated March 18,
and that of the incorporation of Tuscany, March 22. Deputies were
elected forthwith to represent the annexed provinces, and April 2,
1860, the enlarged parliament was convened at Turin. Within the space
of a year the population of the kingdom had been more than doubled. It
was now 11,000,000, or approximately half of that of the peninsula.

*399. Further Annexations: the Kingdom of Italy, 1861.*--Meanwhile the
programme of Cavour and the king had been broadened to comprise a
thoroughgoing unification of the entire country. With amazing rapidity
the task was carried toward completion. Aided by Garibaldi and his
famous Thousand, the people of Sicily and Naples expelled their
Bourbon sovereign, and, at the plebiscite of October 21, 1860, they
declared, by a vote of 1,734,117 to 10,979, for annexation to
Piedmont. At the same time Umbria and the Marches were occupied by the
Piedmontese forces, leaving to the Pope nothing save the Eternal City
and a bit of territory immediately surrounding it. By votes of 97,040
to 380 and 133,077 to 1,212, respectively, these districts declared
for annexation, and, December 17, 1860, a royal decree announced their
final incorporation, together with that of Naples. January 27, 1861,
general elections were held, and, February 18, there was convened  (p. 364)
at Turin a new and enlarged parliament by which, March 18, was
proclaimed the united Kingdom of Italy. Over the whole of the new
territories was extended the memorable _Statuto_ granted to Piedmont
by Charles Albert thirteen years before, and Victor Emmanuel II. was
acknowledged "by the grace of God and the will of the nation, King of
Italy."[534]

                   [Footnote 534: King, History of Italian Unity, II.,
                   Chaps. 29-32.]

*400. The Completion of Unification, 1866-1871.*--It remained but to
consolidate the kingdom and to accomplish the annexation of the two
Italian districts, Venetia and Rome, which were yet in foreign hands.
Venetia was acquired in direct consequence of Italy's alliance with
Prussia against Austria in 1866. A plebiscite of October 21-22, 1866,
following the enforced cession of Venetia by Austria, October 3,
yielded a vote of 647,246 to 47 for annexation. The union was
sanctioned by a decree of November 4, 1866, and ratified by a law of
July 18, 1867. The acquisition of Rome was made possible four years
later by the exigencies of the Franco-German war. The conviction had
been ripening that eventually Rome must be made the kingdom's capital,
and when, in 1870, there was withdrawn from the protection of the
papacy the garrison which France had maintained in Italy since 1849,
the opportunity was seized to follow up fruitless diplomacy with
military demonstrations. September 20 the troops of General Cadorna
forced an entrance of the city and the Pope was compelled to
capitulate. October 2 the people declared, by a vote of 133,681 to
1,507, for annexation; October 9 the annexation was proclaimed; and
December 31 it was ratified by act of parliament. The guarantees of
independence to be accorded the papacy were left to be determined in a
subsequent statute.[535] By an act of February 3, 1871, the capital of
the kingdom--already, in 1865, transferred from Turin to Florence--was
removed to Rome; and in the Eternal City, November 27 following, was
convened the eleventh parliament since the revolution of 1848, the
fourth since the proclamation of the kingdom of Italy, the first since
the completion of Italian unity.[536]

                   [Footnote 535: The resulting measure, the Law of
                   Papal Guarantees, was enacted May 13, 1871. See p.
                   388.]

                   [Footnote 536: For a brief account of the final
                   stages in the unification of Italy see Cambridge
                   Modern History, XI., Chaps. 14, 19. The best
                   presentation of the entire subject is that in the
                   two volumes of King, History of Italian Unity,
                   1814-1871. Other works of value are W. J. Stillman,
                   The Union of Italy, 1815-1895 (Cambridge, 1898); J.
                   Probyn, Italy, 1815-1890 (London, 1884); M.
                   Cesaresco, The Liberation of Italy (New York,
                   1894); P. Orsi, L'Italia moderna (Milan, 1901); F.
                   Bertolini, Storia d'Italia dal 1814 al 1878 (Milan,
                   1880-1881); and E. Sorin, Histoire de l'Italie
                   depuis 1815 jusqu'à la mort de V. Emm. (Paris,
                   1910). Among biographies mention may be made of G.
                   Godkin, Life of Victor Emmanuel II. (2d ed.,
                   London, 1880); M. Cesaresco, Cavour (London, 1898);
                   D. Zanichelli, Cavour (Florence, 1905); B. King,
                   Mazzini (London, 1902). A very valuable biography,
                   which indeed comprises virtually a history of the
                   period 1848-1861, is W. R. Thayer, Count Cavour, 2
                   vols. (Boston, 1911). The monumental Italian work
                   in the field is C. Tivaroni, Storia critica del
                   risorgimento italiano, 9 vols. (Turin, 1888-1897).
                   The principal documentary collection is N. Bianchi,
                   Storia documentata della diplomazia Europea in
                   Italia dall' anno 1814 all' anno 1861, 8 vols.
                   (Turin, 1865-1872). Invaluable are L. Chiala,
                   Lettere del Conte di Cavour, 7 vols. (Turin,
                   1883-1887), and D. Zanichelli, Scritti del Conte di
                   Cavour (Bologna, 1892). For full bibliography see
                   Cambridge Modern History, XI., 908-913.]

IV. THE CONSTITUTION                                               (p. 365)

*401. The Statuto.*--The formal constitution of the kingdom of Italy
to-day is the _Statuto fondamentale del Regno_ granted March 4, 1848,
by Charles Albert to his Piedmontese subjects. To each of the
territories successively annexed to the Piedmontese kingdom this
instrument was promptly extended, on the basis of popular
ratifications, or plebiscites; and when, in 1861, the kingdom of
Piedmont was converted into the kingdom of Italy, the fundamental law,
modified in only minor respects, was continued in operation. The
_Statuto_ was granted originally as a royal charter, and its author
seems to have expected it to be final, at least until it should have
been replaced as a whole by some other instrument. At the same time,
there is little reason to doubt that from the outset there was
contemplated the possibility of amendment through the agencies of
ordinary legislation. In any case, there was put into the instrument
no stipulation whatsoever relating to its revision, and none has ever
been added. Upon a number of occasions since 1861 possible
modifications of the constitutional text have been suggested, and even
debated, but no one of them has been adopted. But this does not mean
that the constitutional system of Italy has stood all the while
unchanged. On the contrary, that system has exhibited remarkable
vitality, growth, and adaptive capacity. In Italy, as in other states
the constitution as it exists in writing is supplemented in numerous
important ways by unwritten custom, and Italian jurists are now
substantially agreed that custom is legitimately to be considered a
source of public law.

*402. Legislative Amendment.*--A more important matter, however, is the
extension and the readaptation of the constitution through
parliamentary enactment. In the earlier days of the kingdom there was
a disposition to observe rather carefully in practice the distinction
between functions and powers of a legislative, and those of a
constitutional, character. Gradually, however, the conviction grew
that the constitutional system of the nation might be modified     (p. 366)
through the processes of ordinary legislation, and in Italy to-day the
theory of parliamentary omnipotence is scarcely less firmly entrenched
than it is in Great Britain. The parliamentary chambers have never
directly avowed a purpose to amend a single article of the _Statuto_,
but numerous measures which they have enacted have, with clear intent,
taken from the instrument at some points, have added to it at others,
and have changed both its spirit and its application. Care has been
exercised that such enactments shall be in harmony with the public
will, and in practice they are rarely brought to a final vote until
the country shall have been given an opportunity to pass upon them at
a general election. What has come to be the commonly accepted doctrine
was stated forcefully, in the session of July 23, 1881, by Crispi, as
follows: "I do not admit the intangibility of the _Statuto_. Statutes
are made to prevent governments from retrograding, not from advancing.
Before us there can be nothing but progress.... If we retain immutable
the fundamental law of the state, we desire immobility, and should
throw aside all advances which have thus far been made by the
constituted authorities. I understand that in the _Statuto_ of Charles
Albert nothing is said of revision, and this was prudent. But how
should this silence be interpreted? It should be interpreted in the
sense that it is not necessary to the Italian Constitution that a
constituent assembly should be expressly convoked, but that Parliament
in its usual manner of operation is always constituent and
constituted. Whenever public opinion has matured a reform, it is the
duty of Parliament to accept it, even though the reform may bring with
it the modification of an article of the _Statuto_."[537] It is in
accord with the principles here enunciated that--to mention but a few
illustrations--the law of December 6, 1865, regulating the
organization of the judiciary, the Law of Papal Guarantees of 1871,
and the measures of 1882 and 1895 overhauling and extending the
franchise, were placed upon the statute books.

                   [Footnote 537: Quoted by G. A. Ruiz, The Amendments
                   to the Italian Constitution, in _Annals of the
                   American Academy of Political and Social Science_,
                   Sept., 1895, 38.]

*403. Nature of the Constitution.*--The _Statuto_, in eighty-four
articles, is an instrument of considerable length. It deals,
successively, with the Crown, the rights and duties of citizens, the
Senate, the Chamber of Deputies, the Ministers, the Judiciary, and
matters of a miscellaneous character. The bill of rights contained in
Articles 24-32 guarantees to all inhabitants of the kingdom equality
before the law, liberty of person, inviolability of domicile and of
property, freedom of the press, exemption from non-parliamentary
taxation and, with qualifications, freedom of assembly. It is      (p. 367)
constantly to be borne in mind, however, that, so overlaid is the
_Statuto_ with statutory enactments and with custom, that one cannot
apprehend adequately the working constitution of the kingdom to-day,
in respect to either general principles or specific governmental
organs, through an examination of this document alone. In the language
of an Italian publicist, the Italian constitution no longer consists
of the Statute of Charles Albert. This forms simply the beginning of a
new order of things. Many institutions have been transformed by laws,
decrees, usages, and neglect, whence the Italian constitution has
become cumulative, consisting of an organism of law grouped about a
primary kernel which is the _Statuto_.[538]

                   [Footnote 538: Ruiz, Amendments to the Italian
                   Constitution, _loc. cit._, 57. The text of the
                   _Statuto_ appears in P. Coglio e Malchiodi, Codice
                   Politico Amministrativo. Raccolta completa di tutte
                   le leggi e regolamenti concernenti la pubblica
                   amministrazione nei suoi rapporti politici e
                   amministrativi (6th ed., Florence, 1907), and in V.
                   Gioia, Le leggi di unificazione amministrativa
                   precedute dalla legge fondamentale del regno, 2
                   vols. (Palermo, 1879). It is printed also in
                   Lowell, Governments and Parties, II., 346-354.
                   There is a French version in F. R. Dareste, Les
                   constitutions modernes, 2 vols. (Paris, 1883) I.,
                   550-560. There is an English translation in Dodd,
                   Modern Constitutions, II., 5-16, and another, by S.
                   M. Lindsay and L. S. Rowe, in _Annals of the
                   American Academy of Political and Social Science_,
                   Nov., 1894. The Codice Politico Amministrativo
                   contains a good collection of statutes, ordinances,
                   and administrative regulations. The most
                   comprehensive work on Italian constitutional law
                   which has been written is F. Racioppi and I.
                   Brunelli, Commento allo statuto del regno, 3 vols.
                   (Turin, 1909). Among other treatises the following
                   are of principal value: G. Arangio Ruiz, Storia
                   costituzionale del regno di Italia, 1848-1898
                   (Florence, 1898); E. Brusa, Das Staatsrecht des
                   Königreichs Italien (Leipzig, 1892), in
                   Marquardsen's Handbuch; E. del Guerra,
                   L'Amministrazione pubblica in Italia (Florence,
                   1893); and, for briefer treatment, G. Mosca,
                   Appunti di diritto costituzionale (Milan, 1908) and
                   I. Tambaro, II diritto costituzionale italiano
                   (Milan, 1909).]

CHAPTER XX                                                         (p. 368)

THE ITALIAN GOVERNMENTAL SYSTEM

I. THE CROWN AND THE MINISTRY

*404. Status of the Sovereign.*--The constitutional system of Italy
comprises, according to the phraseology of the _Statuto_, a
"representative monarchical government." The throne is hereditary,
after the principle of the Salic Law; that is, it may be inherited
only by and through males. Elaborate provision is made for the
exercise of regal authority in the event of the minority or the
incapacity of the sovereign. During a minority (which terminates with
the close of the king's eighteenth year) the prince who stands next in
the order of succession, provided he be twenty-one years of age, is
authorized to act as regent. In the lack of male relatives the regency
devolves upon the queen-mother, and in default of a queen-mother the
regent is elected by the legislative chamber.[539] Upon ascending the
throne, the king is required to take an oath in the presence of the
legislative chambers faithfully to maintain and observe the
constitution of the realm. The monarch is declared to be sacred and
inviolable in his person, and there is settled upon him a civil list
of 16,050,000 lire, of which amount at present, however, the sum of
one million lire is repaid annually to the state. Since 1870 the royal
residence has been the Palazzo del Quirinale, a palace which for
generations, by reason of its elevated and healthful situation, was
much frequented by the popes.

                   [Footnote 539: Arts. 11-17. Dodd, Modern
                   Constitutions, II., 6.]

*405. Powers and Functions of the Crown.*--On paper, the powers of the
crown appear enormous; in reality they are much less considerable, as
is inevitably the fact wherever monarchy is tempered by
parliamentarism. In the king alone is vested, by the _Statuto_, the
executive power, and to him alone this power, in theory, still
belongs. The exercise of it, however, devolves almost wholly upon a
group of ministers, who are responsible, not to the crown, but to the
parliament. In no continental country has there been a more deliberate
or a more unreserved acceptance of the essential principles which
underlie the parliamentary system of Great Britain. No one of the  (p. 369)
three sovereigns of united Italy has ever sought for an instant to
establish anything in the nature of personal government. The principle
that the ministry shall constitute the working executive, and that it
shall be continually responsible to the lower chamber of Parliament,
has been so long observed in practice that it is now regarded as an
inflexible law of the constitution. Under these limitations, however,
the king approves and promulgates the laws, grants pardons and
commutes sentences, declares war, commands all military and naval
forces, concludes treaties, issues ordinances, creates senators, and
makes appointments to all offices of state.[540] By the _Statuto_ it
is provided that treaties involving financial obligations or
alterations of the territory of the state shall be effective only
after receiving the sanction of the legislative chambers. In practice,
treaties of all kinds are submitted regularly for such approval, save
only such as comprise military conventions or foreign alliances. The
power of the veto exists, but it is in practice never used. Rarely
does the king attend the sessions of the cabinet, in which the
policies of the government are discussed and its measures formulated
and, save through the designation of the premier, in the event of a
cabinet crisis, and within the domain of foreign relations, the royal
power may be said to be brought to bear in direct manner upon the
affairs of state only incidentally. As head of the nation, however,
and visible token of its hard-won unification, the monarch fulfills a
distinctly useful function. The reigning family, and especially the
present sovereign, Victor Emmanuel III., is extremely popular
throughout the country; so that, although in Italy, as elsewhere among
European monarchies, there is an avowed republican element, there is
every indication that royalty will prove an enduring institution.

                   [Footnote 540: Arts. 5-8. Dodd, Modern
                   Constitutions, II., 5. Dupriez, Les Ministres, I.,
                   292-297.]

*406. The Ministry: Composition.*--From what has been said it follows
that the ministry in Italy, as in Great Britain and France,
constitutes the actual executive. Nominally it consists of heads of
departments, although occasionally a member is designated without
portfolio. Of departments there are at present eleven, as follows:
Foreign affairs; War; Marine; the Interior; Finance; the
Treasury;[541] Public Instruction; Public Works; Justice and
Ecclesiastical Affairs; Commerce, Industry, and Agriculture; and Posts
and Telegraphs. Ordinarily the premier, or "president of the council,"
occupies the portfolio of the Interior. He is named by the king, and
inasmuch as, by reason of the multiplicity of Italian political    (p. 370)
parties, there is often no clearly distinguished "leader of the
opposition," such as all but invariably stands ready to assume office
in Great Britain, in the making of the appointment there is room for
the exercise of considerable discretion. All remaining members of the
ministry are designated by the crown, on nomination of the premier. In
accordance with the provisions of a law of February 12, 1888, each
minister is assisted by an under-secretary of state.

                   [Footnote 541: Separated from Finance in 1889.]

All ministers and under-secretaries possess the right to appear on the
floor of either of the legislative chambers, and to be heard upon
request; but no one of them is entitled to vote in either body unless
he is a member thereof.[542] To be eligible for appointment to a
portfolio or to an under-secretaryship it is not necessary that a man
be a member of either chamber; but if an appointee is not in
possession of such membership it is customary for him to seek the next
seat that falls vacant in the Deputies, unless in the meantime he
shall have been created a senator. In point of fact, the ministers are
selected regularly from among the members of Parliament, and
predominantly from the Chamber of Deputies. Only rarely has the
premiership devolved upon a senator. Ministers of war and of marine,
being chosen largely by reason of technical qualifications, are
frequently members of the Senate by special appointment.

                   [Footnote 542: Art. 66. Dodd, Modern Constitutions,
                   II., 13.]

*407. The Ministry: Organization and Functions.*--The internal
organization of the ministry--the interrelations of the several
departments and the relations sustained by each minister with the
premier--are regulated largely by a decree of March 28, 1867,
promulgated afresh, with minor modifications, August 25, 1876. Among
matters which are required to be brought before the ministerial
council are all projects of law which are to be submitted to the
chambers, all treaties, all conflicts of administrative jurisdiction,
all proposals relating to the status of the Church, petitions from the
chambers, and nominations of senators, diplomatic representatives, and
a wide range of administrative and judicial functionaries. By law
there is enumerated further an extended list of matters which must be
brought to the ministry's attention, though action thereupon is not
made compulsory; and the range of subjects which, upon the initiative
of the premier or that of other ministers, may be submitted for
consideration is left purposely without limit. It is the business of
the premier to convoke the ministers in council, to preside over their
deliberations, to maintain, in respect to both administrative methods
and political policy, as large a measure of ministerial uniformity and
solidarity as may be; and to require from time to time from his    (p. 371)
colleagues full and explicit reports upon the affairs of each of
the several departments. By reason, however, of the multiplicity of
party groups in the chambers, the necessarily composite character
politically of every cabinet, and the generally unstable political
condition of the country, ministries rarely possess much real unity,
and in the administration of the public business they are likely to be
handicapped by internal friction. "The Italian ministry," says an able
French writer, "is manifestly unable to fulfill effectively the
three-fold purpose of a parliamentary cabinet. It exercises the
executive power in the name, and under the authority, of the king; but
it does not always know how to restrain Parliament within the bounds
of its proper control, and it is obliged to tolerate the interference
of deputies in the administration. Through the employment of the
initiative, and of influence upon the acts of Parliament, it is the
power which impels legislation; but not infrequently it is lacking in
the authority essential to push through the reforms which it has
undertaken, and the Chamber evades easily its control. It seeks to
maintain harmony between the two powers (executive and legislative);
but the repeated defeats which it suffers demonstrate to what a degree
its work is impeded by the disorganization of parties."[543] For all
of their acts the ministers are responsible directly to Parliament,
which means, in effect, to the Chamber of Deputies; and no law or
governmental measure may be put in operation until it has received the
signature of one or more of the ministerial group, by whom
responsibility for it is thereby explicitly assumed.

                   [Footnote 543: Dupriez, Les Ministres, I., 291.]

*408. The Promulgation of Ordinances.*--The administrative system of
Italy is modelled, in the main, upon that of France. In the effort to
achieve national homogeneity the founders of the kingdom indulged to
excess their propensity for centralization, with the consequence that
Italy has exhibited regularly an admixture of bureaucracy and
liberalism even more confounding than that which prevails in the
French Republic. In theory the administrative system is broadly
democratic and tolerant; in practice it not infrequently lends itself
to the employment of the most arbitrary devices. Abuse arises most
commonly from the powers vested in the administrative officials to
supplement legislation through the promulgation and enforcement of
ordinances. By the constitution it is stipulated that the Executive
shall "make decrees and regulations necessary for the execution of the
laws, without suspending their execution, or granting exemptions from
them."[544] This power, however, in practice, is stretched even
further than is the similar power of the Executive in France, and with
the result not infrequently of the creation of temporary law, or   (p. 372)
even the virtual negation of parliamentary enactment. Parliament is
seldom disposed to stand very rigidly upon its rights; indeed, it
sometimes delegates expressly to the ministry the exercise of sweeping
legislative authority. The final text of the great electoral law of
1882, for example, was never considered in the chambers at all. After
debating the subject to their satisfaction, the two houses simply
committed to the Government the task of drawing up a permanent draft
of the measure and of promulgating it by executive decree. The same
procedure has been followed in other fundamental matters. And not
merely the ministers at Rome, but also the local administrative
agents, exercise with freedom the ordinance-making prerogative. "The
preference, indeed," as is observed by Lowell, "for administrative
regulations, which the government can change at any time, over rigid
statutes is deeply implanted in the Latin races, and seems to be
especially marked in Italy."[545]

                   [Footnote 544: Art. 6. Dodd, Modern Constitutions,
                   II., 5.]

                   [Footnote 545: Lowell, Governments and Parties, I.,
                   166. On the Italian executive see Dupriez, Les
                   Ministres, I., 281-329. An essay of value is M.
                   Caudel, Parlementarisme italien, in _Annales des
                   Sciences Politiques_, Sept., 1900.]

II. PARLIAMENT: THE SENATE

*409. Composition.*--Legislative power in Italy is vested conjointly in
the king and Parliament, the latter consisting of two houses--an
upper, the _Senato_, and a lower, _the Camera de' Deputati_. The
Senate is composed entirely of members appointed for life by the
crown. The body is no true sense a house of peers. Its seats are not
hereditary and its members represent not alone the great proprietors
of the country but a wide variety of public functionaries and men of
achievement. In the making of appointments the sovereign is restricted
by the necessity of taking all appointees from twenty-one stipulated
classes of citizens, and it is required that senators shall be of a
minimum age of forty years. The categories from which appointments are
made--including high ecclesiastics, ministers of state, ambassadors,
deputies of prolonged service, legal and administrative officials, men
who during as much as seven years have been members of the Royal
Academy of Sciences or of the Superior Council of Public
Instruction--may be reduced, broadly, to three: (1) high officials of
church and state; (2) persons of fame in science or literature, or who
by any kind of services or merit have brought distinction to the
country; and (3) persons who for at least three years have paid direct
property or business taxes to the amount of 3000 lire ($600). The
total number of members when the _Statuto_ was put in effect in 1848
was 78; the number in 1910 was 383. The last-mentioned number comprised
the president of the Chamber of Deputies, 147 ex-deputies of six   (p. 373)
years' service (or men who had been elected to as many as three
parliaments), one minister of state, six secretaries of state, five
ambassadors, two envoys extraordinary, 23 officials of the courts of
cassation and of other tribunals, 33 military and naval officials,
eight councillors of state, 21 provincial functionaries, 41 members of
the Royal Academy of Sciences, three members of the Superior Council
of Public Instruction, two persons of distinguished services to the
country, 71 payers of direct taxes in the amount of 3,000 lire, and 19
other scattered representatives of several categories. The absence of
ecclesiastical dignitaries is to be accounted for by the rupture with
the Vatican. The last members of this class to be named were appointed
in 1866.

*410. Legislative Weakness.*--The prerogative of senatorial appointment
has been exercised upon several occasions for the specific purpose of
influencing the political complexion of the upper chamber. In 1886
forty-one appointments were made at one stroke; in 1890, seventy-five;
and in 1892, forty-two. The Senate guards jealously its right to
determine whether an appointee is properly to be considered as
belonging to any one of the twenty-one stipulated categories, and if
it decides that he is not thus eligible, he is refused a seat. But as
long as the sovereign keeps clearly within the enumerated classes, no
practical limitation can be placed upon his power of appointment.[546]
In practice, appointment by the king has meant regularly appointment
by the ministry commanding a majority in the lower chamber; and so
easy and so effective has proved the process of "swamping" that the
legislative independence of the Senate has been reduced almost to a
nullity. In general it may be said that the body exercises the
function of a revising, but no longer of an initiating or a checking,
chamber. During the period 1861-1910 the government presented in the
Chamber of Deputies a total of 7,569 legislative proposals, in the
Senate but 598; and the number of projects of law originated within
the Senate during this same period was but thirty-nine. In volume and
range of legislative activity the nominated senate of Italy is
distinctly inferior to the elected senate of France.[547]

                   [Footnote 546: Of 1,528 appointments made between
                   1848 and 1910 but 63 were refused confirmation by
                   the Senate.]

                   [Footnote 547: It is interesting to observe that,
                   in the interest of governmental stability and
                   permanence, Cavour favored the adoption of the
                   elective principle in Italy. For illustrations of
                   the weakness of the Italian Senate see C.
                   Morizot-Thibault, Des droits des chambres hautes ou
                   sénats en matière des lois de finance (Paris,
                   1891), 156-175.]

*411. Projected Reform.*--Within recent years there has arisen a
persistent demand for a reform of the Senate, to the end that the
body may be brought into closer touch with the people and be       (p. 374)
restored to the position of a vigorous and useful second chamber. In
the spring of 1910 the subject was discussed at some length within the
Senate itself, and at the suggestion of the ministry a special
commission of nine members was created to study "the timeliness, the
method, and the extent" of the proposed reforms. December 5, 1910,
this commission brought in an elaborate report, written principally by
Senator Arcoleo, a leader among Italian authorities upon
constitutional law. After pointing out that among European nations the
reconstitution and modernization of upper chambers is a subject of
large current interest, the commission proposed a carefully considered
scheme for the popularizing and strengthening of the senatorial body.
The substance of the plan was, in brief; (1) that the chamber
henceforth should be composed of 350 members; (2) that the membership
should be divided into three categories, designated, respectively, as
officials, men of science and education, and men of political or
economic status; and (3) that members of the first category, not to
exceed 120, should be appointed, as are all members at present, by the
crown; but members of the other two should be elected by fifteen
special colleges so constituted that their membership would represent
actual and varied groups of interests throughout the nation. The
professors in the universities, for example, organized for the purpose
as an electoral college, should be authorized to choose a contingent
of thirty representatives. Other elements to be admitted to a definite
participation in the elections should include former deputies, larger
taxpayers, provincial and communal assemblies, chambers of commerce,
agricultural societies, and workingmen's associations. The primary
idea of those who propounded the scheme was that through its adoption
there would be established a more vital contact between the Senate and
the varied forces that contribute to the life of the nation than can
subsist under the existing order. Unfortunately, as many consider, the
Senate voted not to approve the commission's project. It contented
itself, rather, with a vote in favor of an enlargement of the classes
of citizens from which senators may be appointed by the king,
although, in February, 1911, it went so far as to request the ministry
to present new proposals, and, in particular, a proposal to vest in
the Senate the choice of its presiding officer. Toward a solution of
the problems involved there has been (to 1912) no further progress. It
is not improbable, however, that upon some such plan of modernization
as was prepared by the commission of 1910 agreement eventually will be
reached.[548]

                   [Footnote 548: E. Pagliano, Il Senato e la nomina
                   dei senatori (Rome, 1906); L. A. Magro, L'
                   aristocrazia e il Senato (Catania, 1909); I.
                   Tambaro, La réforme du Sénat italien, in _Revue du
                   Droit Public_, July-Sept., 1910, and Les débats sur
                   la réforme du Sénat italien, ibid., July-Sept.,
                   1911; M. Scelle, Réforme du Sénat italien, ibid.,
                   Oct.-Dec, 1911; Nazzareno, La riforma del Senato,
                   in _Rivista di Diritto Pubblica_, III., 171. The
                   report of the commission of 1910 is contained in
                   Per la riforma del Senato; relazione della
                   commissione (Rome, 1911).]

*412. Privileges and Powers.*--Within the Senate, as to-day        (p. 375)
constituted, the president and vice-president are named by the king;
the secretaries are selected by the body from its own membership. The
privileges of members are defined minutely. Save by order of the
Senate itself, no senator may be arrested, unless apprehended in the
commission of an offense; and the Senate is constituted sole judge of
the alleged misdemeanors of its members--a curious duplication of an
ancient prerogative of the British House of Lords. Ministers are
responsible only to the lower house, and although there are instances
in which a minister has retired by reason of an adverse vote in the
Senate, in general it may be affirmed that the Senate's importance in
the parliamentary régime is distinctly subordinate. The two chambers
possess concurrent powers of legislation, except that all measures
imposing taxes or relating to the budget are required to be presented
first in the Deputies. By decree of the crown the Senate may be
constituted a High Court of Justice to try cases involving treason or
attempts upon the safety of the state, and to try ministers impeached
by the Chamber of Deputies. When acting in this capacity the body is a
tribunal of justice, not a political organization; but it is forbidden
to occupy itself with any judicial matters other than those for which
it was convened.[549]

                   [Footnote 549: Art. 36. Dodd, Modern Constitutions,
                   II., 10.]

III. THE CHAMBER OF DEPUTIES--PARLIAMENTARY PROCEDURE

*413. Composition: Franchise Law of 1882.*--The lower legislative
chamber is composed of 508 members chosen by the voters of the realm
under the provisions of the electoral law of March 28, 1895. In no
country of western Europe is the privilege of the franchise more
restricted than in Italy; yet progress toward a broadly democratic
scheme of suffrage has been steady and apparently as rapid as
conditions have warranted. The history of the franchise since the
establishment of the present kingdom falls into three periods,
delimited by the electoral laws of 1882 and 1895. Prior to 1882 the
franchise was, in the main, that established by the electoral law of
December 17, 1860, modified by amendments of July, 1875, and May,
1877. It was restricted to property-holders who were able to read and
write, who had attained the age of twenty-five, and who paid an annual
tax of at least forty lire. Under this system less than two and a  (p. 376)
half per cent of the population possessed the right to vote.

In 1882, after prolonged consideration of the subject, the Government
carried through Parliament a series of measures--co-ordinated in the
royal decree of September 24--by which the property qualification was
reduced from forty lire to nineteen lire eighty centesimi and the age
limit was lowered to twenty-one years. The disqualification of
illiteracy was retained, and a premium was placed upon literacy by the
extension of the franchise, regardless of property, to all males over
twenty-one who had received a primary school education. There were
minor extensions in other directions. The net result of the law of
1882 was to raise the number of voters at a stroke from 627,838 to
2,049,461, about two-thirds of the new voters obtaining the franchise
by reason of their ability to meet the educational qualification.[550]
An incidental effect of the reform was to augment the political
influence of the cities, because in them the proportion of illiterates
was smaller than in the country districts. Small landed proprietors,
though of a more conservative temperament, and not infrequently of a
better economic status, than the urban artisans, were commonly unable
to fulfill the scholarship qualification.

                   [Footnote 550: Lowell, Governments and Parties, I.,
                   157.]

The law of 1882 provided for elections by general ticket, i.e., on the
principle of _scrutinio di lista_. An act of May 8, 1891, abolished
the general ticket and created a commission by which the country was
divided into 508 electoral districts, each entitled to choose one
deputy. By a law of June 28, 1892, there were introduced various
reforms in the control and supervision of elections, and by another of
July 11, 1894, new provisions were established for the revision of
electoral and registration lists. Finally, March 28, 1895, there was
promulgated an elaborate royal decree whereby the entire body of
electoral laws enacted since the establishment of constitutional
government, and at the time continuing in operation, was co-ordinated
afresh. The existing system was not altered fundamentally, although
the method of making up the voting-lists was changed, with the result
that the number of electors was somewhat diminished.

*414. The Franchise To-day.*--The Italian voter to-day must possess the
following qualifications: (1) Italian citizenship; (2) age of
twenty-one, or over; (3) ability to read and write; and (4) successful
passage of examinations in the subjects comprised in the course of
compulsory elementary education. The last-mentioned qualification is
not, however, required of officials, graduates of colleges, professional
men, persons who have served two years in the army, citizens who pay a
direct tax annually of not less than nineteen lire eighty          (p. 377)
centesimi, those who pay an agricultural rental of 500 lire, those who
pay house rent of from 150 lire in communes of 2,500 people to 400
lire in communes of over 150,000, and certain less important classes.
So serious at all times has seemed the menace of illiteracy in Italy
that the establishment of manhood suffrage has but rarely been
proposed. Under the existing system the extension of education carries
with it automatically the expansion of the franchise, though the
obstacles to universal education are still so formidable that the
democratizing of the state proceeds but slowly.[551] In 1904 the
number of enrolled electors was 2,541,327--29 per cent of the male
population over twenty-one years of age, and 7.67 per cent of the total
population--exclusive of 26,056 electors temporarily disfranchised by
reason of being engaged in active military service. At the elections
of November, 1904, the number of qualified electors who voted was
1,593,886, or but 62.7 per cent of those who possessed the privilege.
The proportion of registered electors who actually vote is kept down
by the prosaic character of Italian electoral campaigns, by the
influence of the papal _Non Expedite_,[552] and, most of all, by the
habitual indifference of citizens, who, if the truth be told, for the
most part have never displayed an insatiable yearning for the
possession of the voting privilege. With the exception of the
Socialists, no party has a clear-cut, continuous programme; none, save
again the socialists, attempts systematically to arouse the voters at
election time.

                   [Footnote 551: King and Okey, Italy To-day, Chap.
                   12.]

                   [Footnote 552: See p. 400.]

*415. Electoral Reform.*--Notwithstanding these facts, there has been,
in recent years, a somewhat insistent demand for electoral reform. The
Luzzatti ministry fell, in March, 1911, primarily because a plan of
suffrage extension which it had proposed was not to be put in
operation before 1913. June 10, 1911, the Giolitti ministry which
succeeded laid before the Chamber the text of a measure which, if
adopted, would go far toward the establishment of universal male
suffrage. The proposal was that practically all male citizens over
thirty years of age, and all over twenty-one who have performed the
military service required by the state, should be given the privilege
of voting, irrespective of their ability to read and write. This
project, after being debated at length, was adopted in the Chamber of
Deputies early in 1912 by the enormous majority of 392 to 61. In the
event of its final enactment the existing electorate will be increased
from three millions to two and a half times that number and a general
overhauling of electoral methods and machinery will be rendered
necessary. The grounds upon which the change is urged are, first,  (p. 378)
the example of other nations and, second, the political and economic
progress which Italy has achieved within the past generation. Serious
students doubt whether the time is ripe for so radical a step. One
half of the proposed electorate would be wholly illiterate.[553]

                   [Footnote 553: For the text of the Giolitti
                   proposals see _Il Seculo_, June 11, 1911. On
                   Italian electoral reform see A. Piebantoni, La
                   riforma della legge elettorale (Naples, 1909); G.
                   Bandini, La riforma elettorale con la
                   rappresentanza proporzionale nelle elezioni
                   politiche (Rome, 1910); G. Sabini, La riforma del
                   sistema elettorale in Italia (Turin, 1910);
                   Siotto-Pintor, Estensione del suffragio e
                   distribuzione della rappresentanza, in _Rivista di
                   Diritto Pubblico_, Dec., 1911, and Le riforma del
                   régime elettorale e le dottrine della
                   rappresentanza politica e dell' elettorato nel
                   secolo XX. (Rome, 1912).]

*416. Electoral Procedure.*--Save during the years 1882-91, when the
_scrutinio di lista_ was in operation, deputies have been chosen
uniformly from single-member districts. There are to-day 508 such
districts. No candidate is returned unless he not only polls a number
of votes in excess of one-sixth of the total number of enrolled
electors within the district, but has also an absolute majority of all
the votes cast. If, after balloting, it is found that no candidate
meets this requirement, a second ballot (_ballottaggio_) takes place
one week subsequently.[554] At each polling place the presiding
officer and "scrutineers" are chosen by the voters present. The method
of voting is simple. In the polling-booth stands a table, on which are
placed two square glass boxes, one empty, the other containing the
voting papers. As the list of enrolled electors is read
alphabetically, each man steps forward, receives a ballot paper, takes
it to an adjoining table and writes on it the name of the candidate
for whom he wishes to vote, folds the paper, and deposits it in the
box reserved for the purpose. After the list has been read through it
is the right of any voter who was not present to respond when his name
was called to cast his ballot in a similar manner. The polling hours
extend, as a rule, from 9 a.m. to 4 p.m.[555]

                   [Footnote 554: At the elections of March, 1909, in
                   75 of the 508 districts no candidate received an
                   adequate majority. In 57 of these districts the
                   candidate who, at the first ballot, had received
                   the largest number of votes was elected at the
                   second ballot. The political effect of the second
                   ballot is slight. At the election of 1900 there
                   were 77 second ballotings; at that of 1904, 39. A.
                   N. Holcombe, Direct Primaries and the Second
                   Ballot, in _Amer. Political Science Review_, Nov.,
                   1911; A. F. Locatelli, Considerazioni intorno all'
                   opportunità di abolire il ballottaggio, in _La
                   Riforma Sociale_, July-Aug., 1910.]

                   [Footnote 555: King and Okey, Italy To-day, 14.]

*417. Qualifications and Privileges of Members.*--A deputy is not
required to be a resident of the district from which he is chosen. He
must, however, be a citizen; must be at least thirty years of age;
must be in possession of full civil and political rights; and must not
belong to any of the classes or professions whose members are      (p. 379)
debarred by law. All salaried government officials, all persons
receiving stipends from the state, and all persons ordained for the
priesthood or filling clerical office are disqualified outright.
Furthermore, while officers in the army and navy, ministers,
under-secretaries, and various other higher functionaries may be
elected, their number must never exceed forty, not including the
ministers and under-secretaries. Neither senators nor deputies receive
a salary or other compensation, a fact that undoubtedly accounts in
some measure for the uniformly slender attendance in the chambers.
Members are permitted, however, to travel free throughout Italy by
rail, or on steamers belonging to lines that have a government
contract containing a stipulation upon the subject. Measures providing
for the payment of members have been proposed from time to time, but
none have received the approval of the two chambers. A measure of the
sort introduced in 1882 by Francesco Crispi, when a deputy, was
rejected by the lower house. More recently, in the electoral bill
voted by the Chamber of Deputies in 1912 provision is made for the
payment of deputies; but at the time of writing final action upon this
project has not been taken. Deputies are elected nominally for a
five-year period, which is the maximum duration of a parliament. In
point of fact, a dissolution is practically certain to intervene
before the expiration of the full term, and the average interval
between elections is nearer three years than five. If for any reason a
deputy ceases to perform his duties, the electoral district that chose
him is called upon forthwith to elect a new representative.

*418. The Chambers: Organization.*--The constitution does not prescribe
definitely that the parliament shall be assembled annually. It
stipulates merely that the sessions of the two houses shall begin and
end at the same time, that a meeting of one house at a time when the
other is not in session is illegal, and that measures enacted under
such circumstances are void.[556] Custom and the necessities of
administration, however, render it incumbent upon the crown to convoke
the chambers in at least one session each year, unless, indeed, as has
sometimes happened, a session is so prolonged as to extend, with
occasional recesses, over an entire year, or even two years.

                   [Footnote 556: Art. 48. Dodd, Modern Constitutions,
                   II., 12.]

The president and vice-president of the Senate are designated by the
crown, but the president, vice-presidents, and secretaries of the
lower chamber are chosen by the chamber itself from among its own
members at the beginning of each session, for the entire session. The
president of the Deputies, although empowered to appoint certain
committees, such as those on rules and contested elections, is not (p. 380)
infrequently re-elected again and again without regard to party
affiliations, after the manner of the Speaker of the British House of
Commons. The membership of the Chamber of Deputies is divided into
nine _uffici_, or sections, and that of the Senate into five. A fresh
division, by lot, takes place every two months. The principal function
of the _uffici_ is the election of those committees for whose
constitution no other provision is made. In each chamber the most
important of all committees, that on the budget, is elected directly
by the chamber. In the Deputies certain other committees are elected
in the same way, while, as has been said, those on elections and on
rules are appointed by the president. But committees specially
constituted for the consideration of particular measures are made up
of members chosen from the various _uffici_, unless the chamber
prefers to designate some other method.

*419. The Chambers: Procedure.*--Each house frames its own rules of
procedure. By the constitution it is stipulated that the sessions
shall be public (with the provision that upon the written request of
ten members secret sessions may be held); that Italian shall be the
official language; that no session or vote of either house shall be
valid unless an absolute majority of the members is present; and that
neither house shall receive any deputation, or give hearings to
persons other than the legislative members, ministers, and
commissioners of the Government.[557] Except such as relate to
finance, bills on any subject may originate in either house, and at
the initiative of the Government or of private members, though in
practice all proposals of importance emanate from the Quirinal. The
ministers appear regularly on the floor of the two chambers, to
advocate the measures of the Government and to reply to inquiries. The
right of interpellation is not infrequently exercised, though the
debate and vote following a challenge of the ministry fall regularly
after an interval of some days, instead of at once, as in the French
system, thus guarding somewhat against precipitancy of action. A
measure which is passed in one house is transmitted to the other for
consideration. After enactment in both houses, it is presented to the
king for approval, which, in practice, is never withheld. A bill
rejected by the crown, or by either house, may not be reintroduced
during the same session. Votes are taken by rising and sitting, by
division, or by secret ballot. The third of these methods is
obligatory in all final votes on enactments, and on measures of a
personal character. It is specifically enjoined that deputies      (p. 381)
shall represent the nation as a whole, and not the districts from
which they are chosen, and to this end no binding instructions may be
imposed upon them by the electors.[558] Except when taken in the
actual commission of an offense, deputies are exempt from arrest
during the continuance of a session, and they may not be proceeded
against in criminal matters without the previous consent of the
Chamber. Neither senators nor representatives may be called to account
for opinions expressed, or for votes cast, in the performance of their
official functions.

                   [Footnote 557: Arts. 52-54, 59, 62. Dodd, Modern
                   Constitutions, II., 12-13. In practice the
                   requirement of the presence of an absolute majority
                   of members is sometimes disregarded.]

                   [Footnote 558: Art. 41. Dodd, Modern Constitutions,
                   II., 11.]

IV. THE JUDICIARY

*420. General Aspects.*--The provisions of the _Statuto_ respecting the
administration of justice are brief and general. Justice, it is
declared, emanates from the king and is administered in his name by
the judges whom he appoints. These judges, after three years of
service, are irremovable. Proceedings of courts in civil cases and
hearings in criminal cases are required to be public. No one may be
withdrawn from his ordinary legal jurisdiction; and no modification
may be introduced in respect to courts, tribunals, or judges, save by
law.[559] On the basis of these principles there has been built up a
system of tribunals which differs in but few important respects from
the systems in operation in the other Latin countries of Europe. It
consists, in part, of courts which have been carried over from the
period preceding Italian unification and, in part, of courts which owe
their existence to legislation subsequent to 1861. The model upon
which the system has been developed is the judicial hierarchy of
France, and it differs from this system in little save the existence,
as will appear, of five largely independent courts of cassation
instead of one.

                   [Footnote 559: Arts. 68-73. Ibid., II., 14-15.]

*421. The Ordinary Courts.*--For purposes of justice the kingdom is
divided into 1,535 _mandamenti_,[560] 162 tribunal districts, and 20
appellate court districts. Within each _mandamento_ is a _pretura_, or
magistracy, which exercises jurisdiction in civil cases and in cases
of misdemeanors (_contravvenzioni_) and offenses (_delitte_)
punishable by imprisonment not exceeding three months, or banishment
not exceeding one year, or a fine not exceeding 1,000 lire. In     (p. 382)
minor civil cases, involving sums not in excess of 100 lire,
jurisdiction is vested in justices of the peace (_giudici conciliatori_)
who likewise, upon request, act as arbitrators in cases involving any
amount. In each of thirteen of the largest towns there is a _pretura_
which exercises penal jurisdiction exclusively. Next above the
_pretori_ stand the penal courts, one in each of the 162 tribunal
districts. These exercise jurisdiction in the first instance in
offenses involving a maximum imprisonment of ten years or a fine of
more than 1,000 lire. To them appeal may be carried from the decisions
of the _pretori_. Closely associated are the courts of assize, which
possess original jurisdiction in cases involving a penalty of
imprisonment for life, or for a period longer than a minimum of five,
and a maximum of ten, years. Save when the Senate is constituted a
high court of justice, these tribunals have exclusive jurisdiction of
all press offenses and of all cases involving attacks upon the
security of the state. As a rule, the courts of assize make use of the
jury. From their decisions there is no appeal, save upon a point of
form, and appeal lies solely to the court of cassation at Rome. From
the penal tribunals appeal lies, in cases not dealt with by the assize
courts, to the twenty courts of appeal.

                   [Footnote 560: Prior to 1901 the administrative and
                   electoral _mandamenti_ and the _mandamenti
                   giudiziarii_ were identical geographically, and
                   there were 1,805 of them in the kingdom. By a law
                   of the year mentioned the judicial _mandamenti_
                   were reduced in number to 1,535.]

At the top of the system stand five largely independent courts of
cassation, located at the old capitals of Turin, Florence, Naples,
Palermo, and Rome. Each of these exercises, within its own territory,
final jurisdiction in all cases involving the ordinary civil law. The
court of cassation at Rome, it is true, has been given exclusive
jurisdiction in conflicts of competence between different courts,
conflicts between the courts and the administrative authorities, the
transfer of suits from one tribunal to another, writs of error in
criminal cases, and a variety of other special matters. But, aside
from this, the five tribunals are absolutely equal in function; there
is no appeal from one to another, and the decisions arrived at by one
do not constitute precedents which the others are obligated to
recognize. One of the most striking aspects, indeed, of the Italian
judicial system is its lack of centralization; though it should be
added that the centralizing principle which, since 1870, has dominated
so notably all other departments of the government has been gradually
winning its way in the judiciary.

*422. The Administrative Courts.*--In Italy, as in continental countries
generally, there is preserved a sharp distinction between public and
private law; but the separation of functions of the ordinary and the
administrative courts is much less clear-cut than in France and
elsewhere. In 1865, indeed, the surviving administrative courts of (p. 383)
the states which had been drawn into the kingdom, were abolished and
it was arranged that the ordinary courts should exercise unrestricted
jurisdiction in all criminal cases and in all civil cases in which, by
the decision of the Council of State, a civil or political right was
involved. The system worked poorly and by laws of June 2, 1889, and
May 1, 1890, a special section of the Council of State (composed of a
president and eight councillors named by the king) was set off to
serve as an administrative court, while at the same time an inferior
administrative jurisdiction was conferred upon the _giunta_ (prefect
and certain assistants) of the province. In practice to-day, when the
legality of acts committed by the administrative officials is called
in question, the ordinary courts exercise jurisdiction, if the
question is one of private _right_; if it is one merely of private
_interest_, it goes for decision to an administrative tribunal. In
most continental countries _all_ cases involving the legality of
official acts fall within the domain of the administrative
courts.[561]

                   [Footnote 561: There is a brief description of the
                   Italian judicial system in Lowell, Governments and
                   Parties, II., 170-178.]

V. LOCAL GOVERNMENT

*423. Historical Basis.*--In her ancient territorial divisions Italy had
once the basis of a natural and wholesomely decentralized system of
local government. Instead of availing themselves of it, however, the
founders of the present kingdom preferred to reduce the realm to a
_tabula rasa_ and to erect within it a wholly new and symmetrical
hierarchy of territorial divisions and governmental organs. By a great
statute of March 20, 1865, there was introduced in the kingdom a