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the hostiUties, and that it was they who should be heavily taxed.
"Any one can point out many a man who hardly had a decent
hat on his head before the war and now had a fine villa over that
same head." ("True" — from several benches.)

Krieps (Socialist) remarked that the constitutional assembly
of 1919 would be entered in the annals with a black mark for
its financial muddle. "Politics are at the bottom of everj't.hing
and if a change does not come at the next election the land will
plunge headlong to ruin." (Approval from several benches.)

Nevertheless, in spite of financial comphcations, the govern-
ment proceeded to accept fresh expenditures, assuming responsi-



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THE LUXEMBURG CHAMBER OF DEPUTIES 625

bility for the difficulties that individuals found in meeting the
high cost of living. A special credit of 15,000,000 francs was
voted to provide a bonus to every workman in the land. Dis-
cussion was hot and verbose. On August 12, one deputy,
Lacroix, said: "For my part I consider it my duty to oppose the
motion, for it is imjust, anti-social and menacing to the public
finances. What is public opinion on the subject? Let us be
open. I am not talking of my personal judgment. I express
the opinion of many electors, highly respectable people. They
say that, at the moment when we are appealing to new voters
and proposing a referendum that has two sides, poUtical and
economic, this bill is a mere political election maneuver which
will cost the land large siuns if passed. That is what the public
thinks."

Priim, an Independent, approved these sentiments, but the
Socialist Diderich objected to blocking the measure by the fear
of electioneering. Social solidarity demanded some benefit for
the war sufferers. "The state was sometimes forced to act.
When the state had changed the depreciated German notes for
Luxemburg treasury bills, worth double, a royal gift was bestowed
on every one who had saved German money during the war, —
the large farmers and merchants. That benefit accrued to the
well-to-do people even though their profit was not invariably
just. The laboring class had no share in this. It is therefore
natural and just that the state should now come to the aid of
the poor and, under another form, give them an advantage which
it had already adjudged to those who had, imder the state's
leniency, enriched themselves at the cost of small folk. The
universal high cost of living presses hardest on that class for whom
the bonus is intended." He added incidentally that the whole
situation was due to the utter imbecility of the government.
(Laughter on the Left.)

Gen. Director Liesch: "It is laughable."

Diderich: "You find everything laughable and you do nothing
but laugh."

Liesch: "Sometimes one laughs to avoid tears. Then I have
to laugh at your arrogant self-conceit."



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626 THE AMERICAN POLITICAL SCIENCE REVIEW

Diderich: "It does not equal yours which is unbounded/*

Diderich rambled on at length in justification of his vote for
the bonus and was warmly approved by the Left. He was
followed by Liesch who replied to his assertion that the govern-
ment showed a lack of energy.

GaU: ''But it is true."

Probst: "He has the right to say so even if he is wrong."

Liesch: "And I have the right to protest."

Probst: "Certainly even if you were wrong." (Merriment.)

Liesch: "No, then I would not protest."

Probst: "We shall come to asking the government's permission
to open our lips next."

Diderich: "Yes and submit our speeches for approval."

President AUvries: ''At least allow the government to utter
its opinion."

Thus the discussion dragged on, pimctuated by warmth and
acrimony, and was still in progress on August 13, when a large
body of workmen — the number was variously estimated from
four to twenty thousand — made their way from Esch and sur-
rounded the chamber of deputies demanding the passage of the
act that had been favorably reported by committee. Socialist
deputies went back and forth between their colleagues and the
crowd, whose unruly proceedings ahenated many of their sym-
pathizers. The ultimate passing of the bill was pledged; but
even that was not sufficient to calm the passion of the crowd.
Stones were flimg wildly, smashing over eighty windows in the
chamber, and the deputies ran to shelter. Again, however, the
menacing danger of revolution was averted. The chamber
adjourned to September, and on August 14, the Feast of the
Assumption of the Virgin, the only visible work in progress in
the capital was that of the glaziers repairing the windows of the
chamber of deputies!

The final passage of the act was on September 10; it was
signed two days later by the coimcil of state, and by the grand
duchess on the 20th. The beneficiaries are industrial and agri-
cultural workmen, domestic servants, artisans working for them-
selves if they do not have more than one apprentice, injured



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THE LUXEMBURG CHAMBER OF DEPUTIES 627

persons on half time, widows, and orphans under fourteen, of
persons who would have been entitled to the bonus. It was
necessary to prove nationality or ten years uninterrupted residence
in the land, wages of less than 6000 francs, for the year 1918,
and 165 days of work, days of illness counted as work days,
between January 1 and October 1, 1919. The sum allotted was
from 250 to 400 francs each.

The next subject for the consideration of the chamber was the
long talked of referendmn; and the sessions of the last full week
in September were occupied with discussion of governmental
policy and questions pertaining to economic relations. Many
points, already freely threshed out, were fought over anew.
Dr. Renter was again called upon to justify the subordination
of the government to the conference at Paris, but it was evident
that the rampant revolutionary spirit of midwinter had calmed
down. To be sure a sneer was audible from the Socialists when
the Liberal, Brasseur, reproved the minister of state for permit-
ting the powers to ignore Charlotte during her nine months of
de facto sovereignty. He was reminded without over civility,
that he had not always been so tender of the dynasty. It was
intimated, moreover, that he had used the word Bdche concerning
the sovereign, an assertion denied indignantly amid some con-
fusion of tongues.

But in reality, long before the election day, there was little
doubt about the retention of the dynasty. Straw votes taken
in organizations of various types had showed, moreover, a pre-
ponderating sentiment in favor of economic aflUiation with France
rather than with Belgium and this vote was to be advisory only,
not decisive. Farmers were especially emphatic, as to their
desires. From France, they wanted fertilizers and protection;
from Belgium they feared competition and an influx of Argentine
wheat through the free trade Belgian ports. Yet, a wish for
aflBdiation with French customs was less emphatically asserted
than the determination to retain the dynasty and Charlotte.
There were several thousand less votes cast for the former
question than for the latter. Out of 127,775 on the register,



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628 THS AMERICAN POLITICAL SCIENCE REVIEW

over ninety thousand voters came to the polls.* The Socialists
had proposed to refrain from voting, but there was a split in
the party on that point. One woman, asked by the writer if
she had voted, replied that she could not because her husband
was a Belgian, but added: "I would not, anjrway, it was all a
mere plaiaanterie.^' She refused any further explanation of the
statement.

The government had, however, been so well supported in
upholding the dynasty that it was freer in its action. The
acceptance of the young duchess led to the display of her portrait
everywhere as a symbol of her acknowledged sovereignty. More-
over, the backing given to his policy decided Dr. Renter to hasten
the renewal of the chamber, inevitable in any case within a brief
time, and a general election was appointed for October 26.

Six sessions of the old chamber were held between October 3
and 17. Possibly it was mere chance that the discussions turned
on topics peculiarly interesting to large classes of voters, new
and old. Nor was the referendum finished with its apparent
settlement. Certain deputies were aghast at the confident
reports printed in the French press, and implored Dr. Renter
to explain that popular preference alone had been tested in the
ballot box. The minister replied that journalistic inaccuracy
was not his concern, and that any further explanation would
be an insult to the intelligence of the Peace Conference and to
the chancelleries of France and Belgium, who perfectly compre-
hended the true character of the election. Especially long were
the discussions on the disposition to be made of the railways, and
the fervid espousal of employees' rights ended in a motion that

* The vote on the internal government was as follows:

For retention of the Grand Duchess Charlotte 66311

For retention of the dynasty with another grand duchess 1,286

For introduction of another dynasty 880

For a republican regime 16,885

Blank and invalid ballots 5,113

On the question of economic union:

Union with France . . . 60,135

Union with Belgium 22,242

Blank and invalid ballots 8,607



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THE LT7XEMBUBO CHAMBER OF DEPUTIES 629

a committee of them should be consulted. It was defeated, 22"
to 20. A proposed rise m teachers' salaries evoked flowery
harangues on the simple justice of adequate recompense for
moulding the young minds of the nation and of equal pay for
men and women. The comparative cost of living in town and
coimtry, even to the items of keeping a cow and the cost of
female head gear, were wrangled over, as well as the justification
for half rates to the CathoUc sisters with their restricted desires
for mimdane things. Little final action was taken on any subject
before October 26, when the constituent assembly ended its
stormy life amid cries of ^'Vive la grand dvchesse'' on the Right
and *'Vive la r&puhliqtie^^ on the Left. There were more voices
in the former, but the latter cry had the last word.

The result of the election proved that extension of suffrage
had actually reinforced the conservative party, and the fresh
strength given to the prime minister was immediately available,
in the session opened on November 4. The returns from the
trial of proportional party representation by the scrutin de lisle
were as follows: The Right (conservative Catholics), 27; Social-
ists, 9; Liberals, 7; Independent nationalists, 3; Free peoples'
party, 2. After the publication of the above figures there were
some corrections, but a conservative majority remained assured
as the reapportionment had substituted 48 for the 53 seats of
the previous session.

As soon as the routine of reorganization was completed, with
the former president, Altwies, again in the chair. Dr. Renter
opened formal business by announcing that the marriage of the
grand duchess to Prince Felix of Bourbon Parma was to be cele-
brated on November 6. Derision was heard from the Left at
his phrase, "The coimtry is delighted at the news and shares in
the happiness of the grand ducal family;" but this did not deter
him from proceeding to request a special act of naturaUzation
for the bridegroom and thereby evoking a storm of criticism
more definite than laughter.

The Liberal, Brasseur, complained that if time had been
allowed for a proper consideration, "the grand duchess and her
fianc6 would have been spared the painful discussion of today.



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630 THE AMERICAN POLITICAL SCIENCE REVIEW

• If it be known abroad how easily the Luxemburg chamber can
turn an Austrian into a Luxemburger, I fancy that there will
be much amusement." The speaker objected especially to the
lack of all usual documents, and to the eleventh hour application.
There were many grades of opinion. A committee was appointed
to report at once on the matter — a proceeding that had difficulties,
as an added charge to prepare an address to the bride caused an
immediate resignation of one member and the substitution of
another. The objection that the prince fought in the Austrian
ranks was answered by the assertion that the president of the
French republic himself had received him and that there would
be no international complication on that accoimt. Blum, a
reelected Socialist, took the stand that in all countries where
a female sovereign was legal, there were special restrictions
on her marriage, and that the only reason why they did not exist
in the laws of the grand duchy was that female succession had
never been contemplated until the abolition of the Salic law in
1907, simultaneously with which regulations about the matri-
monial alliance of any grand duchess should have been made, but
were not. Told by August Thorn that he was medieval, Blum
replied that, on the contrary, he was completely up to date,
and international difficulties might soon loom large on the horizon
to prove it. Besides, all that they knew of a complaisant French
attitude towards Prince Felix was hearsay. The chamber had
asked for definite information and had been refused. The Social-
ist, Joseph Thorn, gave a long harangue on the evil principle of
hereditary sovereignty. He was quite willing that Charlotte
should wed the man of her choice, but he was not willing to
permit the marriage to be an occasion for overriding naturali-
zation laws. He was an internationalist* himself, but special
legislation was abhorrent to him. ^^Vive la ripvhlique^^ made
itself heard several times in the course of the debate. Blum
and Mme. Thomas, the woman deputy, and three other Social-
ists moved to suspend the project of the prince's naturalization
until the powers had renewed diplomatic relations and to submit
that same naturalization to a referendum. Both motions were
lost. The committee reported favorably and the measure was



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THE LUXEMBXmQ CHAlfBER OF DEPUTIES 631

carried 25 to 21. A second reading dispensed with, the bill
instantly became law, and Prince Felix was a Luxemburger when
he was married to the grand- duchess on November 6. That
France was not inclined to object was shown by the fact that
when President Poincar6 visited Thionville in February, 1920,
to decorate the city with the legion of honor, the young pair
crossed the frontier to greet him and toasts offered at the banquet
were eloquent with Franco-Luxemburg amity.

The chamber became immediately absorbed in domestic con-
cerns. Could the gratuitous distribution of the daily reports
of the proceedings, the Kammerberichte or les comptes-rendus,
be continued in the face of the price of paper and the increase
of the recipients to 130,000? A proposal to give one copy to
each household was the signal for dissertations on the rights
of servants and on the educational value of the reports. "On
the morrow of the bestowal of universal suffrage the suppression
of free information on governmental action is a crime," declared
Brasseur, who was warmly supported by some, while others
jeered at the idea of their utterances being "educational" to
any public. Others urged that the reports were simply used
for wrapping paper, and again others maintained that the news-
papers were all partisan and that the reports alone gave the
literal truth of the transactions. The recommendation of a two
franc subscription was carried, however, in the face of the clamor-
ous defense of popular rights, and a protest against "candle
paring economies."

A more important question, already fought over meticulously
during the preceding year, was the transfer of certain industrial
corporations from German to allied stock holders. They had
been, it was asserted, dangerous, forming "a state within the*
state." In settling the purchases many and various ^ere the
complications involved; indemnity to the grand duchy for the
injury caused by the presence of German property on Luxemburg
soil; a just price in the face of fluctuating exchange; the pro-
tection of the employees, etc. It was the last named that
afforded some of the newly elected labor Socialists themes for
their speeches: "We are the Labor party, you are its betrayers."



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632 THE AMEHICAN POLITICAL SCIENCE REVIEW

"Is that any assurance for the workman?" "You are defendmg
the dictatorship of capital." "Capital has become so powerful
that not merely the proletariat will be at its mercy, but entire
populations as is already the case in this coxmtry today." "Only
the suppression of the capitalist regime where interest rules and
its replacement by another social order where the collective
interest is sovereign, will disembarrass humanity from the
injustice prevailing today." "As soon as capital is at stake,'
the bourgeois element is solid." These were among the darts
hurled at the supporters of the terms proposed by minister
Neyens, as acceptable for the sale of the most important indus-
trial plants.

In connection with the sale the workmen were allowed to state
their own demands, a list of eleven. They were: (1) recognition
of their unions, (2) sanitary improvements, (3) weekly payments,
(4) 100 per cent increase for over time work, (5) vacations, (6)
apprenticeship as before, (7) revision of salaries, (8) equal pay
for men and women, (9) advancement of workmen to higher
positions, (10) no reduction in numbers or in wages during a
crisis, (11) a forty-eight hour week. Minister Neyens reported
that these had been submitted to the purchaser who had replied
that certain of the points should be studied carefully, 4 and 10
could not be considered, and the others were granted rather
doubtfully.

"There you see what we get," declared Krier, "nothing at
all."

In his final summary of the negotiations, Neyens defended
his course in detail, being especially emphatic in his denial of
the charge of graft. Something had to be concluded before
• November 15, or the men would have been cast adrift; he had
done his best. The sale was accepted, 27 to 12, four deputies
abstaining from taking any part in a transaction which they
disapproved.

A month later Joseph Thorn declared:

"We have no trust in the administration, and the late events
in the chamber strengthens us in the conviction. From the sale
of Gelsenkirch and Differdingen, we can see that the government



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THE LUXEMBXmG CHAMBER OF DEPUTIES 633

is not informed about what goes on in the world. It has no
knowledge of the wishes of the laboring classes which tomorrow
will be the orders. Further the government rests on an arti-
ficial majority of the population behind it. Trusting in this
deceptive majority, the government pursues reactionary
methods."

Yet in the face of all this bitter opposition, the same govern-
ment remains in power. The excerpts given show what the
trend of the debates has been as well as the subjects discussed.
The grand duchy does not worry about a navy, but with that
exception nearly every trouble harassing other countries stares
her in the face while she suffers from some anxieties peculiar
to herself. "Fifteen months since the armistice and no economic
alliance concluded yet," was a reproach forced upon Dr. Renter's
ears with tedious repetition, the number of months only being
changed. He was told that he might as well admit that his
referendum policy was useless. "You (Dr. Renter) played a
dangerous game. You staked all on one card through the refer-
endimi and you are not yet sure whether it were a tnmapl" In
March a special deputation went from the chamber to Paris
for an interparliamentary conference, and the cordial reception
of the Luxemburgers added a new stone to the proposed alliance,
while Belgiima's participation as a third party does not seem
as impossible as it did. Meanwhile, the state of the grand ducal
finances has become very involved, and the latest reports,
received June 1920, are filled with an exhaustive statement of
their conditions and a proposed solution.

Recently the number of cabinet members has been increased
to six, with a different distribution of duties. Two ministers
have been appointed as charges d'affaires at London and
Washington.

In the midst of republican Europe the strange spectacle is
presented of two women, one Catholic, one Protestant, sprung
from the ancient Nassau family, almost the last of the race,
held in hereditary sovereignty by compromises, by a policy much
like the mediating course used by the great Nassau, William
the Silent in the sixteenth century. He was too far ahead of



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634 THE AMERICAN POLITICAL SCIENCE REVIEW

his age to be successful. Under the aegis of his "Je mmn-
tiendrai," Queen Wilhehnina retains her seat on the throne
of Holland, — ^teeming though the land is with advanced ideas.
Grand Duchess Charlotte, with the same family devise, retains
. her semblance of sovereignty in Luxemburg simply because she
is the most available symbol for fulfillmg the people's wish to
"remain what we are." "Afir welle hleiwe wat mir sin," is still
the cry.«

•In addition to the official reports of the chamber of deputies the authori-
ties used are: Eyschen, Paul. Das ataatsrecht dea grossherzogthums Luxemburg,
Ttibingen. 1917; Ruppert, P. Code politique et adminislrative du grandrducU
de Luxembourg, 1907; Fruin, Robert, De zeventien provincien en hoar vertegen-
woordigin in de staten-generaal. 1903.



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CONSTITUTIONAL LAW IN 1919-1920. I

THE CONSTITUTIONAL DECISIONS OF THE SUPREME COURT OF THE
UNITED STATES IN THE OCTOBER TERM, 1919

EDWARD S. CORWIN
Princeton University

The work of the Supreme Court during the term concluded last June
was quite unusual both in the nature of the problems involved and the
importance of certain of the results achieved. The center of interest
in constitutional interpretation has swimg, for the time being at least,
decidedly from questions of state power to those of national power.
This is partly the aftermath of the war, partly the corollary of recent
amendments to the Constitution. By the same sign, the court has
been confronted in recent months with not a few problems of consider-
able novelty — some indeed being questions of first impression — with
the result that it has been called upon to enunciate principles which
must guide its interpretation of important provisions of the Constitu-
tion for years to come. In preparing this review, the unique quality
of the court's work during the period under consideration ought to
determine the procedure. Accordingly the greater part of the space is
devoted to a few outstanding cases, all of which involve questions of
national power, while less striking results have received much briefer
consideration, often only cursory mention.

A. QUESTIONS OF NATIONAL POWER

I. INCOME TAXATION

1. The Stock Dividend Decision
What is ''income" within the meaning of the Sixteenth Amendment?^

^ ''The Congress shall have power to lay and collect taxes on incomes, from
whatever source derived, without apportionment among the several States, and
without regard to any census or enumeration."

By article 1, section 0, of the Constitution, ''No capitation or other direct tax
shall be laid, unless in proportion to the census or enumeration hereinbefore
directed to be taken." It was held in Pollock v. Fanners Loan and Trust Co.,
158 U. S. 601, that a general tax on incomes derived from property amounted to a

636



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636 THE AMERICAN POLITICAL SCIENCE REVIEW

The question may take many forms. In Eisner v. Macomber* it waa
as follows: Is a dividend paid in additional stock of the issuing com-
pany, which is distributed pro rata among the stockholders, taxable as
income of such stockholders? A majority of the court, speaking
through Justice Pitney, answered no, and in so doing set aside a part of
the Income Tax Act of 1916, and by force of stare decisis a part of the
present act.*

''direct tax." The Sixteenth Amendment was designed to overcome the effect
of this decision, but leaves the general provision respecting "direct taxes" stand-
ing. Whether income taxes are now to be regarded as "indirect" seems to be
still a moot question. Compare Justice Pitney's opinion in the instant case
with the Chief Justice's opinion in Brushaber v. Union P. R. Co. 240 U. S. 1.

* 252 U. S. The case was decided, after reargument, March 8, Justices Day,
Holmes, and Brandeis, of whom the two latter prepared opinions, dissenting.



Online LibraryWestel Woodbury WilloughbyThe American political science review → online text (page 62 of 77)