Justice is administered in the name of the king. All judgments must be pronounced in open court, and by the constitution it is guaranteed specifically that proceedings in criminal matters shall be public. In every tribunal the state is represented by abogados fiscales (public prosecutors) and counsel nominated by the crown. Magistrates and judges, appointed by the crown, may not be removed, suspended, or transferred, save under circumstances minutely stipulated in the organic judicial laws. But judges are responsible personally for any violation of law of which they may be guilty.
693. Local Government: the Province and the Commune.—Prior to 1833 the Spanish mainland comprised thirteen provinces, by which were preserved in a large measure both the nomenclature and the geographical identity of the ancient kingdoms and principalities from which the nation was constructed. In the year mentioned the number of provinces was increased to forty-seven, at which figure it remains at the present day. The essential agencies of government in the province are two—the governor and the diputacion provincial, or provincial council. The governor is appointed by the crown and it is his function, under the direction of the Minister of the Interior, to represent the central government in the provincial council and in the general administrative business of the province. The provincial council is composed of members chosen by the voters of the province, which means, under the law of June 28, 1890, all male Spaniards of the age of twenty-five. Under the presidency of the governor the body meets yearly, and in the intervals between sessions it is represented by a commission provinciale, or provincial committee, elected annually. The size of the council varies roughly according to the population of the province.
The smallest governmental unit is the commune, and the number of communes in the kingdom is approximately 8,000. In each is an ayuntamiento, or council, the members of which, varying in number from five to thirty-nine, are elected for four years (one-half retiring biennially) by those residents of the commune who are qualified to vote for members of the provincial councils. To serve as the chief executive officer of the municipality the ayuntamiento regularly elects from its own number an alcalde, or mayor, although in the larger towns appointment of the mayor is reserved to the crown.
694. Principles of Local Control.—After stipulating that the organization and powers of the provincial and municipal councils shall be regulated by law, the constitution lays down certain fundamental principles to be observed in the enactment of such legislation. These are (1) the management of the local interests of the province and the commune shall be left entirely to the respective councils; (2) the estimates, accounts, and official acts of these bodies shall invariably be made public; (3) the fiscal powers of the councils shall be so determined that the financial system of the nation may never be brought in jeopardy; and (4) in order to prevent the councils from exceeding their prerogatives to the prejudice of general and established interests the power of intervention shall be reserved to the sovereign and, under certain circumstances, to the Cortes.[867] The theory, carried over from the liberal constitution of 1869, is that within the spheres marked out for them by law the provinces and the municipalities are autonomous. And it undoubtedly is true that, compared with the system in operation prior to 1868, the present régime represents distinct decentralization. None the less it must be said that in practice there is ever a tendency on the part of the central authorities to encroach upon the privileges of the local governing agencies, and through several years there has been under consideration a reorganization of the entire administrative system in the direction of less rather than more liberalism. In 1909 a Local Administration bill devised by the recent Maura ministry was adopted by the lower chamber of the Cortes. This measure, which was combatted with vigor by the Liberal party, proposed to enlarge the fiscal autonomy of the communes, but at the same time to modify the provincial and municipal electoral system by the establishment of an educational qualification, by the admission of corporations to electoral privileges, and by otherwise lessening the weight of the vote of the individual citizen. In the Senate the measure met determined opposition, and as yet its fate is uncertain.[868]
CHAPTER XXXIV
THE GOVERNMENT OF PORTUGAL
I. A Century of Political Development
695. The Napoleonic Subjugation and the Constitution of 1820.—The government of Portugal at the opening of the nineteenth century was no less absolute than was that of Spain, The Cortes was extinct, and although Pombal, chief minister during the period 1750-1777, had caused all Portuguese subjects to be made eligible to public office and had introduced numerous economic and administrative reforms, nothing had been permitted to be done by which the unrestricted authority of the crown might be impaired. The country was affected but slightly by the Revolution in France. In 1807, however, it fell prey to Napoleon and the royal family was obliged to take refuge in the dependency of Brazil. With the aid of the English the power of the conqueror was broken in 1808, and through a number of years the government was administered nominally by a commission designated by the absentee regent, Dom John, though actually by a British dictatorship. In 1815 Brazil was raised to the rank of a co-ordinate kingdom, and from that year until 1822 the official designation of the state was "the United Kingdom of Portugal, Brazil, and the Algarves." In 1816 the mad queen Maria I. died and the regent succeeded to the affiliated thrones as John VI. His original intention was to remain in America, but in 1820 a general revolt in Portugal culminated in the calling of a national assembly by which there was framed a constitution reproducing the essentials of the Spanish instrument of 1812, and by this turn of events the sovereign was impelled, in 1821, to set sail for the mother country, leaving as regent in Brazil his son Dom Pedro. Fidelity to the new constitution was pledged perforce, but the elements of reaction gathered strength swiftly, and before the close of 1823 the instrument was abrogated. The only tangible result of the episode was the creation of a constitutional party which thereafter was able much of the time to keep absolutism upon the defensive.[869]
696. The Constitutional Charter of 1826: Miguelist Wars.—The death of John VI., March 10, 1826, precipitated a conflict of large importance in the history of Portuguese constitutionalism. The heir to the throne was Dom Pedro, Emperor of Brazil, who as sovereign of Portugal, assumed the title Pedro IV. Having inaugurated his reign by the grant of a constitutional charter whereby there was introduced a parliamentary system of government on the pattern of that in operation in Great Britain, the new king, being unwilling to withdraw from America, made over the Portuguese throne to his seven-year-old daughter, Dona Maria da Gloria, with the stipulation that when she should come of age she should be married to her uncle, Dom Miguel, in whom meanwhile the regency was to be vested. Amid enthusiasm the Carta Constitucional was proclaimed at Lisbon, July 31, 1826, and in August there was established a responsible Liberal ministry under Saldanha. When, however, in 1828, the regent at length arrived in Portugal, a clerical and absolutist counter-revolution was found to be under way, and by the reactionary elements he was received, not as regent, but as king. By a Cortes of the ancient type, summoned in the stead of the parliament provided for in the Charter, Dom Miguel was tendered the crown, which, in violation of all the pledges he had given, he made haste to accept. That he might vindicate the claims of his daughter, the Emperor Pedro, in April, 1831, abdicated his Brazilian throne and, repairing to Portugal, devoted himself unsparingly to the task of deposing the usurper. The outcome of the wars which ensued was that in 1834 Dom Miguel was overthrown and banished perpetually from the kingdom. Until his death, in September of the same year, Pedro acted as regent for his daughter, and under his comparatively enlightened rule the Charter of 1826 was restored and the state was set once more upon the path of reform. Upon his death the Princess Maria assumed the throne as Maria II.[870]
697. Nominal Constitutionalism, 1834-1853.—The reign of Queen Maria (1834-1853) was a period of factional turbulence. There were now three political groups of principal importance: the Miguelists, representing the interests of the repudiated absolutist régime; the Chartists, who advocated the principles of the moderate constitution (that of 1826) at the time in operation; and the Septembrists,[871] who were attached rather to the principles of the radical instrument of 1821-1822. By all, save perhaps the Miguelists, the maintenance of a constitution of some type was regarded as no longer an open question. In 1836 the Septembrists stimulated a popular rising in consequence of which the constitution of 1822 was declared again in effect until a new one should have been devised, and, April 4, 1838, there was brought forward under Septembrist auspices an instrument in which it was provided that an elected senate should take the place of the aristocratic House of Peers for which the Charter provided, and that elections to the House of Deputies should thenceforth be direct. In 1839, however, a moderate ministry was constituted with Antonio Bermudo da Costa Cabral as its real, though not its nominal, head, and by a pronunciamento of February 10, 1842, the Charter was restored to operation. Costa Cabral (Count of Thomar after 1845) ruled despotically until May, 1846, when by a combination of Miguelists, Septembrists, and Chartists he was driven into exile.[872] The Chartist ministry of Saldanha succeeded. In 1849 it was replaced by a ministry under the returned Thomar, but by a rising of April 7, 1851, Thomar was again exiled. At the head of a moderate coalition Saldanha governed peacefully through the next five years (1851-1856). The period was marked by two important developments. July 5, 1852, a so-called "Additional Act" revised the Charter by providing for the direct election of deputies, the decentralization of the executive, the creation of representative municipal councils, and the abolition of capital punishment for political offenses. A second fact of importance was the amalgamation, in 1852, of the Septembrists and the Chartists to form the party of Regeneradores, or Regenerators, in support of the Charter in its new and liberalized form.