The Governments of Europe

by Frederic Austin Ogg

III. The Present Constitution

675. The Constitution Adopted.—The year following the re-establishment of the monarchy was consumed largely in the suppression of the Carlists and the reorganization of the government. During this period Cánovas, at the head of a strong Conservative and Clerical ministry, ruled virtually as a dictator, and sooner or later most vestiges of the republic were swept away, while the nation was won over solidly to the new order. At the election of the first Cortes of the Restoration, January 22, 1876, the principle of manhood suffrage was continued in operation, though so docile did the electorate prove that Cánovas was able to secure, in both chambers, a heavy majority which was ready to vote at the Government's behest a franchise system of a much less liberal type. The first important task of this Cortes was the consideration and adoption of a new national constitution. As to the sort of constitution most desirable there was, as ever, wide difference of opinion. The Conservatives favored a revival of the instrument of 1845. The Liberals much preferred a restoration of that of 1869. A commission of thirty-nine, designated May 20, 1875, by a junta convened by Cánovas, had evolved with some difficulty an instrument which combined various features of both of these earlier documents, and by the Cortes of 1876 this proposed constitution was at length accorded definite, though by no means unanimous, assent (June 30). This instrument was put forthwith into operation, and it has remained to this day, substantially without alteration, the fundamental law of Spain. Based essentially upon the constitution of 1845, it none the less exhibits at many points the influence of the liberal principles which underlay the instrument of 1869.

676. Contents: Guarantees of Individual Liberty.—In scope the constitution is comprehensive. Its text falls into thirteen "titles" and eighty-nine articles. Like the constitution of Italy, it contains no provision for its own amendment; but in Spain, as also in Italy, the distinction between constituent and legislative powers is not sharply drawn and a simple act of the legislative body is in practice adequate to modify the working constitution of the kingdom. Among the thirteen titles one of the most elaborate is that in which are defined the rights and privileges of Spanish subjects and of aliens resident in Spain.[846] Among rights specifically guaranteed are those of freedom of speech, freedom of the press, peaceful assemblage, the formation of associations, petition, unrestrained choice of professions, and eligibility to public offices and employments, "according to merit and capacity." Immunities guaranteed include exemption from arrest, "except in the cases and in the manner prescribed by law"; exemption from imprisonment, except upon order of a competent judicial official; freedom from molestation on account of religious opinions, provided due respect for "Christian morality" be shown;[847] and exemption from search of papers and effects and from confiscation of property, save by authority legally competent. It is forbidden that either the military or the civil authorities shall impose any penalty other than such as shall have been established previously by law. Certain guarantees, i.e., those respecting arrest, imprisonment, search, freedom of domicile, freedom of speech and press, assemblage, and associations, may, under provision of the constitution, be suspended throughout the kingdom or in any portion thereof, but only when demanded by the security of the state, and then only temporarily and by means of a specific law. In no case may any other guarantee which is named in the constitution be withdrawn, even temporarily. When the Cortes is not in session the Government may suspend, through the medium of a royal decree, any one of the guarantees which the Cortes itself is authorized to suspend, but at the earliest opportunity such a decree must be submitted to the Cortes for ratification. It need hardly be pointed out that the opportunity for the evasion of constitutionalism which is created by this power of suspension is enormous, and anyone at all familiar with the history of public affairs in Spain would be able to cite numerous occasions upon which, upon pretexts more or less plausible, the guarantees of the fundamental law have been set at naught.[848]

IV. The Crown and the Ministry

677. The Rules of Succession.—Executive power in the kingdom is vested solely in the crown, although in practice it devolves to a large degree upon the council of ministers. Kingship is hereditary, and in regulation of the succession the constitution lays down the general principle that an elder line shall always be preferred to younger ones; in the same line, the nearer degree of kinship to the more remote; in the same degree of kinship, the male to the female; in the same sex, the older to the younger person. By the original constitution Alfonso XII. was declared to be the legitimate sovereign, and provision was made that if the line of legitimate descendants of Alfonso should be extinguished, his sisters should succeed in the established order; then his aunt (the sister of his mother Isabella II.) and her legitimate descendants; and, finally, the descendants of his uncles, the brothers of Ferdinand VII.[849] It will be recalled that the Pragmatic Sanction of 1830 abolished in Spain the Salic principle and restored the ancient right of females to inherit. Spain is, indeed, one of the few European states in which this right exists. At the same time, as has been pointed out, when the degree of kinship is identical, preference is accorded the male. Thus it came about that the present sovereign, Alfonso XIII., the posthumous son of Alfonso XII., took precedence over his two sisters, both of whom were older than he, and the elder of whom, Maria de las Mercedes, actually was queen from the death of her father, November 25, 1885, until the birth of her brother, May 17, 1886.[850]

678. Regencies.—Any member of the royal family who may be incapable of governing, or who by his conduct may have forfeited his claim to the good-will of the nation, may be excluded from the succession by law. Disputes concerning rights or facts involved in the succession are to be adjusted by law, and in event that all of the family lines mentioned in the constitution should be extinguished it would become the duty of the Cortes to make such disposal of the crown as might be adjudged "most suitable to the nation."[851] Both the sovereign and the heir presumptive are forbidden to marry any person who by law is excluded from the succession. They are, indeed, forbidden to contract a marriage at all until after the Cortes shall have examined and approved the stipulations involved. The age of majority of the sovereign is fixed at sixteen years. When the king is a minor, his father or his mother, or, in default of a living parent, the relative who stands next in the order of succession, is constituted regent, provided always that such person be a Spaniard at least twenty years of age and not by law excluded from the succession. Should there be no one upon whom the regency may lawfully devolve, it is the duty of the Cortes to appoint a regency of one, three, or five persons. If, at any time, in the judgment of the Cortes, the sovereign becomes incapacitated to rule, a regency is required to be vested in the crown prince, provided he be sixteen years of age. In default of a qualified crown prince the regency devolves upon the queen; and in default of both son and queen, upon a person determined in accordance with the rules already mentioned.

679. Powers of the Crown.—The powers of the crown are of the sort common among continental monarchies. By the constitution they are thrown into two groups, i.e., those which may be exercised freely and independently and those which may be exercised only upon the authorization of a special law. Enumeration of the first group begins with the sweeping statement that "the power of executing the laws is vested in the king, and his authority extends to everything which conduces to the preservation of public order at home and the security of the state abroad, in conformity with the constitution and the laws."[852] Powers specifically named include the approval and promulgation of the laws; the issuing of decrees, regulations, and instructions designed to facilitate the execution of the laws; the appointment and dismissal of ministers and of civil officials generally; command of the army and navy and direction of the land and naval forces; the declaration of war and the conclusion of peace;[853] the conduct of diplomatic and commercial relations with foreign states; the pardoning of offenders; the control of the coinage; and the conferring of honors and distinctions of every kind. Of powers which the sovereign may exercise only in pursuance of authority specially conferred by law there are five, as follows: alienation, cession, or exchange of any portion of Spanish territory; incorporation of new territory; admission of foreign troops into the kingdom; ratification of all treaties which are binding individually upon Spaniards, and of treaties of offensive alliance which stipulate the payment of subsidies to any foreign power, or which relate especially to commerce; and abdication of the crown in favor of the heir-presumptive.

680. The Ministry: Organization and Functions.—In Spain, as in constitutional states generally, the powers appertaining to the executive are exercised in the main by the ministers. Concerning the ministry the constitution has little to say. It, in truth, assumes, rather than makes specific provision for, the ministry's existence. It confers upon the crown the power freely to appoint and to dismiss ministers; it stipulates that ministers may be senators or deputies and may participate in the proceedings of both legislative chambers, but may vote only in the chambers to which they belong; and, most important of all, it enjoins that ministers shall be responsible, and that no order of the king may be executed unless countersigned by a minister, who thereby assumes personal responsibility for it. This principle of ministerial responsibility, which found its first expression in Spain in the constitution of 1812, is enforced nowadays sufficiently, at least, to ensure the nation, through the Cortes, some actual control over the policies and measures of the executive. Of ministries there are at present nine, as follows: Foreign Affairs; Justice; Finance; War; Marine; Interior; Public Instruction and Fine Arts; Commerce; and Public Works. At the head of the ministerial council is a president, or premier, who, under royal approval, selects his colleagues, but ordinarily assumes himself no portfolio. It is the function of the ministers not only to serve as the heads of executive departments and to explain and defend in the legislative chambers the acts of the government, but, in their collective capacity, to formulate measures for presentation to the Cortes and, especially, to submit every year for examination and discussion a general budget, accompanied by a scheme of taxation or other proposed means of meeting prospective expenditures. In each chamber there is reserved for the ministers of the crown a front bench to the right of the presiding official. The practice of interpellation exists, although ministries rarely retire by reason of a vote of censure arising therefrom. But any minister may be impeached by the Congress before the Senate. In Spain, as in France and Italy, the parliamentary system is nominally in operation; but, as in the countries mentioned, the multiplicity and instability of party groups render the workings of the system totally different from what they are in Great Britain. Ministries are invariably composite rather than homogeneous in political complexion, with the consequence that they are unable to present a solid front or long to retain their hold upon the nation's confidence.

V. The Cortes

681. The Senate: Composition.—The legislative powers of the kingdom are vested in "the Cortes, together with the king." The Cortes consists of two co-ordinate chambers, the Senate and the Congress of Deputies. In the composition of the Senate the prescriptive, appointive, and elective principles are curiously intertwined, the chamber containing one group of men who are members in their own right, another who are appointed by the crown and sit for life, and a third who are elected by the corporations of the state and by the large taxpayers. In number the first two categories jointly may not exceed 180; the third is fixed definitely at that figure. In point of fact the life senators nominated by the crown number 100, while the quota of prescriptive members varies considerably. This last-mentioned group comprises grown sons of the sovereign and of the heir-presumptive; the admirals of the navy and the captains-general of the army; the patriarch of the Indies and the archbishops; the presidents of the Council of State, the Supreme Court, the Court of Accounts, and the Supreme Councils of War and Marine, after two years of service; and grandees of Spain[854] in their own right, who are not subjects of another power and who have a proved yearly income of 60,000 pesetas ($12,000) derived from real property of their own, or from rights legally equivalent to real property.[855]