On ReConFort’s Research Programme in General

The traditional approach in legal history focuses on constitutional documents, believing in a nominalistic autonomy of constitutional semantics . Looking onto the European Constitutionalism of the late eighteenth and nineteenth century, even a written constitution cannot statically fix the administrative-legal relations of power, as they depend on the legal interpretation and the conflict mentality of the political decision-makers. In the context of ReConFort,Footnote 1 constitution is understood as an evolutionary achievement of the interplay of the constitutional text with its contemporary societal context, with the political practice and with the respective constitutional interpretation. Such a functional approach keeps historic constitutions from being simply log books for political experts. It makes apparent how sovereigntyFootnote 2 as constituted power translates ways of thinking and opinions in the Burckhardt ean senseFootnote 3: sovereignty can only be exercised with the consent of the ruled. Even the constitutional cycle anticipated by Polybius has presupposed that the politeiai of monarchy, aristocracy and democracy degenerate, where sovereignty is not accepted or gambled away.Footnote 4

The interest in the interdependencies between constitution and public discourse reaches the key goal legitimation: Thomas Paine s response to ‘Mr. Burke’s attacks on the French Revolution’ rests on the argument that legitimacy is not transmitted through tradition or established institutions, but rather solely through the consent and agreement of the citizens.Footnote 5 Not the text-body of the constitution, but rather the agreement of those to be ruled by the pouvoirs constitutés creates sovereignty. For David Hume , the discourse-dependency of the state power is axiomatic: ‘it is […] on opinion only that government is founded’ (1758).Footnote 6 Sovereignty is considered to depend on the belief of the subjects and the political élites in its utility and legitimacy .Footnote 7 The ‘belief in sovereignty ’ which went along with the founding act of forming a constitution becomes palpable in the ‘religious affinities’ of the constitutional preambles in the eighteenth century: Such an affinity does not mean the recourse of the constituents to divine authority for the written text, but rather the presentation of central constitutional guarantees as philosophical truths with a claim to eternal validity.Footnote 8 This is contextually why the constitutional debates in the northamerican colonies are read as ‘creeds of the new time’ (“Glaubensbekenntnis der neuen Zeit”).Footnote 9

The litmus test of the communication dependency of constitutions is their indecisiveness in crucial points. This is not only elaborated for the pouvoirs constitué s,Footnote 10 but is also true for the pouvoir constituant , the constituent sovereignty . Under the impression of the Jacobinian reign of virtue and terror and the struggle for resistance of the allied monarchies against the revolutionary army of the Republique Française, the republic got discredited into antagonism with monarchy and there was a remarkable ‘renaissance’ of the monarchy in the early constitutionalism.Footnote 11 The constitutional formation in the strict legal sense, i.e. the act of constituting,Footnote 12 could ‘defend the monarchy from the threat of the people’, as explained for the Albertine Statute 1848,Footnote 13 could be a ‘legal decision of a national constituent assembly ’ as in the Belgian Case 1831,Footnote 14 could borrow from the old notion of a fundamental law as in the Polish Case 1788–1792Footnote 15 or try to remain in between as the reference to the ‘Nation as sovereign’ in the French September Constitution 1791 does, which has influenced the Cádiz Constitution 1812. Therefore, constituent sovereignty is the perfect starting point for the research project on communication dependency of constitutions, as it is the legitimizing explanation of the constitutional process .

Method of Comparative Constitutional History

Targeted Sources of ReConFort

ReConFort’s approach to the interplay of constitutional processes and public participation relies on a systematic analysis of constitutional documents in combination with reflective documents of acting political stakeholders.Footnote 16 The targeted sources comprise constitutions and constitutional materials,Footnote 17 relevant cross-border private correspondences of protagonists and their publicist activities including exile literature, regional/national and cross-border constitutional journalism in public media. The last category of sources opens up the research approach onto the reporting on constitutional affairs in a selected number of leading mediaFootnote 18 or specialised/exile media.Footnote 19 Both categories, the first being determined by the cut off-principle (largest readership) and the second by specialisation on certain opinions, have a special regard to the causative interdependencies between media dissemination and the politicisation of the population. Such an analysis of public media in the eighteenth and nineteenth century combine the quantitative reconstruction (surveying) with the subsequent qualitative elaboration of typological key passages (cognitive, classificatory or narrative). The following key passages (topoi) form the debates as semantic paradigms:

  • Constituent Sovereignty/National Sovereignty =ReConFort, Vol. I

  • Precedence of Constitution = ReConFort, Vol. II

  • Judiciary as Constituted Power

  • Justiciability of Politics.

Methodological Challenges: Finding the Tertia Comparationis

Any comparative legal historical approach is burdened with a double hermeneutical circle . First, there is ‘an unalterable difference between interpreter and author that originates from the historical distance’.Footnote 20 Secondly, the past linguistic usage is enshrined in the constitutional development of different legal systems. The legal terms ‘nation’ and ‘sovereignty’ are not interchangeable in Belgian, English, French, German, Italian, Polish and Spanish sources and thus not comparable by themselves. Language has to be accepted as the frontier of its user’s world.Footnote 21 Therefore, different historical formulations of the national sovereignty cannot serve as tertia comparationis in a historical comparison. This is obvious for everybody consulting the following linguistic expressions: In the introduction and in Art. 2 of the Polish May Constitution 1791 the nation is equivalent to the nobility , in the French September Constitution 1791 (Tit. III, Art. 1) the nation is a political point of reference next to the monarch , and the address of the General and Extraordinary Cortes of Cádiz to the sovereignty of the nation in Tit. 1, Art. 2 means to annul the declaration of abdication given in Bayonne in favour of Napoleon.

If one searches for benchmarks abstracted from the constitutional wording, the contexts of the claims for national sovereignty are useful tertia comparationis . So my paper does not deal with national sovereignty as an abstract perception of the political history of ideas, but as the political polemics in concrete situations of conflict. Common to all contexts is the use of national sovereignty as a legal starting point (‘big bang-argument’). This is coincident with the normativity as goal of the modern constitutional concept arising out of the revolutions at the end of the eighteenth century.Footnote 22

All references to national sovereignty mark a process of juridification of sovereignty , i.e. political legitimation is turned into legal legitimation. A constitution is a legal codification to fix the political order as a legal order. This solves the paradox of the Bodin ian sovereignty, which could not explain the legal bindingness at the moment of concluding the social contract . According to Bodin binding obligation was only thought of in relation to already existent law.Footnote 23 It is only with the differentiation between the sacrosanct and the dispositive law that the legal term of the constitution of the eighteenth century manages to justify the self-commitment of political power without the concept of the state contract (Staatsvertrag). National sovereignty is the synonym for the juridification of sovereignty by means of the constitution.

Constitutionalisation by Public Sphere

Press Media as Roadster of Politicisation

In his leading titles ‘The Structural Transformation of the Public Sphere’Footnote 24 and ‘Communication and the Evolution of Society’Footnote 25 the German philosopher Jürgen Habermas argues that the emergence of the public sphere is twinned with the ‘growth of democracy, individual liberty and popular sovereignty and the emergence of a self-conscious bourgeoisie and a reasoning public’.Footnote 26 As the countries of my comparative overview all share constitutional formation (i) in the stress field of external hegemonic powers (French Revolutionary Wars, Polish Partitions, French occupation of Spain during the Napoleonic wars, Belgian secession from the United Kingdom of the Netherlands, German Restoration under the big four of the Vienna Congress , Franco-Austrian rivalry over Italian territories) or (ii) in the light of internal rivalries between ethnic-cultural or language factions (competing models for citizenship in post-1815 German territories and the Habsburg Empire, conflicts between Flanders and Walloons), the constitutional formation has a key role for ‘national’ self-determination under external encroachments. Therefore publicistic debates on constitutional matters do not represent technical items for specialized elites, but are the mouthpiece of a general ‘politicised’ public. Due to the general atmosphere of upheaval, the reports of constitutional affairs are at the core of a fundamental politicisation of the broader population. The constitutional debates in the Belgian National Congress 1830–1831 are accompanied by the reports of the leading journal Politique (Liège), which was the flagship of the independence movement.Footnote 27 And the national unification movement il Risorgimento (resurgence) is named after a newspaper founded in 1847 in Turin by the Sardinian politician and architect of the Italian unification Cavour . The outburst of political periodicals from 1848 onwards (Il nazionale, Gazetta del populo, La concordia) prove the Italian national liberation movement to be a product of the reciprocal communicative dimensions of constitutional processes . In the pre-revolutionary feudal society, people were born into certain estates of the realms, without the chance for change. Newspapers and journals as mass means of dissemination and communication motivated a broad politicisation and served as transmittors of the new ideas of the modern constitutional concept .Footnote 28 The Allgemeine Zeitung, Deutsche Zeitung, Kölnische Zeitung, and the Neue Berliner Zeitung were mouthpieces of the German liberalism and, together with other political writings,Footnote 29 accompanied the debates regarding the concept of national sovereignty in 1848/49.

Furthermore, the political impact of the press-based public sphere is mirrored by the rigorous censorships which governments of the eighteenth and nineteenth century invented to ‘regulate the flow of ideas’.Footnote 30 Press freedom in the liberal understanding could first be found in England through the expiration of the Long Parliament’s Licensing Act 1695 .Footnote 31 The emancipation of the bourgeoisie was traced by the turn-up of the constitutional guarantees of Press freedom .Footnote 32

Importance of Cross-Border News: The American Revolution in the Polish Public Discourse

With the French revolution and the Napoleonic wars the demand for news increased, and especially for news from abroad. In his monograph on French, German, English and American journalism Jürgen Wilke illustrates the dominant position of foreign affairs in news coverageFootnote 33 and explainsFootnote 34 the substitute-function of foreign matters over domestic matters: It was safer against censorship to report on external political variables. In my contribution to the Polish Legal History Conference in Krakow 2014Footnote 35 I reported in length about the American Revolution in Polish journalism. The main lines of argumentation are recapitulated here, as the rhetorical use of the American struggle for freedom against Westminster both by the ‘patriotic’ reform minds as well as by the ‘old-Republican’ sustainers is a masterpiece of communication dependency on constitutional debates . Yet the presentation of the constitutional draftFootnote 36 to the representative chamber on May 3, 1791 was connected to the Anglo-American republican discourse .Footnote 37 Kołłątaj ’sFootnote 38 dedication for the representation of the cities in the Sejm referred to the democratic ideas of Franklin and WashingtonFootnote 39 . The role model of the American society lacking estate differences inspired the editor of the Pamiętnik Historyczno-Polityczny Piotr Świtkowski to discuss the rights of the townspeople in his article about the United States. In America, it was ‘the personal accomplishment and not noble birth (paraphrased)’Footnote 40 that counted, George Washington being a favorite example. Reading the pro-patriotic Gazeta Narodowa i Obca , one is convinced by Julian Ursyn Niemcewicz : ‘Nobody of us knows who the father of Washington or the grandfather of Franklin was. … But everybody knows and will remember in the future that Washington and Franklin freed America (paraphrased).’Footnote 41 Washington and Franklin leave even more marks in the Gazeta Narodowa i Obca as media vehicles for the Polish Constitutionalism; the introductory speech of President Washington in the first Congress is printed in two consecutive editions in January 1791Footnote 42 when the Polish constitutional draft was more and more opposed by the old-Republican opposition of conservative noblemen led by Seweryn Rzewuski (1743–1811). Franklin’s praise of the American constitution Footnote 43 was published in order to advertise for the Polish reform project.Footnote 44 Occasionally, the press reports about America were formulated as letters from America – with a clear tenor against the intrigues of the aristocratic opposition.Footnote 45 In the Pamiętnik Historyczno-Polityczny, one finds Piotr Świtkowski’s history of America, ‘which had only shortly come into its political existence under the flag of liberty (paraphrased)’Footnote 46 and whose success was meant to promote the acceptance of the Polish constitutional efforts.

Not only the patriotic reform powers, but also the old-Republican constitutional opponents make use of the American role model. In his chronological information about the loss of liberty under a hereditary monarch (Wiadomość chronologiczna, w którym czasie, które państwo wolność utraciło pod rządem monarchów sukcesyjnych 1790), the Field-Hetman and old-Republican spokesman Seweryn Rzewuski devalued the English hereditary monarch by viewing the American struggle for liberty as being incompatible with liberty: The Americans did not have ‘any other option but to fight the English crown (paraphrased)’.Footnote 47 Franklin and Washington had ‘unmasked the true spirit of the English liberty (paraphrased)’.Footnote 48 The equation of the hereditary monarch and despotism is explained through the English suppression of the American colonies.Footnote 49 According to Rzewuski’s essay on the succession to the throne in Poland (O sukcesyi tronu w Polszcze rzecz krótka 1789), the traditional old-republicanism with elective monarchy and liberum veto corresponds to American federalism if transferred to Polish circumstances.Footnote 50 A few anonymous authors supported Rzewuski’s position of the elective kingdom as a guarantee for liberty by reference to the newly founded Republic of America.Footnote 51

Stanisław (Wawrzyniec) Staszic (1755–1826)Footnote 52 though, answers Rzewuski’s polemics with the warning that the (noble) Republic cannot exist between despotic monarchies.Footnote 53 For the liberal reform wing the American role model strengthens the conviction that the executive power is best vested in a hereditary monarch,Footnote 54 as it had been idealised by Montesquieu ’s description of the French monarchy (II, 4 De l’Esprit des Lois).Footnote 55 In his series of essay in Pamiętnik Historyczno-Polityczny , Świtkowski compares the Polish and American constitutional circumstancesFootnote 56 and draws the reader’s attention to the fact that the exterior political threat of Poland demands a strengthening of the executive as well as the introduction of a hereditary monarchy.Footnote 57 Support comes from Ignacy Potocki who regrets that Poland cannot be a general republic or confederation according to the given circumstances, but only a constitutional monarchy.Footnote 58

References to the National Sovereignty in the Historic Discourses of the Eighteenth and Nineteenth Century Europe

In General: The Nation’s Start as Singular State Organisational Legal Point of Reference

‘Long live the nation!’, the exclamation of thousands of soldiers from the French Revolutionary Army during the cannonade of Valmy on September 20, 1792 astonished the Prussians . The infantry banners of the Revolutionary Army showed the maxim ‘The King, the Nation, Freedom, the Law’. The war correspondent and companion of the Duke Karl August von Sachsen-Weimar Johann Wolfgang von Goethe noted in his late (1820/1821) autobiographical report Kampagne in Frankreich (Campaign in France): ‘Here and on this day begins a new era of world history’.Footnote 59 Leaving aside the doubt of the literary studies,Footnote 60 the French perception as a victory of the nation is more important than the popularity of Goethe’s words concerning Valmy. It was no longer a victory of the French King: on September 21, 1792, one day after the cannonade, the King was declared to have abdicated and the Republic was proclaimed. The Victory at Valmy was historic since the Revolutionary Army consisting of unexperienced volunteers was unlikely to win against the higher ranked Prussian army. And the news of the victory at Valmy was decisive for the consolidation of the rule of the convent in Paris.Footnote 61 It is not by chance that the Republic Constitution of (24 June) 1793 contains elaborate provisions on who is a member of the nation and who is not.Footnote 62 The Acte constitutionnel de la République attributes in Art. 7 the sovereignty to the people, defined as the entity of the French citizens.Footnote 63 Art. 4 defines the citizenship precisely for any French men born and bred of 21 years, for any foreigner of 21 years living in France for one year, who sustains himself by his work or has acquired ownership, married a French woman, adopted a French child or supported a French old man, and for any foreigner who was declared by the legislative corps to have merits for humanity.Footnote 64

Napoleon declared the day of Valmy the beginning of the French triumphal procession in Europe, which was ‘crowned’ with his emperorship and had the canons brought into position before Les Invalides where even nowadays they can still be marvelled. And the ‘King of the Citizens’ Louis-Philippe I (reg. 1830–1848) who served as an officer in the Revolutionary ArmyFootnote 65 let immortalize the canonade of Valmy by means of painting (1835) by Jean Baptiste Mauzaisse (1784–1844) in the gallery of heroes in the Chateau de Versailles. What Goethe’s genius had seen was that the term ‘nation’ had entered the stage of world history as an abstract point of reference. To make this turning point clear we have to go back to the pre-revolutionary French Enlightenment.

The Marquis d’Argenson (1696–1764),Footnote 66 a close friend of Voltaire, noted in his Memories Footnote 67 that ‘the words nation and fatherland were not common under Louis XIV and that there was not even yet an idea of them.’ Since the adjective ‘national’ was not existent as a keyword in the Encyclopédie, it was consequently also not contained in Voltaire’s Dictionnaire philosophique 1764. For the lemma ‘nation’Footnote 68 the encyclopédists (1765) follow the lexical tradition of a geographic connotation since the Dictionnaire Furetière 1690.Footnote 69 Up to the revolution, the relations which described the (state) organisational subordination were defined personally from human to human: the civil servants were servants of the King ; the commanders in chief of the army, the ambassadors, the members of the judiciary were all the King’s. There was no unity or national coherence beyond the social ranks and above all, the élite of the Enlightenment was predominantly cosmopolitan.

Rousseau’s and amongst all others Sieyès’ ideas were the masterpieces to explain the new legal state organization since the victory at Valmy was evidently no longer a victory of the French King.

For the first time, the modern term ‘nation’ appears in the article Essai sur la constitution de la Corse where Jean Jacques Rousseau wrote: ‘All people are to have a national character and if it were to be missing, it would have started by giving it one’.Footnote 70 And he explains it as identification with the nation by both his body and spirit, his will, his feeling to belong to it with all his mightFootnote 71 and even more pathetic by dying for the nation and – what is more relevant for us legal historians – by obeying all its laws and its commands.Footnote 72

This text is pivotal for the coinage of the modern term of nation; for Rousseau, the nation is the point of reference of participation, the laws and the political decision-makers. The nation is no longer the collective term for all those who live within the borders of the territorial state or under the centralised monarchical administration, but for the first time appears as a singular self-sustaining political subject, as a state organisational legal point of reference. Nevertheless, the Rousseauian sovereign formed by the common will (volonté générale) is not on the mainroad of the French discourse , even if it served as justification that the Third Estate made itself the constitutional assembly by abolishing the estatal representation and the despotic majority of the first two estates. The metaphor of the volonté générale as combination of natural law contractual theory and popular sovereignty in the Contrat Social (1762) is constantly realised in the state,Footnote 73 namely in the form of statutes – actes de la volonté générale . Footnote 74

Rousseau declares the content of sovereignty to be found exclusively in legislation, which is reserved for the people as a whole. The executive is a non-sovereign organ for carrying out laws. The Rousseauian sovereign as political body (corps politique) of the legal rules about the rights and duties of the citizens is absolute. With the passing of the social contract , every citizen alienates his rights of the state of nature to the sovereign (aliénation totale).Footnote 75 The absolute freedom, which the individual transfers to the sovereign, enables him to do everything in absolute freedom.

Deriving sovereignty from the general will leads to the following pivotal question: the identity of individual and common interest. As an expression of societalisation,Footnote 76 the common will ( volonté générale ) is ‘not an agreement between the superior and the inferior.’Footnote 77 Neither is it the sum of the particular wills (volontés particulières). Rather, to work out the general will, it has to be filtered from the particular wills in a dialectical process of decision. The general will aiming at this can be found in the judicial-political decision making procedure of the legislature, where the particular wills, by mutual contradiction, cancel out each other. Rousseau holds the so-formed general will to be the guarantee of the objective good, the ‘bonum commune’ of classical philosophy; the danger of a dictatorship of truth of the majority arose only under Robespierre and the Jacobins. The volonté générale is the phrase for the central statement of the Rousseauian constitutional draft for PolandFootnote 78 and Article 6 of the Declaration of the Rights of Man and Citizen of 1789: freedom arises from participation in legislation.Footnote 79

The absoluteness of the sovereign and the fact that it is rooted in the will of the citizens has two consequences: sovereignty is based on the political and legal equality of all people, which is acquired through the social contract , and is inalienable and indivisible.Footnote 80 The intellectual precondition is the equality of all people under natural law laid out in the Discourse on the Origin and Basis of Inequality among Men (1755).Footnote 81 Representation and separation of powers are excluded.Footnote 82 The indivisibility of governmental power is the consequence of the indivisibility of the sovereignty of the people .Footnote 83 The irrepresentability of sovereignty (‘l’irréprésentabilité’) leads Rousseau to the denial of any representative assembly or estates’ assembly in which the right to vote of the representatives of the people called by the monarch is not based on the person but rather their social class.Footnote 84

Rousseau’s logical connection between lawmaking and equality was refined by the polemic paper ‘What is the Third Estate ?’ (1789) into the representation of the volonté nationale , i.e. of the will of the majority of the National Assembly.Footnote 85

The Various Interpretations of National Sovereignty in the Works of Sieyès

The actual architect of national sovereignty is Emmanuel Sieyès, the author of the pamphlet ‘What is the third estate?’ and the protagonist in the political discussion after the convocation of the general estates up to the debate on the royal veto . The declaration of the Third Estate as the National Assembly on June 17, 1789Footnote 86 which resembled a coup d’état, was not enough to transfer the sovereignty of the King onto the nation.Footnote 87 For that, the development of a new collective identity and a new political subject was necessary: the nation. The creation of the modalities of the exercise of the sovereigntyFootnote 88 was also necessary: the constitution. Sieyès himself defined the constitution in his hardly known Discours of the Second Thermidor III (July 20, 1795) as ‘almost complete in the organisation of the central public creation’ and he defined the central public room as ‘the political machine that you create to create the law, for … the execution of the law under all aspects of the Republic’.Footnote 89 For Sieyès, national sovereignty and represented government are logical twins.

Following the French historiographical state-of-the art,Footnote 90 the studies of Elisabeth FehrenbachFootnote 91 and their profound elaboration by Pasquale Pasquino Footnote 92 three interpretations of nation were present in the political vocabulary of 1789, predominantly influenced by Sieyès.

Anti-estate Societal Meaning of National Sovereignty

The nation is a homogeneous and self-sufficient entity as opposed to the estate society, which the convocation of the general estates by Louis XVI on May 5, 1789 tried to reactivate. The nation, which was constituted by the declaration of the Third Estate as the National Assembly developed as a new political subject and embodied the (revolutionary) claim to representing everything of a part (of the Third Estate) for the entirety. This exclusionary consequence for the privileged estates was criticised by the speaker of the moderate monarchists in the constituante Pierre-Victor MalouetFootnote 93 : ‘But they [the clergy and the nobility ] are part of the Nation […] and you, the representatives of the commoners, why do you call yourself the only representatives of the Nation?’.Footnote 94 The starting point for this term of the nation, which excludes the aristocracy [and thereby expressing the state citizen equality] is the first chapter of Sieyès Tiers État: ‘Such a class [the nobility ] is absolutely unknown to the nation by its idleness’Footnote 95 since it does not work, does not create value or bears public functions. Even more precise is the abridge version of the Tiers État which is kept in the French National Archives and which Pasquino has managed to edit. There you can read the equalization of 3rd estate and nation in Sieyès original soundtrack: “Le tiers n’est point le tiers, c‘ est la nation, et si l‘ on veut distinguer des non-privilégiés les deux classes privilégiées, il faut alors dire: le clergé, la noblesse, et la nation.”Footnote 96 The pathetic ending of this pamphlet concludes with the address to the French people as Spartanian Helotes.Footnote 97

Similar, but more pointedly anti-monarchical is the second meaning of nation in 1789.

Anti-monarchical Meaning of National Sovereignty

The nation and the theory of national sovereignty are addressed against the twelve hundred years of French monarchy. The monarchy by divine right (le droit divine) is still the characteristic wording of the edits against the Parlement de Paris under the redaction of the chancellor Maupeou Footnote 98: “Nous ne tenons notre couronne que de Dieu: le droit de faire des lois par lesquelles nos sujets doivent être conduits et gouvernés nous appartient à nous seuls, sans dépendance et sans partage;”Footnote 99 It is exactly this absolutistic claim to ‘hold our crown … for the grace of God’ and the claim for exclusive monarchical legislation ‘the right to make laws by which our subjects will be governed is to us alone without any kind of dependence and without any kind of sharing’– which the second meaning of nation in 1789 aims at putting in the museum of history. There are many voices to question any monarchical legitimation. Pasquino quotes the ‘Mémoires ou Tableau historique et politique de lAssemblée constituante’ (1797) of Antoine de Rivarol on the first months of the French revolution : “La couronne n’ est plus qu’ une ombre vaine” (‘The crown is nothing more but a vaine shadow’).Footnote 100

Despite the monarchical position as head of the executive and integral part of the legislative, the September Constitution 1791 does no longer cause illusions due to the only suspensive royal veto (Tit. III, Chap. III, Sec. 3, Art. 1, 2).Footnote 101 Sieyès wants to eliminate the crown’s integration into legislation. In his manuscript ‘Représentation et Élections’ 1791, Sieyès argues against any monarchical participation in the legislation, denying even a suspensive veto of the king, otherwise the legislative decision-making process would be divided into two branches, in a national will and a hereditary monarchical will: “Suivant le comité le corps législatif se divise en deux branches, l’Assemblée et le roi. Dans ce cas le pouvoir législatif est formé de deux volontés, la volonté nationale exercée par le système temporaire des élus et la volonté royale héréditaire.” And he closes this rarely known manuscript with the polemic, that ‘the king is not a minister in the national interest next to the national assembly, therefore he is not a legislative representative.’Footnote 102 Such a theoretical position is congruent with those of the President of the Constituent National Assembly Jacques Guillaume Thouret Footnote 103 or the Jacobine Antoine Barnave .Footnote 104 And the highlight of this democratic-republican use of nation is the explanation of the national sovereignty in the 1793 constitution as popular sovereignty .

The National Sovereignty as Idea or Principle of an “ordre nouveau”

Sièyes’ ideaFootnote 105 of the nation is a principle that is incompatible with aristocratic privileges and legitimizes the civil war against the Ancien Régime as new “droit commun”, as “ordre nouveau”. This (modern) term of the nation which has been coined in the Fifth Chapter of the Tiers État is the expression of the state citizen equality and carries through with the Tennis Court Oath: ‘The nation exists before all, it is the origin of everything. Its will is always legal and it is the law itself.’Footnote 106

Now the Third Estate can declare itself the National Assembly , the exclusive representative of the nation construed as the sovereign: “Une société politique, un peuple, une nation sont des termes synonymes.”, formulates Sieyès’ manuscript ‘Contre la Ré-Totale’ (1792).Footnote 107 If one opposes the absolutistic sovereignty attitude of the Leviathan according to which it is impossible to think the sovereign without the people,Footnote 108 the new legal conception (of the nation) becomes evident: the nation consists before all and is the origin of all. Thus, the nation can exist independent of the process of the representation and can be carrier of the pouvoir constituant .Footnote 109

Thereby, for the first time, the (normal) legislative power can be distinguished from the constituent assembly . Sieyès is the person who first formulates the distinction between pouvoirs constitués and pouvoir constituant in his preliminaries of the French Constitution: ‘A healthy and useful idea was established in 1788, that is the idea of the division between the pouvoir constituant and the pouvoirs constitués. It belongs to the discoveries that have found their way, it is due to the French’ (his discours of 2 thermidor III).Footnote 110 Often, the pouvoirs constitués are called pouvoirs commettants by Sieyès, especially when they have been voted for.Footnote 111

Constitution-creating sovereignty of the nation resolves the self-referring paradox of the sovereignty as an unfixed power of self-bindingness, which had been left in the open by social contract theories.Footnote 112 With the fiction that the will of the nation itself is always lawful and that it is the law in itself – designed by Sieyès in the cited fifth chapter – the entire decisive process of the juridification of the sovereignty is initiated.Footnote 113 This is so, since the constitution is understood as decision (acte impératif de la nation) according to Émile Boutmy: ‘a decision which creates the positive law and leads back to a conception of the constitution’.Footnote 114 Essential for the understanding of Sieyès sovereignty concept, articulated in his third estate-pamphlet, is the differentiation between pouvoirs constitués and pouvoirs constituant.Footnote 115 This is elaborated further in his not well-known abridged version of the pamphlet ‘What is the third estate?’: From the non-interchangeability of the pouvoirs constitués and the pouvoir constituant Sièyes concludes that the ordinary legislative body cannot touch the constitution.Footnote 116

Even less well-known is Sieyès’ manuscript ‘Limites de la Souveraineté’ (limits of the sovereignty),Footnote 117 where he specifies the exclusion of any absolutistic political power by the sovereignty of nation and its immanent differentiation between constituant assemblies and ordinary legislative bodies. Thereby he seems to anticipate the liberal state theory of the Kantian Metaphysics of MoralsFootnote 118 and points out that any kind of absolutistic omnipotence of the constituted powers (pouvoirs constitués) is excluded. The political power (le pouvoir politique) is limited by the political object of society (l’objet politique de la société).Footnote 119 The latter has the same meaning as Locke ’s extra-statutory natural law as an immanent limit of every exercise of power with the freedom guarantee of the common law before the prerogative.Footnote 120 Sieyès’ pamphlet declares the protection of liberties and rights as a political object of any societal association. The majority’s decision becomes law.Footnote 121 If the constitution doesn’t exist before the majority’s decision it falls within the nucleus of the association-contract conducted under the unanimous will of the people. Therefore the constituent sovereignty is under control by means of the personal veto of every dissenting individual. Even if the constitutional decisions have to be taken for practical reasons by the majority, the guarantee of the minority resides within the act of the association and therefore within the legal text of the constitution decided upon in the constituent national assembly. This immanent guarantee is the equivalent of the bonum commune by the political philosophers since ancient times and bars the sovereignty executed by the majority from unifying all of the political powers, from disorganising them and from reframing their constitutional organisation.Footnote 122 And for Sieyès this imminent guarantee is the safeguard for personal liberty by means of constitutions. Thereby despotism is excluded before the legal second in which the ordinary legislative body (deciding on statutory law by the majority) is established as pouvoir constitué.Footnote 123 Sieyès’ conclusions from his differentiation between the decision on constitution and the passing of ordinary legislative acts in his ‘Limites de la souveraineté’ are expressly against Rousseau : ‘Respresentation can never be a direct act, and under the constitution it is always divided, never accumulated and always dependent on the constitutional laws.’Footnote 124

With the introduction of the nation a second point of reference besides the monarchy comes into existence. The monarch is indeed disempowered, but not abolished. In my perception, this means a quite decisive process of juridification of sovereignty .Footnote 125

This can be traced via the elaboration of Sieyès’ concepts in Lafayette’s draft of the Declaration of Human and Civil Rights July, 11 1789. The Declaration of Human and Civil Rights in the National Assembly on August 26 to November 3, 1789 relies indirectly on Lafayette’s draft: “Le principe de toute souveraineté réside dans la nation.Footnote 126 Nul corps, nul individu ne peut avoir une autorité qui n’en émane expressément” (‘The principle of the entire sovereignty is vested in the nation. Nobody, no individual can have an authority which is not derived therefrom’).Footnote 127 ‘The origin of all sovereignty is intrinsic to the nation’, it is formulated in the declaration of the human and civil rights of 1789. In the September constitution of 1791 , Title III, Article 1 repeats: ‘The sovereignty is unique, indivisible and non-susceptible to time-barring. It only belongs to the nation. No part of the people and no singular person can appropriate its exercise.’Footnote 128 Such an understanding corresponds with Sieyès’ periphrasis of legal equality: ‘I think of the law as being in the centre of an enormous sphere: all citizens without exception find themselves in the same distance on the surface, all depend equally from the law, all give their freedom and belongings under its protection. … All these individuals …, enter into obligations and trade, always under the same guarantee of the laws … By protecting the common rights of every citizen, the law protects every citizen in everything until the moment when that what he wants begins to be opposed to the common interest.’ (translat. U.M.).Footnote 129

The wording of the sovereignty of the nation in the French September Constitution 1791 does not only manage to integrate two sovereigns, but also joins the constitutional idea with national integration.Footnote 130 Symbolizing the revolutionary pathos for equality, the idea of a French nation was expanded from that of a few privileged to all of the citizens, with a corresponding census. Thus, the French Constitution of 1791 created a right of citizenship (Tit. II, Art. 2–6),Footnote 131 and announced civil equality (Tit. I),Footnote 132 even though three sevenths of French men (due to poverty) and French women altogether were excluded from the right to vote (Tit. III, Chap. I, Sec. II, Art. 2),Footnote 133 and the right to stand for election (Tit. III, Chap. I, Sec. III, Art. 3).Footnote 134 The demand for civil equality expresses itself also in the modern understanding of laws as abstract/general norms,Footnote 135 and in the postulate of a unitary, legally equal nation as a rationally based unit, in which individuals may realise their pursuit of happiness. The antonymFootnote 136 of the happy constitution (heureuse constitution) and the pre-constitutional state (agrégat inconstitué) corresponds with the bonum commune of the antique political philosophy in the enlightened adaption.Footnote 137

In relation to Sieyès’ quoted explanation of legal equality, the King himself or members of the former privileged estates are also included. Therefore, the monarchical principle was held compatible with the sovereignty of the nation (Tit. III, Chap. II Sec. I, Art. 2).Footnote 138 It is the abstractness of national sovereignty that allows a monarchical reading of the September Constitution 1791. It is again Malouet , who opens our eyes for the monarchical impact within the process of juridification by constitution: “Le Corps législatif est seul indépendant, dans le royaume, de toute personne et de toute autorité. Le Corps législatif, et le roi à la tête, voilá la représentation exacte de la souveraineté nationale; mais le monarque représente à lui seul la souveraineté de la loi. Ainsi, tout ce qui peut porter atteinte à sa dignité, à sa prérogative d’indépendance, à son autorité légitime, est aussi criminel en fait qu’absurde en principe, si l’on veut conserver la monarchie.”Footnote 139 Neither the implementation of Sieyès’ ideas into the declaration of 1789 nor into the text of the September constitution 1791 were antimonarchical.

Openness of the Political Vocabulary of 1789 for the Rankly Oriented Use of Nation by the French parlements

Besides Sieyès’ connotations of the nation, there is one other influence on the political vocabulary of 1789, which derives from the usage of the French parlements as origin of the estate resistance since 1760. From the registration right (droit de remontrance avant l’enregistrement) the parlements derived their right to be the (estate) guardians of the right of the nation,Footnote 140 which had been eternalized by Montesquieu in his idealisation of the French monarchy (II, 4).Footnote 141 At the heart this is about the rest of the estate restrictions of the absolute monarchy. In my habilitation ‘Recht und Justizhoheit’ (‘Law and Judicial Sovereignty’), I elaborately took a stance concerning the pre-revolution of the parlements, Footnote 142 as defendant of the old constitution of the Kingdom and of the estate rights which are described as natural law; the parlements describe themselves as cours souveraines Footnote 143 in their remonstrances and notably the Parlement de Paris since 1788 as “représentants de la nation”.Footnote 144 The King was well aware of the danger as his speech in the Parlement de Paris in 1766 on the occasion of a lit de justice, known under the name Séance de la flagellation made evident: “Les droits et les intérêts de la nation, dont on ose faire un corps séparé du monarque, sont nécessairement unis avec les miens, et ne reposent qu’un mes mains” (‘The rights and the interests of the nation of which one dares to make a body separate from the Monarch are necessarily united with mine and extend only to my hands’).Footnote 145 A very similar read is the dissertation by the court historian and apologist of the Ancien Régime Jacob Nicolas Moreau of 1789 by the title ‘Défense de notre constitution monarchique francaise’: ‘I have said it without reference to the nation’.Footnote 146 These ideas of the prerevolutionary parliamentary opposition against the French crown have been well known in the National Assembly since 1789. For contemporaries, they open up the interpretation of the nation as canon of old republican freedoms, that understanding which can easily be traced in the Polish May Constitution 1791.

The Nation in the Polish May-Constitution 1788

Old Republicanism as an Integral Part of the Juridification by Constitution

In the tradition of the pre-revolutionary estate-based ideas, the Polish constitution of May 1791 , just after its preamble , includes a constitutional contract between the estates‘ assembly representing the nation on the one side and ‘Stanisław August by the Grace of God through the will of the nation King of Poland’ (Introduction to the Polish May Constitution 1791)Footnote 147 on the other. The constituent nation in the sense of the preamble is not meant to be understood as the sovereign people of free and equal citizens, but – and this is in accordance with the old-estate understanding of the nobility as ‘the furthermost pillar of liberty and the contemporary constitution’Footnote 148 – as the nation of the nobility .Footnote 149 The affirmation of the old-Republican pacta conventa in Art. 7 perfectly fits into the picture.Footnote 150 Even in the non-state period after the Polish partitions , the ancient Republican principles served as legitimations for the historic Polish Nation. Yet the Grande Émigration 1830 after the Warsaw upheaval relies on the ‘legitimacies’Footnote 151 of the Polish Nation as Joachim Lelewel’s manuscript ‘Légitimité de la Nation Polonaise (1836)’Footnote 152 indicates. For this mastermind accompanying Adam Jerzy Czartoryski ,Footnote 153 Frédéric Chopin and Adam Mickiewicz, the languageFootnote 154 and the political element are points of national legitimacy . The latter is explained explicitly: The social state (l’état social) is the main legitimation: ‘In one word, if we want to depict in the history of Poland a true social element this is no different from the political element. The civil life only, purely political creates exclusively the principal themes of the Polish history.’Footnote 155 The political element is specified as ‘political habit of the ancient Poland’.Footnote 156 National legitimation is synonymous with Republican legitimation: For Lelewel ’s ex post-perspective after the Warsaw upheavel, Poland was a Republic and as the great ancient Republics,Footnote 157 it has elected its head on its own for his lifetime. And every candidate had the same honour without differences as to the rank or his wealth since the ‘brotherhood’ (braterstwo), and the ‘equality’ (równość) was decisive for the Polish Republic. Thus, the sovereignty of the people manifested itself in all rulers: in the judiciary that is independent and representative, in the administration which executes the will of all.Footnote 158 Lelewel’s explanations about the old Polish Republicanism refer to the slavistic linguistic speciality. In the Polish language, the word for slave did not exist, only for subject (podany). This foundation of the Polish Republicanism is an important condition for freedom from the point of view of the Grande Émigration 1830.Footnote 159

Interestingly enough, around the Great Sejm 1788–1792 there were some inaccuracies, which mark the Polish term of the nation to be in between the sense of the old aristocratic Republic and the opening towards an understanding of a general political body. The law on ‘Our free Royal Cities in the States of the Rzeczpospolita’ of April 18, 1791’Footnote 160 was adopted unanimously and received the constitutional rank as a law in article III of the May Constitution , a law that gives the free Polish Aristocracy a new, true and powerful force for the safety of its freedoms and the inalienability of the common fatherland.Footnote 161 There seem to be two ideas behind this prudent and rather confusing formulation. The first one is that the law on the free royal cities in the states of the Republic of April 18, 1791 does not want to restrict the aristocrats’ privileges in any way. The second one is that the foundation of the ‘Republic’ are both the Polish aristocracy and the citizenship. Lelewel made it very clear that the law of the free royal cities should not be seductive for the assumption of a unitarian urban area. He pointed out in his manuscript ‘Légitimité de la Nation PolonaiseFootnote 162 that Poland had never had a unified ‘national law’ since the cities functioned as small Republics, especially with their German town law.Footnote 163

The inaccuracies with the usage of the term of the nation fit into this picture. In Article II of the May Constitution, the nation is the point of reference in the sense of an old aristocratic nationFootnote 164 while in Article IVFootnote 165 even the farmers seem to be included. And the union that was renewed on October 20, 1791 was named Rzeczpospolita Obojga Narodów , the Republic of two nations . The sovereignty of the nation is claimed to be the origin of all state authority (Art. 5), even though since the second and third division of Poland a nation in the sense of a politically mobilised people is lacking.Footnote 166 Hence, contrary to the French September document, the Polish May constitution does not establish a new basis of legitimation for modern statehood after a revolutionary break with inherited power structures.Footnote 167 Though it does not systematically fix the conditions of legitimacy as ‘the basis and foundation of government’ (in the wording of the Virginia Bill of Rights 1776Footnote 168) or as “le but de toute institution politique” (in the wording of the declaration of human civil right as it is found in the September constitution 1791Footnote 169), the Polish May Constitution fixes a core part of normativity and a positive uniform constitutional text due to the notion of constitutional supremacy. It is the only constitutional document of the revolutionary era which expressly states the precedence of the constitution: that ‘all consecutive resolutions of the current sejm are to be consistent with the constitution in all respects’ (ending of the Introduction, May Const. 1791).Footnote 170 It is the argumentation of the American revolutionaries, opposing the ‘unconstitutional’ taxation of the colonies by the Westminster Parliament against the constitutionally legitimate resistance of the colonies, which suited, from the Polish point of view, the legitimation of the Polish resistance against the Russian Tsarina, the Prussian King and the Habsburg Kaiser of the Holy Roman Empire.

With the modern concept of the constituent sovereignty , the 1791-text of the Great Sejm seems to combine the old idea of an aristocratic nation. The openness of the sovereignty of nation in the Polish May Constitution to continuities with the pre-revolutionary class-based state can be seen in different aspects, which I laid down in length at the Polish Legal History Conference in Cracow.Footnote 171 In regard to national sovereignty as juridification, we can concentrate on the May Constitution’s procedural openness.

The Procedural Openness of May Constitution as Reflex onto the Juridification of National Sovereignty

The procedural openness of the May Constitution reflecting the juridification of national sovereignty finds its first expression in the partnership of legal and parliamentary ministerial responsibility. As ‘father and head of the nation’, the Monarch is not responsible. The ministers appointed by the King assume legal responsibility for the decrees issued by the king by means of countersignature. Moreover, in Art. 7, the May constitution fixes a parliamentary vote of no confidence, which resembles the American impeachment requiring a two thirds majority: ‘In the case, by contrast, that both chambers united in the Reichstag demand the resignation of a minister from the state council or another position by means of a two thirds majority of secret votes, the King shall be held to most immediately appoint another to this position’.Footnote 172 The partnership of legal and parliamentary ministerial responsibility motivates my often articulated interventionFootnote 173 against the popular contrast between constitutionalism and parliamentarism.Footnote 174

Another aspect is the elaboration of the executive in Art. 7 with the separation of the hereditary monarchFootnote 175 and the state council which was referred to as straż praw (guardian of the rights) in accordance to Montesquieu’s dépôt des lois. The constitutional terminology of ‘the King in his state council’ is proven by individual interpreters with the association of the English wording of ‘the king in council’.Footnote 176 The state council, which is subordinate to the laws and supervises the authorities, consists of the archbishop of Gnesen as primas of Poland, five ministersFootnote 177as well as two secretaries. It had no right to vote. The monarch as head of the state council was not responsible before it.

The elaboration of the two chamber legislative body, which was separated from the executiveFootnote 178 and made up of the Messengers’ Chamber and the Senators’ Chamber also shows potential for evolutionary development. While the Messengers’ Chamber was supposed to be ‘the sanctuary of the legislature as the representative body and embodiment of national sovereignty’ ,Footnote 179 the Senators’ Chamber which was governed by magnates and headed by the King had a suspensive veto against the resolutions of the Messengers’ Chamber. By contrast to the American constitution , the House of Representatives was dominating. If after the veto of the Senate, the same law was passed again by the House of Representatives, it was valid irrespective of the Senate’s veto. The King possessed a single vote in the Senate; he did not have the right to veto by means of his chair. As was the case in the French September constitution , the King had a right of legislative initiative, the same applying to the messengers. Besides the 204 representatives of the nobility, 24 citizens were part of the Messengers’ Chamber as commissioners of the royal cities. As representatives of the nation as a whole (Art. 6), the representatives from the (provincial) state parliaments were no longer dependent whereby the metamorphosis from an estate organ towards a modern representative institution can be observed. The estate-based perception of an imperative mandate turns into the conviction of the individual freedom of decision of the state citizen who is obliged to the general good. The majority principle was applied in both legislative bodies. Liberum veto and the confederate right were abolished.Footnote 180

National Sovereignty in the CádizConstitution 1812

Sovereignty of the Spanish Nation (nación española)

Analyzing national sovereignty in the Spanish Cádiz Constitution 1812, one realizes at first sight, that the constitutional process in Spain is connected with the anti-Napoleonic resistance (Guerra de Independencia).Footnote 181 The reference to the sovereignty of the nation (soberanía nacional) in Tit. 1, Art. 3Footnote 182 is directed against the usurpation claims of the French imperial family Bonaparte,Footnote 183 in an intermediate situation of revolutionary potential.Footnote 184 Only thanks to its sovereignty, the nation was able to annul the declaration of abdication in favour of Napoleon in Bayonne as well as the statute of Bayonne and to ‘fix the laws and conditions according to which their kings ascend the throne.’Footnote 185 Thus, only one day after the festive inauguration of the Cortes on the Isla of LéonFootnote 186 near Cádiz on September 24, 1810,Footnote 187 the order followed that the proper title of Charles IV and Ferdinand VII was ‘Majesty’ .Footnote 188

It had been Napoleon’s declared goal to renew the Spanish monarchy under French preponderance and dominance and to legitimate the Napoleonic usurpation of the Spanish throne. On May 23, 1808, after Bayonne , he convened an assembly of notables of the Spanish nation with only 91 representatives appearing when asked to do so. On June 20, 1808, they were presented a constitutional draft elaborated by Napoleon and Maret, which led to the constitutional octroi of July 6, 1808. In this draft, the hereditary monarchy and Catholicism as a state religion were fixed. The Cortes were intended as estate representation and divided up into a bench of the clergy, one belonging to the aristocracy and a bench of the people.Footnote 189 Napoleon ’s handwriting contained the following provisions: ‘Spain and India shall be governed by virtue of a single civil code’ (art. 96); ‘The courts are independent’ (art. 97); the judiciary is to be administered in the name of the King by the courts appointed by him (art. 98, 99); three-fold appellate stage (article 101); abolition of all landlord courts and the special judiciary (art. 98); guarantor of the freedom of press (article 45); the legislature is vested in the king and will be ‘considered and drafted’ by the state council (art. 57) and is presented to the Cortes for further deliberation and permission (art. 86). The legislature was not regulated in an independant chapter. Napoleon appointed his brother Joseph as king of the Spanish/Spain-America. This constitutional octroi of July 6, 1808 based on monarchical prerogatives of the intruder king (rey intruso) was widely rejected by the people as a sign of French foreign rule.

On May 22, 1809, the “Junta Suprema Central y GubernativaFootnote 190 as the provisional government in the name of Ferdinand VII agreed on the reinvigoration of the Cortes as the legally legitimate representation of the monarchy.Footnote 191 While fleeing from the French army, it moved to Cádiz, dissolved on January 29, 1810 and conferred government powers to a governing council, which decreed the convocation of the Cortes on June 18, 1810. Since 1809 the preparing commission (Comisión de Cortes) had begun to ask the estates and the cities about their reform expectations.Footnote 192

By virtue of the recourse to national sovereignty , the general and extraordinary convention of Cádiz (Cortes generales y extraordinarias) claimed the constituent power (el poder constituyente) for itself since all authoritarian power supposedly had fallen back to the nation represented by the Cortes after the dismissal of the legitimate Spanish King.Footnote 193 The reference to national sovereignty in Tit. 1, Art. 3Footnote 194 is no rejection of monarchy, but the exclusive claim of the constituent power: “La soberanía reside esencialmente en la Nación, y por lo mismo pertenece a esta exclusivamente el derecho de establecer sus leyes fundamentales” (‘Sovereignty is essentially vested in the nation, and therefore the nation has the exclusive right to decide on the fundamental laws).Footnote 195 In the ‘political revolution’ (revolución política), Footnote 196 pillared by clerics and lawyers , the nation served as a topos to communicate on the Spanish independence without referring to the abdicated King and the suppressed people. Whilst sovereignty before and during the constitutional debates was often described in contemporary literature as a little elites’ burlesqueFootnote 197 or as an oligarchic ‘stage spectacle’,Footnote 198 it obtained the strength of a legal construct for supreme power not derived from anything before.

Miguel Artola GallegoFootnote 199 and Brey BlancoFootnote 200 seem to borrow from the Weberian differentiation between power (Macht) and ruling according to legal competences (Herrschaft),Footnote 201 when explaining the semantics of national sovereignty within the process of constitutionalisation of Cádiz. The juridification of constituent sovereignty (soberanía constituyente) by constitution generates the constituted powers (poderes constituidos). The sovereignty in terms of a constituted power was divided between King and Cortes (as normal legislative body, art. 15)Footnote 202 because the power of the nation was institutionalised (=juridificated) by constitution. The original sovereignty attributed to the nation (art. 1 and 3) is differentiated from the constituted sovereignty, divided between Cortes and Monarch (art. 15 and 16).Footnote 203 According to the Diario de las Discusiones y Actas de las Cortes, the constituted sovereignty or rather sovereignty in actu was divided between King and nation, and both made the laws in agreement with each other.Footnote 204

The Monarch becomes the constituted power (el poder constitucionalizado): ‘Don Ferdinand the Seventh, by the grace of God, and by the Constitution of the Spanish Monarchy, King of Spain’ the preamble of the Cádiz-Constitution of March 19, 1812 is worded.Footnote 205 In their address to the King on December 24, 1811 in the context of the ‘Discorso preliminar’, the Cortes themselves speak of a new ‘liberal Constitution’ on the ‘firm basis’ of which is now based the throne.Footnote 206 The deduction of monarchical power from the national sovereignty represented by the CortesFootnote 207 is experienced as revolutionary by contemporaries.Footnote 208 However, popular sovereignty in the sense of Rousseau’s volonté générale or in the sense of the French national convent 1792–1795 did not come to the Cortes’ mind: They did not act as proxy of their voters but as sovereign representatives of the nation.Footnote 209 The members of the Cortes represented the nation.Footnote 210 ‘The representatives that compose this Congress and who represent the Spanish Nation, declare themselves legitimately constituted in general and extraordinary Cortes and that in them resides the national sovereignty.’Footnote 211

The formulation of the preamble , according to which the King was to ‘proclaim’ the constitution of the Spanish monarchy that the Cortes had ‘agreed upon’ and ‘enacted’,Footnote 212 does not leave room for any doubts about the new ratio of powers between popular or national representation on the one side and the crown on the other. The people and the monarch belong to the nation. With that, monarchical sovereignty is not excluded, as the double legitimation of the new Spanish constitutional monarchy (‘by the grace of God and by virtue of the constitution’) illustrates in its preamble . It becomes obvious that such a constitutional legitimation opens up old estate dualistic understandingFootnote 213 and for the liberal understanding of the nation as a new point of reference. This openness takes into account the scholastic influencesFootnote 214 onto liberal representatives, like Diego Muñoz Torrero , president of the University of Salamanca, and Antonio Oliveros,Footnote 215 whose understanding of the nation as cuerpo moral in the Suárezean traditionFootnote 216 incorporates the king as head of it (illudque consequenter indiget uno capite).Footnote 217 These traditional conceptsFootnote 218 in the Cádiz constitutionalisation process document the distinctiveness of national sovereignty represented by the Cortes from the Rousseauian volonté générale.

Late Scholastic Concepts of the Transfer of Sovereignty (translatio imperii) or the Nation as Moral Entity (cuerpo moral) in the Cádiz Debates

The legal definition of the Spanish nation (nación española) as reunion of all the Spaniards of both hemispheres (“reunión de todos los españoles de ambos hemisferios”)Footnote 219 by art. 1 cannot be read as to equate nation with people.Footnote 220 Art. 2 articulates not only the freedom and the independence of this nation, but also negates any claim for possession.Footnote 221 Art. 3 attributes sovereignty essentially (esencialmente) to the Nation. Footnote 222 Francisco Javier Borrull y Vilanova differentiates explicitly between the constitutional wording ‘esencialmente’ and the social contract of the citizen of GenevaFootnote 223. If the sovereignty resides ‘essentially’ in the nation, it has not to be conveyed on it by a social contract .

This is parallel to the natural law of Francisco Suárez and Fernando Vázquez de Menchaca , who attributed sovereignty to the political human nature, ‘that before a determined form of government is elected this ability resides in the community or congregation of men’.Footnote 224 In allusions to Aristotle and his Christian adaption by Thomas Aquinas ,Footnote 225 the natural origin of the nation’s sovereignty depends on the existence of the human community itself.Footnote 226 In the School of Salamanca , which ‘passed’ natural law from theologians to jurists , monarchical sovereignty is not of divine but of human origin. The justification for this secularizationFootnote 227 relies on the legal argument of the transition of sovereignty (translatio imperii); monarchical sovereignty comes from God by means of the community of the human beings, whose social nature includes their natural legislative power.Footnote 228 With reference to Domingo de Soto and his statement that ‘the sovereign power derives from God to the king s by means of the people, where it is said to reside primarily and essentially’,Footnote 229 a protest against the aforementioned Art. 3 was formulated in the Cortes.

It was the old dualism between monarch and estates that survived as a secularized model of the biblical covenant between God and his people. Irrespective of any French influences onto Cádiz-constitutionalism,Footnote 230 the prevailing discourse patterns with regard to national sovereignty rely on the mutual power of people and King.Footnote 231 The Spanish Nation as the people and the Monarch is reflected by Antonio Llaneras , who is not against the draft of national sovereignty in Art. 3, because ‘the Spanish nation […] has a head, that is Ferdinand VII, whom [the cortes] had sworn solemnly as sovereign on the first day of their installation.’Footnote 232 Similar is the statement of José Ramón Becerra y Llamas : ‘The Spanish people, who has deputed us to represent it in this general and extraordinary Cortes, and our beloved sovereign Ferdinand VII, who is its head, form a moral body, which I call the nation or the Spanish monarchy’.Footnote 233 The cuerpo moral of Llamas is distinct from the Rousseauian corps moral that receives its moi commun through the social contract .Footnote 234 Llamas’ cuerpo moral is derived from the late scholastical notion of the cuerpum mysticum (cuerpo místico), Footnote 235 which can be traced back to the works of Francisco Suárez .Footnote 236 The Monarch is the head of the cuerpo moral, which consists of himself and the people,Footnote 237 and in Art. 3 it is the King as head of the nation who participates in the national sovereignty together with the Cortes.Footnote 238 Any idea of one homogeneous will embodied in the nation is to fail because it is not the egalitarian abstract idea of the human society born out of natural state, politically unified as nation, but the real conditions of the former global powerFootnote 239 that are predominant in the cortes‘ debates . The metaphorical equivalence between the human organism and the political community in late scholasticismFootnote 240 leads to the understanding of the nation as an organic unity.Footnote 241 People (pueblo) describe the population in different territories or kingdoms of both hemispheres rather than an homogenous political entity. According to the scholastic doctrine of the seventeenth century, the Spanish nation consisted of the Castilian and Indian communities (comunidades), people (pueblos), republics (repúblicas) and the Monarch.Footnote 242 This matches the particular preconditions of nineteenth century hispanic-american constitutionalism.Footnote 243 It could not be ignored that the Spanish nation was a conglomerate of different people (pueblos que forman una sola nación) and that the representation of national sovereignty in the Cortes does not hinder the particular representation of the provinces. Footnote 244

The Natural Origin of National Sovereignty as a Limitation for the Monarchical Sovereignty

The natural origin of national sovereignty according to the late scholastics in the sixteenth and seventeenth centuryFootnote 245 is used by the representatives Diego Muñoz Torrero and Antonio OliverosFootnote 246 to explain the supralegal limitations of the monarchical position,Footnote 247 and to promote their concept of a moderate monarchy.Footnote 248 As monarchical sovereignty is derived from God by means of the community of human beings, whose natural legislative power is represented by the pouvoir constituan t (poder constituyente) of the general and extraordinary convention of Cádiz (Cortes generales y extraordinarias), natural law is above divine law. The King’s recognition of the sovereignty of the Cortes amounts to a supralegal limitation of royal government. This line of arguments guides Muñoz Torrero’s counterplea against the conservative bishop of Calahorra.Footnote 249 Muñoz Torrero’s rhetorical question, ‘if sovereignty belongs exclusively to the king of Spain, what right do have the Cortes to put limits and restrictions on the exercise of royal authority?’ is replied by himself, that it is the King’s reward for the nation’s sovereignty (“reconocer la soberanía de la Nacion”)Footnote 250 that limits monarchical sovereignty by means of the natural law.Footnote 251 The supralegal natural limitation of monarchical sovereignty Footnote 252 is what Muñoz Torrero and Oliveros conclude from the debates of the preamble draft ‘In the name of Almighty God, Father, Son, and Holy Ghost, the author and supreme legislator of the universe.Footnote 253

Both the royalist conservatives ( realistas ) and the liberals refer to the leges fundamentales (leyes fundamentales ). The historical continuity, highlighted by the Discurso Prelimiar of Agustín de Argüelles ,Footnote 254 is cloud point of all the different views on the question of sovereignty in Cádiz.Footnote 255 The pro-monarchic realistas explain with the help of the fundamental laws that sovereignty of the Cortes is limitedFootnote 256 and even that they cannot have the pouvoir constituant in the absence of the king. For the royalist conservatives ( realistas ), the leyes fundamentales imply the pre-constitutional organizational framework of the Spanish monarchy,Footnote 257 confirming the monarch as head of the executive (Art. 16) and as part of the legislative (Art. 15). In consideration of the nation’s long historical continuity,Footnote 258 it is therefore only a derived constituent power (poder constituyente constituido), which Juan de Lera y Cano attributes to the Cortes of Cádiz; According to him, both the general and extraordinary convention of Cádiz (Cortes generales y extraordinarias) were reinvigorated ‘by entering to the execution of it [the sovereignty] to conserve it for its legitimate king and descendants’.Footnote 259 From the royalist point of view ‘Conserving the sovereignty for the legitimate King and descendants’ means, that the Cortes do not have the nation’s poder constituyente during the Monarch’s absence.

For liberal representatives, the leyes fundamentales express the transmission of sovereignty from the nation onto the King , and represent the conviction, borrowed from the School of Salamanca, that monarchical sovereignty is not of divine but of natural origin. As supra-legal limitations of the nation’s constituent sovereignty ,Footnote 260 the leyes fundamentales are used by liberals to argue for moderate, limited monarchy, as they are carried forward by positive-legal limitations.Footnote 261 In this context, the leyes fundamentales are the argumentative nucleus of the limitations on constituted sovereignty.Footnote 262 The leyes fundamentales serve as an argumentative link between constituent sovereignty and constituted sovereignty, due to the historical continuity established prominently in the Discurso Prelimiar of Agustín de Argüelles . The historical continuity is therefore not only a semantic keynote in the Cádiz debates , but it stands for the particuliarity of the Spanish discourse , which understands national sovereignty not as an abstract notion as in the French discourse, but as a historic one.Footnote 263

Primacy of the Cortes in the Constitution of Cádiz

The legislative power of the Cortes is the centrepiece of the constitution of Cádiz,Footnote 264 as the 140 articles in its third title shows. Thus, the balance of powers is shifted far beyond the constitutional participation rights of its French role model of 1791Footnote 265 in favour of the Cortes, Footnote 266 and not only out of admiration of the constituent for English parliamentary sovereignty,Footnote 267 but rather above all because of the situational weakness of the transitional government (regencia) during the War of Independence .Footnote 268 The primacy of the parliament has various manifestations in the constitution of Cádiz. The Cortes are, together with the monarch, entitled to legislation (Art. 15, 142). Every representative and every member of the government has the right of legislative initiative.Footnote 269 The monarch only has a suspensive right to veto , limited to two years (Art. 147). If he denies his approval to a statute, the bill can be put forward a second time in the following session (Art. 147). A second refusal has suspensive effect, until the Cortes can override the monarchical veto with a two-thirds majority in the third year (Art. 148, 149).Footnote 270 The exclusion of the executive from participation in parliamentary sessions also strengthens the superiority of the Cortes. Although the sessions were public, neither the King nor the minister were allowed to attend them (Art. 124 et seq.).Footnote 271 Furthermore, Art. 131, N° 26 stipulates a provisional presumption of the Cortes’ competence in constitutional issues.Footnote 272 The primacy of the Cortes can also be seen in its relationship with the executive. The Monarch exercises the executive power (Art. 16, 170). But his competencies are enumeratively regulated in Article 171 and they are bound to detailed participation rights of the Cortes (Art. 172). Thus, the catalogue of Art. 172 encloses the prohibition to suspend the Cortes. The Monarch appoints the state ministers (Art. 171 N° 16). These were politically responsible to the Cortes (Art. 226). The recognition authority for the Prince of Asturias as successor to the throne (Art. 210), their right of proposal of appointment of the members of the privy-council (Consejo de Estado) according to Art. 235,Footnote 273 and the coronation oath before the plenum (Art. 173) document the derived monarchical power.Footnote 274

The Legitimisation of the Cádiz Constitution by the Old Fundamental Laws of the Kingdom (las antiguas leyes fundamentales de la Monarquía)

In the Cortes’ debates , one realizes the argumentative link between the constitutional drafts and the tradition and history of the old Spanish law in order to avoid the general suspicion that they were headed to revolutionary goals. This defensive strategy marked the formulation in the preamble of the Cortes-Constitution according to which the general assembly of the Cortes ‘after the most careful investigation and the most thorough contemplation’ were convinced that the ‘already established fundamental laws of the kingdom (las antiguas leyes fundamentales de la Monarquía) as well as the fixed and permanent securing of the execution of the adequate orders and the measure provisions advanced the great goal of furthering the well-being and prosperity of the whole nation …’.Footnote 275 Even if this declaration in the preamble marks the transition from the traditional constitutional semantics of the Ancien Régime towards a constitutional understanding of a sovereign nation,Footnote 276 in their ‘addresses to the king’Footnote 277 of August 11, 1811, November 6, 1811 and November 24, 1811 contained in the three ‘‘discorso preliminar’’, the Cortes put their constitutional works in the historical context that was not vulnerable ‘to the argument of revolutionary upheaval and dangerous novelty originating from the monarch ’.Footnote 278 ‘In its draft, the commission establishes nothing that is not yet to be found in the most authentic and celebratory manner in the different Spanish laws …’.Footnote 279 In the address of August 11, 1811, the constitutional commission rejects ‘the draft of novelty’Footnote 280 and the suspicion of having neither ‘borrowed something from foreign nations, nor of having been penetrated by reformative enthusiasm’ since they did nothing but to adopt what ‘had become unfashionable since several centuries’ and ‘what had been known and usual in Spain’ in their ‘present draft’.Footnote 281

The sovereignty of the nation is derived from old traditions: ‘In order to prove this thesis, the commission must do nothing but refer to the decrees of the Fouero Zuzgo [the Gothic code ] about the laws of the nation, the king and the citizen, about the mutual obligations to uphold the laws, about the manner of delivering the same and to execute them. In the fundamental laws of this code, the sovereignty of the people is pronounced in the most authentic and celebratory manner that is conceivable.’Footnote 282 Even the old ‘fundamental laws of Aragon, Navarra and Castile’ as well as the older codes from “Fuero Zuzgo” to “Nueva Recopilación” are being used.Footnote 283 This should hush every critic: ‘Who upon seeing such celebratory, such clear, such decisive decrees was still able to refuse to accept as an undeniable principle that the sovereignty originated from the nation and is inherent to it?’Footnote 284 In this sense, also Rotteck called the constitutional draft of the Cortes a creation ‘born in the spirit of the new ages of reestablishment of the rights of the nation asserted by law against the monarch that it had been deprived of’.Footnote 285 The context of the old traditions is obvious, even more so since the catholic national religion confirms the Cortes’ traditionalism.Footnote 286 With this lack of a separation of law and religion, the Cortes contradicted all cosmopolitan and religious principles of the Enlightenment,Footnote 287 even if the constitutional commission in its address of December 24, 1811 proclaimed political freedom of speech and the press (Art. 371)Footnote 288 as ‘the true medium of the Enlightenment’.Footnote 289

The normativity of the modern constitution, as a text of law, which fixes the political order as a legal order, flashes up in the reflection of the enlightened claim for codification.Footnote 290 For instance, the constitutional draft according to the constitutional commission is ‘in its character national and ancient’, in its ‘order and method’, however, ‘new’Footnote 291: ‘[New is the ...] method of how the matter is divided up, …, by depicting and classifying it like this, that they form a system of fundamental and constitutional laws wherein one finds the fundamental laws of Aragon, Navarra and Castile scattered amongst everything what unified the decrees that concern the liberty and independence of the nation, the rights and duties of the citizens, the dignity and authority of the king and the tribunals with one another.’Footnote 292 The generalising order of the legal matter and the fixation of the political order as a legal order serves the creation of the nation state by means of territorial unification and integration of all social groups. The unification in the first constitutional title (Concerning the Spanish nation and the Spanish) and of the second constitutional title (Concerning the territory of Spain, concerning its religion and government and concerning the Spanish people)Footnote 293 serves the creation of common economic conditions, as well as to ‘further the national prosperity by means of everything possible without the reglementations and rules of the government having to interfere …’.Footnote 294

‘Revolutionary’ state theories are consciously avoided, the name of Montesquieu not being named once in the ‘addresses to the king’ of the year of 1811.Footnote 295 The Cortes justified the ‘separation of the sovereign authority of a nation’ into three branches with the human nature in which possibilities for conflict are immanent: ‘The separation of the same is indispensable; but the dividing lines that one has to observe in particular between the legislative and executive branch in order to create a correct and stable balance are of such a degree of uncertainty that their delimitation has been the bone of contention amongst the important authors of governmental science and that the systems and dissertations concerning this matter have indefinitely multiplied.’Footnote 296 For instance, the Cortes-Commission is able to contemplate in its address to the king of November 6, 1811 whether ‘it may be beneficial under very urgent circumstances to unite the legislative and executive power for a certain amount of time…’.Footnote 297 The dangers going hand in hand with the concentration of the three branches of power or the three Aristotelian state functionsFootnote 298 for the ‘political and civil liberty’ as well as ‘personal security’ were nevertheless very well known to the Cortes. These dangers were seen as possible potential for conflict in the system of the constitution that was only perceived as avoidable by means of the separation of powers. In this sense, the separation of justice and administration allows the creation of ‘the necessary balance between the government’s authority … and inalienable liberties’.Footnote 299

Struggle of the realistas for the Monarchical Principle

Therefore reactionary longings for the restoration of the absolutistic Bourbon monarchy had room. After the flight of the French King Joseph Napoleon and the return of the Spanish King Ferdinand VII in March 1814, the realistas – as the royalists were called – took the view in their renowned Persian manifest of April 12, 1814 that the Cortes Constitution of Cádiz which while not being directed against the monarchy was created without the monarchFootnote 300 and therefore could not possibly bind the king.Footnote 301 The latter called for absolute power as he had held before the displacement by Napoleon. Ferdinand VII consequently annulled the Cortes Constitution of 1812 and in the meantime proclaimed laws by the decree of May 4, 1814.Footnote 302

By doing so, the situation before the octroi of the French constitution of 1808 was supposed to be restored. Rotteck called the following phase of restoration a ‘reactionary tyranny’ by means of which the inquisition, ‘the heaviest intellectual pressure’ and ‘all calamitous flaws of the old administration’ had come back.Footnote 303 A cruel domestic struggle (1814–1820) was to follow. Not only liberal forces and farmers took part in the upheaval against the restoration of the Bourbon monarchy, but the reactionary agitation also seized the badly equipped and irregularly paid army. The officer corps had since long been a domain of the middle class strongly influenced by liberal ideas.Footnote 304 Attempts to instrumentalize the restored Bourbon Kingdom concerning the officer corps failed. Rather, since 1814, military revolts took place (Pronunciamientos) that aimed at the return to the Constitution of Cádiz. After a putsch of the military and a proclamation of the restoration of the Cortes Constitution of 1812, Ferdinand VII found himself having to finally accept the constitution of 1812 on March 7, 1820. The laws passed before 1814 were now reinvigorated. In the towns, the squares received again their original name “Plaza de la Constitución”.Footnote 305 The often used battle cry ‘Constitution or Death’Footnote 306 marks well the political radicalisation of the country after 1814 and makes clear that it was not a struggle within an agreed upon constitutional frame, but that it focused on the constitution itself, the power to make the final decision in the non-constitutional state and thus on sovereignty.Footnote 307

Contemporary Ambigous Evaluation of the Cádiz Constitution

The ambiguous argumentation of the Cortes, their recourse to old liberties and the rejection of enlightened sanctuary of religious liberty is mirrored in the disputed assessment of the Cortes-constitution in the historiographical state of the art. It is partially described as the Magna Carta of Spanish liberalism ,Footnote 308 and partially only named a revolution on paper.Footnote 309 The same is true for the contemporaries’ evaluation. Metternich reviled the Cortes-Constitution of 1820 as ‘the work of arbitrariness or senseless blindness’.Footnote 310 The ‘Holy Alliance’Footnote 311 and the representatives of the strict monarchical principle – as for instance Albrecht von Haller – demanded: ‘Avoid the word constitution; it is poison in monarchies since it requires a democratic basis, organizes the inner warfare and creates two elements of life and death fighting each other. Who called for this constitution? It was the Jacobins themselves …. The people do not demand from you a constitution but protection and justice.’ Footnote 312 The supportive voices were certainly not Jacobins. Its influence on the Constitution of the United Provinces of South America (December 3, 1817)Footnote 313 as well as its model character for Portugal, Piedmont and Naples-Sicily,Footnote 314 however, support Dominique Georges Frédéric de Pradt’s assessment, which was given under the title ‘De la révolution actuelle de l’ Espagne et de ses suites’ (1820): ‘The absolutistic Europe will not be able to escape the influence that these revolutions with their constitution of 1812 will exercise on it in the future to come.’Footnote 315 In Carl von Rotteck’s words, the positive evaluation goes as follows: ‘What friend of liberty and a popular constitution will not consider such a provision as desirable?’Footnote 316 In this sense, Pölitz declares as well – even if doing so a little bit more tacitly: ‘Thus, when considering it as a whole, one cannot refuse approval to this constitution.’Footnote 317

The Constituent Sovereignty in the Norwegian Grunnloven

The Norwegian Fundamental Law (Grunnloven),Footnote 318 adopted on May 17, 1814, is particular not only for its ‘survival’ of the restoration after the Vienna Congress ,Footnote 319 but for the unique combination of a strong parliament and a strong crown. Compared to its previously outlined European contemporaries, like the French September Constitution of 1791 Footnote 320 and the Spanish Cortes Constitution of 1812, the Norwegian Grunnloven does not only rely on the strength of Parliament , but also allows for a strong monarchical position,Footnote 321 – much stronger than in the Swedish form of government of 1809.Footnote 322 The ‘Eidsvoll -alliance’ of a strong parliament and a strong crown allowed for an evolutionary transition from the constitutional to the parliamentary system, which was accompanied by a legal dispute over the King’s veto against constitutional alterations. As the evolutionary understanding of constitution in the context of ReConFort comprises the respective constitutional interpretation,Footnote 323 the Norwegian Constitutional Formation is to be included into my paper, even though Norway is not a ReConFort-targeted country. The statement of the Christiana Faculty of Law does not only refer to the constitutional nature of the King’s veto, but also covers constituent sovereignty and the precedence of constitution by explaining why constitutional amendments cannot be left to an ordinary parliamentary assembly. Therefore, it is a document that is crucial for the understanding of the Norwegian implementation of the modern constitutional model.

Eidsvoll Debates and the Norwegian Grunnloven of May 17, 1814

Christian Frederik Footnote 324 summoned the leading men on February 16, 1814 in order to have himself declared the hereditary king by virtue of his hereditary right and vested in him as the Danish Prince. He saw himself confronted with the argument that – with the abdication of the Danish King Friedrich IV as the Norwegian King after the Peace of Kiel of January 14, 1814 – the state power was not handed down to the Prince, but to the Norwegian people. Despite the fact that the men surrounding Georg Sverdrup Footnote 325 and calling for a constitutional monarchy were only a small elite, Christian Frederik still had to satisfy their claims in order to make sure that he was able to continue his policy of independence of a Norwegian Kingdom. Due to the fact that the Norwegian actions appeared to be of a rebellious and revolutionary nature from the Swedish perspective, Christian Frederik was exposed to a dilemma: on the one hand, he wished to fight for the Norwegian independence and on the other hand, he wanted to assure the continuance of the Union with Denmark. The aversion against the Ancien Régime was not generally directed against crowned heads, as the crown was perceived as bulwark against revolutionary terreur and in the special Norwegian Case was received as a guarantee of independence .Footnote 326

In the proclamation of February 19, 1814, Prince Christian Frederik – in his position as the ‘regent’ – proclaimed the convocation of a Constitutional Imperial Assembly (Riksforsamlingenat)Footnote 327 that was to elaborate an Imperial Constitution and fix the electoral procedure comprising an obligatorily preceding oath for the civil servants, the voters and the candidates ‘to defend Norway’s independence and to risk life and blood for the beloved fatherland’.Footnote 328 The actual constitutional work was vested in the hands of the constitutional committee, which had the plenary assembly’s agree to twelve fundamental principles (grunnsetninger) before deliberating on specific constitutional provisions. Among them were No. 2 ‘The people are to exercise the legislative power through representatives. (Folket skal utøve den lovgivende makt gjennom sine representanter)’ and No. 3 ‘Only the people are to have the right to impose taxes through their representatives. (Folket skal alene ha rett til å beskatte seg gjennom sine representanter).’Footnote 329 The constitutional elaborations were conducted at an extreme speed of six weeks (convocation on April 10, 1814, finalisation of the elaborations on May 16, 1814) relying mostly on the draft of the Norwegian jurist Christian Magnus Falsen (1782–1830)Footnote 330 and of the Danish Crown Secretary Johan Gunder Adler (1784 –1852), both familiar with the French and the American constitutional discourse.

Moss Process into the Swedish Union: The Extraordinary Storting as Constituent Assembly and the Fundamental Law of the Norwegian Empire of November 4, 1814

The Swedish insisting on the compliance with the Peace of Kiel led to a new war ending with the Norwegian defeat in the Treaty of Moss of August 14, 1814. After the abdication of King Christian Frederik who – according to the wording of the ceasefire agreement ‘gave his power into the hands of the nation’, the moss-wording was argued upon with the commissioners of the Swedish Crown and guaranteed: “Sa Majesté Le Roi de Suède promet d‘ accepter la constitution religée par des deputés de la diète d’Eidsvoll . Sa Majesté ne proposera d’autre (sic)n changements, que ceux necessaires à l’union des deux royaumes, et s’engage de n’en faire d’autres que de concert avec la diète”.Footnote 331

The ‘Extraordinary Storting’ steadfastly refused to deliver the election of Carl XIIIFootnote 332 of Sweden to become King of Norway (where he was Carl II) before the altered Fundamental Law had been adopted. Following the constitutional promise emanating from the Treaty of Moss , the ‘Fundamental Law of the Norwegian Empire’ (Kongeriget Norges Grundlov) of November 4, 1814 was negotiated between the commissions of the Swedish government and the newly elected Extraordinary Storting as a de facto second constitutional assembly.Footnote 333 On the same day, 48 of the 79 representatives “elected” Carl to the throne, 23 ‘elected and acknowledged’ him and 8 ‘acknowledged’ him. These formulations are based on the emphasis of a (fictitious) free Norwegian decision that is in accordance with the previously enacted constitution. The special vote of Brandt on the Faculty opinion of August 30, 1880 confirms the Crown as the pouvoir constitué .Footnote 334 Thereby, the personal union under a King with two independent statesFootnote 335 with a respectively own governmentFootnote 336 for internal affairs was fixed.Footnote 337 In 1815, a treaty was signed between the Storting and the Swedish estates in the form of an ‘Imperial Act determining the constitutional relations resulting from the Union between Norway and Sweden’.Footnote 338 This international treaty between the Norwegian Parliament (Stortinget) and the Swedish Estates (Stænder) concerned the royal power and the provisions in the case of the vacant throne. It had constitutional rank in Norway and amounted to a simple law in Sweden.Footnote 339

Relationship Between Monarch and Parliament in the Norwegian Grunnloven

According to § 3 Grunnloven , the executive power was solely vested in the King who appointed and dismissed his ministry, which was referred to as ‘State Council’ at his liking.Footnote 340 The responsibility for the government action was located therein. The ministerial duty of countersignature for ‘all orders issued by the King himself’ (§ 31) corresponded to the ‘holiness’ of the person of the ruler in the understanding of the time (§ 5); at the same time, the State Councils were obliged to dissuade in a written form if they considered the royal decisions to be unconstitutional or unlawful or harmful for the wellbeing of the state. They were forbidden from resigning out of protest. It is only in the case of them not dissuading that they could be indicted before the Imperial Court (§ 30). The King had the supreme command over the armed forces, declared war and made peace, appointed and dismissed civil servants within the legal provisions (which protected civil servants from arbitrary dismissals) ‘after having heard his State Council’ (§ 21). According to § 4 of the Fundamental Law, his person was holy and hence could not be held accountable or sued. The responsibility was vested in his council, the government. Decisions of the King required the countersignature of the respective minister. The latter was under the obligation to oppose illegal decisions in a written form and – if that did not help – only had the possibility of resigning from office in order to deny responsibility for the decision. In the case of unconstitutional decrees, the ministers were obliged to lodge counter presentations or to resign. Otherwise, they could be impeached before the Imperial Court (impeachment). The Norwegian government had to affirm the legislative drafts of the Storting. It was an organ of the royal government.

The strong Kingdom was opposed by a strong Parliament . It was incompatible to be a member of the latter while holding a government position. The Storting consisted of two departments, the Lagting and the Odelsting (§ 49)Footnote 341 and convened every three years. A true two-chamber system did not find a majority, since it was not the goal to create a specific representation of the nobility . According to § 76, the Odelsting that had the right of the legislative initiative had to present bills in the Lagting. In the case of the refusal by the Lagting, the bill had to be dealt with once more in the Odelsting. In the case of three refusals, the Odelsting could either drop the draft or present it to the plenum of the Storting, which required a two thirds majority. The division of the Storting in two, procedurally defined departments was a structure taken from the Batavian Republic of 1798, the institution of the Imperial Court from the Constitution of the USA, namely of Massachusetts and from the tradition of the British constitutional law, the French constitution of 1795, the Spanish Constitution of Cádiz (1812) as well as the Polish Constitution of 1791 and even the Danish-absolutistic Lex Regia of 1665. The research depicts a certain similarity with the Constitution of Batavia of 1789, which also possessed a two-part parliament.Footnote 342

The ‘Storting’ by means of which ‘the people’ exercised the legislative power (§ 49), the right of budget as well as the decision on taxes, custom duties and levies (§ 75); it was the legislating and controlling power. According to an unusually extended right to vote, the Norwegians elected the Storting every three years, which after its constituting session elected one fourth of its 75 to 100 members to the ‘Lagting’; the rest was referred to as ‘Odelsting’.Footnote 343 The latter, first of all voted on statutes that were then submitted to the Lagting. If the Lagting had rejected a draft twice, the whole of the Storting plenum had to vote in favour of it with a two-thirds majority (§ 76). The members of the royal government did not have access to the meetings of the Storting.

The legislative initiative was seizable both by the King or the State Council mandated by him as well as every member of the Odelsting (but not the Parliament as a whole, one of its departments or one of its commissions), even by every Norwegian citizen by making use of an Odelsting-man (“private” legislative initiatives). Furthermore, the Storting had the right to summon every citizen, even State Councils and to look into the bills on state revenues and expenditure, state protocols and contracts (§ 75). The King had the right to make use of his veto twice against statutes passed by Parliament. If the resolution had been confirmed thrice, he had to sanction it (§§ 78, 79).

A democratic constitution was never on the agenda of the Eidsvoll Assembly and the extraordinary November-Storting. They wanted a constitutional monarchy with the separation of powers between King, Parliament und justice. Democratic elements can be traced in the active and passive right to vote.Footnote 344 The decision for an indirect electionFootnote 345 and for the non-exclusion of civil servantsFootnote 346 was motivated by the skepticism against unknowledged and unacquainted farmers as deputies. Only civil servants and members of the state council, who were in duty of the state council or the court, were not eligible due to the separation of powers.

Monarchical Right to Veto on Constitutional Amendments and the Smooth Transition to the Parliamentary System

Under the special circumstance that the Storting only met every three years, the separation between the legislature and the executive power could not consequently be assured. Since certain problems could not wait long for a solution, the King received the power to adopt preliminary regulations that were only to endure until the next session of the Storting, but which de facto developed to a legislation of the King (§ 17). Furthermore, the legislation was to be restricted in order to assure the balance between the powers. Therefore, a suspensive veto of the King was introduced. The King could refuse the adoption of a bill in two consecutive legislative sessions, but not after the third. Thus, the Storting could only prevail over the King after the expiration of six years.

In 1821, King Carl Johan tried to enforce an absolute veto on legislative procedures of the Storting. Furthermore, he wanted to establish a new nobility in Norway after the Storting had abolished the former nobility in 1821. He wanted to determine the President of the Storting and he wished to be able to dismiss civil servants at his liking. Moreover, he desired to be able to enact provisions by means of decrees between the parliamentary sessionsFootnote 347 of the Storting and to weaken the Imperial Court. As court for impeachment, the Imperial Court was an effective means of the Storting to require the King to adhere to the constitution through the medium of ministerial responsibility by requiring ministers to refuse their participation concerning unconstitutional matters. The Storting rejected all demands of the King. The same happened in 1824. After that, Carl Johan put his plans concerning the absolute right of veto on ice. He repeated his demands until his death and the Storting rejected them every time.

§ 110 of the Constitution of November provided that the amendment decision had to be published and could only come into effect, if it has been passed in two successive sessions of the Storting between which an election had taken place. Nothing was said about the right to veto constitutional amendments . This question concerned the foundation of the state theory. The relationship between King and Storting was interpreted as a contract about the exercise of state authority, which could not be modified one-sidedly.Footnote 348 Despite the fact that the statutory term appears not to have been fully clear in the constitutional deliberations of early 1814, the ranking of the Fundamental Law as lex superior which bound both the King and the people’s representation was explicitly provided for in the constitution. It stated that potential future alterations may only take the form of modifications not altering the ‘spirit’ of the law. According to the November Fundamental Law (§ 112), resolutions on constitutional changes had to be consented twice by a two-thirds majority of the Storting. A new election had to take place in the meantime. For a long time, it was unclearFootnote 349 if a royal veto in the case of alterations to the Fundamental Law corresponded with the ‘spirit’ of the constitution.

The discussion about a royal veto on constitutional modifications arose from the controversial participation of the state councillors (ministers) on the sessions of the Storting. On March 17, 1880, the Storting accepted the proposal of the members of the Storting from the year 1877 concerning the constitutional regulation ‘about the participation of the state councillors (ministers) on the sessions of the Storting’ with 33 to 20 votes. The same proposal had already been accepted by the parliament four times, but was never sanctioned by the king, “because the resolution did not comply with the spirit of the constitution [§ 112]“. Since the sanction had been repeatedly refused, this was not about the original topic of the participation of the state councillors anymore, but about the royal right to sanction. On June 9, 1880, the Storting decided that no royal veto on constitutional modifications was to exist. That is the reason why on August 30, 1880 a royal resolution was made “to ask for a remark of the highest academic authority in the country on the field of jurisprudence, namely the faculty of law”.Footnote 350

All in all, the faculty commission consisting of Fredrik Peter Brandt Footnote 351/Torkel Halvorsen Aschehong Footnote 352/Ludvig Maribo Benjamin Aubert Footnote 353/Marcus Pløen Ingstad Footnote 354/Bernhard Getz Footnote 355/Ebbe Carsten Hornemann Hertzberg Footnote 356 agreed on the result ‘that according to the Constitution, the King has the right of an absolute veto concerning modifications of the constitution’,Footnote 357 and more detailed in the summary at the end of the report: ‘that this constitutional rule of law has its complete entitlement in the principle of the Constitution, that the sovereignty of the state powers shall be equitably shared, as well as the nature of the things does not allow one state power to expand its own constitutional power (Botmäßigkeit) or limit the other one; that this rule has been the basis while elaborating our current constitution; – and that this constitutional practice has gained a recognition which avoids every doubt’.Footnote 358

Frederik Peter Brand derives the precedence of constitution from § 112 of the Norwegian Constitution: ‘That the constitution cannot be subject to the common rule of the state powers. […] Because neither the Storting, nor the King or both together hold the full sovereignty, they hold it just to the extent that the constitution provides them with it alone or together’.Footnote 359 His other line of argumentation in the dissenting vote is the qualitative difference between constitutional modifications and amendments in simple laws.Footnote 360

The differentiation between constituent sovereignty and representation of the people during the legislative procedure also dominates the argumentation of the majority vote, which outlines the basically absolute character of the royal veto and the exceptional suspensive nature in relation to §§ 76–79: ‘The principle of the sovereignty of the people has been adhered to by giving “the people” the power to modify the constitution. In this case, the sovereignty is performed in the name of the people either by an original meeting of the voters in association with an elected revision council (like in the Dutch constitution of 1758, as in the draft of Adler-Falke), or in a special, therefore elected constitutional assembly with previous decisions of the national representation, hence a revision council and a specifically therefore elected constitutional assembly. […]Footnote 361 Nothing would have been more unfamiliar for the constitutional law at that time than giving the right to the general national representation to modify, even by just one single resolution, the constitution finitely and to widen its power towards the people or another state power; such a right would contradict the theories, which were based on the principle of the distribution of power which has paid homage at the time and mistrusted the tendency of the single state powers to widen their competences’.Footnote 362

What is important for the faculty report is the justification of the royal right of sanction concerning constitutional modifications with the principle of the constituent sovereignty : ‘Our constitution is one of those which exists because of the principle of sovereignty of the people . It has been given by the people on behalf of representatives at a time when the people have completely obtained the state power and had the right to define the constitution”.Footnote 363 The principle of sovereignty of the people has only been expressed in the constitution by the existence of the constitution, it has not reserved the right for the people to exercise their sovereignty at constitutional modifications in the future, as it has been regulated in other constitutions from that time. Even though the constitution has limited the authority of the common state power concerning the constitution – where the principles count – the power to make modifications has not been given to the people. The relationship of the constitution to the principle of sovereignty had as result that for any exercise of the whole state power – like modifications of the constitution […] – an interaction of both powers which only hold the sovereignty together is necessary. This power to modify the constitution has been in some older constitutions, as already mentioned, originally reserved to the sovereignty of the people, namely by a representation which differs from the common representation. Our constitution does not do this. It is fully corresponding to the ideas of the time when the full sovereignty has been transferred to the common state powers, which have to comply with the modifications.’.Footnote 364

In the Court of Impeachment decision of 1884,Footnote 365 it was held – against the analyzed Faculty’s report – that the King’s right to suspensively veto ordinary legislation (thereby postponing them §§ 78, 79) did not include the right to veto constitutional amendments . The background of the impeachment procedure was the constitutional amendment proposal calling for a constitutional obligation for government ministers to appear before the Storting. The King’s veto against the precursors of parliamentarism was rejected by the Court of Impeachment in 1884, cancelling any executive veto against constitutional amendments . This led to the appointment of a new government, headed by the majority party’s leader, Johan Sverdrup, as prime minister. According to Inger-Johanna Sand and her substantive contribution ‘The Norwegian Constitution and Its Multiple Codes’, the monarch gradually embraced the majority parties’ impact on the appointment of the prime minister and the government, thus reflecting the Stortinghet’s political formation. The decision was still, for some years, the King’s, though his surroundings and the King himself got ready to accept “closer operational relations between the executive and the legislative branches, the government and Stortinghet, respectively.”Footnote 366 However, besides the formal constitutional changes, an informal change of the political system was also taking place by means of which the Norwegian Constitution of May 17, 1814 was de facto altered. These informal alterations enabled a smooth transition from the separation of powers of the nineteenth century to today’s parliamentary system in which the King no longer plays a political role.Footnote 367

The parliamentary system was introduced in Norway in 1884 without an alteration of the constitution as a consequence of a highly disputed verdict in a trial on the removal from office. Article 12 of the Constitution provides that the King is to appoint a government to his liking. However, since the 1880s, the King has never appointed a government that has not been supported by the parliamentary majority.

The Lack of the Notion Sovereignty in the French Charte Constitutionnelle 1814

In contrast to the particular model of the Norwegian Grunnloven, the French Charte Constitutionelle (1814) illustrated the successful continental model for the link of constitutional binding between monarchical sovereignty and divine reign in early European constitutionalism. The monarch by the Grace of GodFootnote 368 Louis XVIII Footnote 369 appears as constituent sovereign.Footnote 370 The king one-sidedly imposed the Charte Constitutionnelle, and its label as a charter (charte) tried to create the impression that it was a royal privilege. The Charte avoids the term sovereignty; the reference to authority (l’autorité tout entière) Footnote 371 in the preamble permits the subsumption of prerevolutionary positions of power of the doctrine of divine right.Footnote 372 Due to his absolute power,Footnote 373 the monarch is the sole bearer of executive power (Art. 13), of the exclusive right of legislative initiative (Art. 45, 46),Footnote 374 and of jurisdiction (Art. 57).Footnote 375 Nevertheless, the restoration of the French monarchy in 1814 was, despite the objectives of the Charte to ‘preserve the rights and amenities of our crown in its entire purity’,Footnote 376 not able to whisk off the outcomes of the revolution. Above all, the renewed monarchy held on to the Napoleonic administrative system with the appointment of all office bearers by the centre. Furthermore, the Charte seeks the support of the previous political elite. The new (Napoleonic) nobility is assured of the renunciation of the sale of the national property, of the guarantee of national debt and retention of its titles (Art. 9, 70, 71). Legislation and sovereignty in budgetary matters rested with a bicameral legislative after English models with a chamber of pairs and a chamber of deputies. The charte constitutionnelle 1814 was imitated numerously until 1830, including its intrinsic systematic incompatibilities (between the monarchical principle and parliament’s legislative and budgetary rights).Footnote 377

The Undecisiveness Between Popular and Monarchical Sovereignty in the Constitutional Movement After the French July Revolution 1830

The Constitutional Movement After the French July Revolution 1830

The revision plans of the chambers of representatives and Pairs for the Charte of 1814 were out-dated by the revolutionary protest against the July ordonnances of Charles X (1757–1836). Among the substantial changes under the French July revolution 1830 were the right of legislative initiative of both chambers (Art. 15), the reorganisation of the chamber of Pairs as assembly of notables (Art. 23), the primacy of law for regulations (Art. 13) and the deletion of the ordinances ‘for national security’ (Art. 14 in the end of the 1814 Charte).Footnote 378 The strong monarchical executive of 1814 persisted in 1830 (Art. 12). The ministers were appointed and dismissed by the monarch and took over legal responsibility for the lawfulness of monarchical acts of government by contrasignature (Art. 12). This legal responsibility was sanctioned by ministerial impeachment. A political responsibility of the ministers was not envisaged.

The Charte Constitutionelle 1830 was not imposed, but rather agreed upon between the chambres assemblées and the monarch.Footnote 379 The appointment of Louis-Philippe as ‘King of the French’,Footnote 380 who took an oath on the Charte on August 9, 1830 in front of the chambres assemblées,Footnote 381 communicated the monarchy as pouvoir constitué . The July revolutionaries, coming from the middle and lower classes were kept away from the chambers by the relatively high electoral census, saving the status quo of the propertied bourgeoisie and the property-owning nobility (juste milieu).

In the February revolution of 1848 the civil-liberal modified constitutional monarchy was replaced with a radical-democratic (second) republic, though a shift of power in favour of the parliament did not happen, because there was no firmly structured party system.Footnote 382 The députés fonctionnaires were under the influence of Louis-Philippe and middle and lower classes followers of republican groups did not cope with the high electoral census.Footnote 383 In the interaction between Monarch and the representation of the people, consensus was the prevailing aim of the constitutions after 1830. Instead of the old dualism of Monarch and the assembly of the estates, it rather mattered that the monarch acted in accordance with the people’s representations. This principle of concensus was specified by the necessary approval of the monarch to the laws, passed by the people’s representation, or by the monarchical right to veto against legal proposals, be it definite or just dilatory.

Hence, an acting of the Monarch in accordance with the majority of the people’s representation could result in the constitutional practice, particularly since the establishment of a trusting relationship was politically smart due to the budgetary right of the people’s representations. The necessity of balancing the monarchical government and the other constitutional powers was formulated by François Pierre Guillaume Guizot , Prime Minister of the July monarchy 1840–1848: “Le devoir de cette personne royale … cest de ne gouverner que daccord avec les autres grands pouvoirs publics…“. Footnote 384 Consequently, an ongoing need for negotiation about the limitations of monarchical competencies about the responsibility of the ministers and about the treatment of the chambers in order to obtain the majority, originates according to Guizot’s argumentation: “Quelque limitées que soient les attributions de la royauté, quelque complète que soit la responsabilité de ses ministres, ils auront toujours a discuter et à traiter avec la personne royale pour lui faire accepter leurs idées et leurs résolutions, comme ils ont à discuter et à traiter avec les chambres pour y obtenir la majorité.“.Footnote 385 Thus, a fluent passage from the constitutional to the parliamentary system can be observed. Evident for this is the understanding of the constitutional practice after 1830/1831 as shaped in French research as ‘parlementarisme à double confiance’ Footnote 386: the government of the monarch is admittedly formally not bound to the parliamentary majorities, however, their consideration is political normality. The fluent passage from the constitutional to the parliamentary system could be accelerated, curbed or stopped.

This Charte 1830 led to a Europe-wide constitutional movement , and due to the connection of the constitutional movement with national struggles for freedom, the people and its representation were invigorated as constitutional factors. Like in France, a parliament took over the task of drafting a constitution in Belgium after the Revolution of 1830 : The constituent assembly , dominated by the liberal-catholic union, is pouvoir constituant , the newly-to-be-appointed King is just taking on the role as ‘pouvoir constitué’. Contrary to the French model, the Belgian Constitution is not negotiated with the monarch, but freely proclaimed by a national congress in its own right.Footnote 387

Belgian Constitution of 1831

The Belgian national congress, elected by a mixed capital and educational census,Footnote 388 passed the new constitution on February 7, 1831,Footnote 389 largely based on the draft constitution, revised by Nothomb and Devaux .Footnote 390 Though the national congress could decide on the constitutional question as pouvoir constituant , it had to take numerous diplomatic questions into account when looking for a suitable candidate to the throne.Footnote 391 The election of Prince Leopold von Saxony-Coburg-GothaFootnote 392 as ‘Leopold I, King of the Belgians’Footnote 393 guaranteed London’s support for the Belgian independence .

National sovereignty (Art. 25) Footnote 394 was compatible with the constituted monarchy (Art. 78: ‘The King has no other power, but the one, which the constitution and other laws made in accordance with the constitution formally attribute’).Footnote 395 The King had the executive power at his disposal ‘according to the regulations of the constitution’ (Art. 29). With regard to the monarchical power of legal ordinances, the hierarchy of law and regulation, as established in the French July-Charte, was inserted word by word into the Belgian constitution (Art. 67).Footnote 396 This added the non-applicability of non-legal ordinances and regulations reserved by Courts (Art. 107).Footnote 397 The legislative power was mutually due to the King and the two Chambers, the House of Representatives and the Senate as an elected regional representation of notables. Each of them had the right of legislative initiative (Art. 27 S. 1). The judiciary was exercised by independent courts. A detailed catalogue of fundamental rights, inspired by the French role model of 1830 amended the equality of the Belgians before the law. The rights of the Belgians (Second Title of the Constitution) particularly entailed the freedom of assembly and of association (Art. 19, 20).

The monarch dismissed ‘his ministers’ just like in the French July monarchy (Art. 65). According to the role model of Art. 12 of the 1830 French Charte, the responsibility of the ministers remained undefined in the text of the constitution (Art. 65 at the end). The ministerial responsibility by countersignature (Art. 64) was normatively just regulated as judicial responsibility, which could lead to ministerial impeachment (Art. 90). Neither the ministerial responsibility nor the parliamentary exertion of influence on the formation of government was envisaged in the text of the Belgian constitution, but they developed on this basis in constitutional practice. Even though the Belgian constitutional system is often termed parliamentary monarchy in the literature since its early days,Footnote 398 it has to be differentiated. There were phases of the stronger and weaker influence of the monarch on the formation of government. In the early years after the revolution, Leopold I held a comprehensive right of political participation also regarding the formation of government, so that the ministers needed ‘double trust’ in the sense of the French connotation of parlementarisme à double confiance. The King also had great influence regarding the organisation of governmental policy. The period of UnionismFootnote 399 with loose party structures and uncertain majorities left ample space for the king, especially as he was the central figure to secure the Belgian independence because of his personal contacts with England, Germany, and France. Thus, the Belgian King projected national independence. Leopold made sure that the ministers had a majority in the Chambers, but then also needed his trust. The new King naturally led the cabinet himself, and the governmental programme, which had to be realised, had to be discussed with him and possibly changed in his view. He had the “cabinet du roi” at his disposal for his personal policy planning, an own brain trust, independent of the parliament and not envisaged in the constitution.Footnote 400

The government did not obtain a more independent position until the end of Unionism in 1846/57 permitting the formation of homogenous cabinets, born by one political belief. But even at this time, a great independent scope of action regarding foreign policy remained with the King. His son Leopold II, who succeded him to the throne in 1865, led the cabinet in fundamental questions himself, and he managed to dismiss a cabinet, entrusted with parliamentary confidence, thrice, even though the parliamentary system was firmly structured, and thereby enforced his own beliefs. In the year of 1871, the King tried at first to edge individual ministers out of the government, and when he was not successful, he dismissed the whole moderately-clerical cabinet of Anethan. A few years later, he brought down the strictly clerical government of Malou , which had altered the radically liberal school law of 1876 after the narrow election victory of 1884. Even though the King sanctioned the auditing law, he achieved the resignation of the government, which was superseded by the moderately-clerical cabinet of Beernaert , so that the aspired moderation was finally achieved by the King. In the year of 1907, a whole government had to step down because of a conflict with the monarch, when the cabinet of Smet de Naeyer was not any longer able to prevail against the stubborn old monarch in the conflict on the drafting of the annexation treaty of Congo by the Belgian state. The revocations under Leopold II indicate, that the dualistic character partially continued and was regarded as a fundamental principle in the field of foreign policy and the military.

Parliamentarism in England

Under the impression of the French and Belgian revolutions, a storm of petitions burst forth in favour of the extension of the right to vote in England. In accordance with the English fondness for the historical legitimation of the Common Law, the revolutionary ideals of 1789 were disparaged to be ‘without any taste for reality or for any image or representation of virtue’.Footnote 401 The Parliament of Westminster claimed the representation of the nation. The population however was not represented (real representation), but only the spheres of interest of the high nobility (virtual representation), landowning aristocracy and bourgeois merchants of the autonomous City of London. Corruptive exertion of influence was a common occurrence. George III. (reg. 1760–1820) based his government upon the representatives, who were loyal to the royal interests, the so-called King’s Friends. On the other hand, the economic centres of the industrial revolution in Manchester, Birmingham, Sheffield, with their explosively growing population, were not represented.

As early as 1780, claims for a reform of Parliament arose, also due to the loss of reputation of the crown after the defeat in North America and the empowerment of the cabinet government of the younger Pitt (reg. 1783–1802; 1804–1806) due to the broad Tory-majority in Parliament. The worker’s movement, taking hold since the end of the eighteenth century, claimed to pursue these reform movements. By doing that, it met the aligned interests of the ascending middle class. At the same time, the royal succession of George IV (rul. 1820–1830) to William IV (rul. 1830–1837) opened the way for new elections, which brought a majority of liberal-minded Whigs into the House of Commons, who were ready for reforms. After several oppositions of the House of Lords in the years of 1831 and 1832, the Representation of the People Act 1832Footnote 402 obtained the Lord’s approval. This franchise reform, perceived as revolutionary by contemporaries, reorganised the constituencies and broadened the right to vote. Considering the high census, the moderate amplification did not amount to democratisation,Footnote 403 all the more so as this was far beyond the highly aristocratic mindscape of the Whiggist reformers. However, the slight changes to the constituencies and the right to vote sufficed to aggravate manipulations of the electoral and parliamentary votes. Neither the electoral nor the parliamentary voting results were any longer foreseeable. The parliamentary majorities were thus withdrawn from the defaults of the Crown and its related high nobility .

Additionally, the successful enforcement of the reform proposal against Crown and House of Lords strengthened the political weight of the House of Commons substantially. The self-consciousness of the House of Commons grew at that, due to which it challenged the Crown’s prerogative regarding the formation of government. Wilhelm IV fell out with the government of Melbourne over the question of the right religious policy of the Anglican Church in Ireland, and dismissed the cabinet, which had the genuine support of the parliamentary majority, just because it had lost his trust. The successive government of Peel was, despite the dissolution of parliament and new elections, not able to obtain a stable majority in the Lower House. After several defeats in vote, Robert Peel resigned in 1835. The King now saw himself forced to appoint Melbourne again, even though he did not have his trust, but solely the trust of the parliament .

Thus, the principle of the parliamentary responsibility of the government was established. This practical case was raised to be a constitutional principle by the Lower Chamber in 1841: The motion of no-confidence, which was called for by Peel as leader of the opposition against the minority cabinet of Melbourne, installed by Queen Victoria , included the statement, that the resumption of an office without the necessary trust of the Lower Chamber is against the spirit of the constitution: ‘That her Majesty’s Ministers do not sufficiently possess the Confidence of the House of Commons, to enable them to carry through the House measures which they deem of essential importance to the public welfare: and that their continuance in office, under such circumstances, is at variance with the spirit of the Constitution.’Footnote 404 Even though this motion of no-confidence passed only with the majority of one vote,Footnote 405 Victoria felt compelled, after the dissolution of parliament and new elections, to entrust Robert Peel with the formation of a government, who did not have her trust, but rather only the trust of the Lower Chamber.Footnote 406

Even though the Crown’s national power to integrate reinvigorated as a political factor of power in the quarrel of the parties on the grain tariff from 1846 onwards,Footnote 407 the loss of the royal right of prerogative to form a certain government, was irreversible. When the second great electoral reform of 1867Footnote 408 favoured a stronger structuring of the political organisations, and thus allowed for a stable majority situation in the House of Commons, the only remaining option for the crown was to appoint the head of the majority party of the Lower Chamber as Prime Minister.

Octroi of the Statuto Albertino 1848

The Octroi of the Piedmontese Statuto Albertino and the Lack of an Italian Parliamentary Assembly

Although the sensational news of the Neapolitan constitution of February 10, 1848 quickly found their way to Turin , Carlo Alberto (1831 to 1849 King of Sardinia and Duke of Savoy) himself did not go beyond the already conceded reforms at the beginning of February 1848, he rather considered abdicating on February 2. It was the note of his minister that the abdication would lead to a political destabilization and thereby may provoke an Austrian military intervention in Piedmont that caused the King to reconsider the Statuto – as was the constitutional name in the Savoy tradition. Driven by the upheavals in Genoa on February 2, which demanded a constitution comparable to the Neapolitan example of February 10, 1848 and driven by the City Council of Turin that was dominated by liberal noblemen and which demanded from the King the introduction of a representative system and the creation of a citizens’ militia, the constitutional promise of February 8, 1848 (Proclama dell’8 febbraio) was issued. It fixed as foundations of the statuto the collective exercise of the legislative power, the mutual legislative initiative or the sole executive power of the King as well as the reduction of the price for salt in order to calm down the explosive political-social situation, “a benefizio principalmente delle classi più povere”.Footnote 409

The Piedmontese Statuto Albertino of March 4, 1848 is not an oeuvre of a parliamentary assembly.Footnote 410 The octroi of the constitutional text by Carlo Alberto rather points to the similarities with the development conditions of the French Charte of 1814, the constitutions of Bavaria and Baden 1818 or the Prussian Constitution 1848/50 – ‘in order … to protect the sovereigny dignity, royal authority and peace throughout the land.’Footnote 411 The Savoy ruler granted it as holder of the sole pouvoir constituant and did not even have to adhere to an already existing constitutional draft of a Parliament. In anxiety of ‘French constitutional imports’Footnote 412 the Piedmontese King made every effort to impose the constitution since – as Duke Giacinto Borelli (1783–1860),Footnote 413 author of the Statuto, puts it – “il faut la donner, non se laisser imposer”.Footnote 414 With his strict monarchical-conservative attitude, Borelli called for the introduction of a constitution inspired by the French Charte 1814 in order to preserve his beloved Savoy royal house. In the light of the feared triple danger of the young constitutional monarchy – a Republican revolutionary export of France in combination with the supporters of Mazzini at home and the military intervention of the Metternich Austria – the moderate-liberal movement in the Savoy Kingdom was ready to accept the constitution and not to demand further reform despite its not very progressive character.

The act of granting the fundamental law (statuto fondamentale in the wording of the constitutional promise) was communicated to maintain the plenitudo potestatis of the absolute monarchy, to rationalize the old royal sacredness.Footnote 415 Therefore the preamble declares the participation of the Council (Consiglio di conferenza) as a simple gathering of an opinion. According to art. 2, the state is based on the ‘monarchical constitutional foundation’, the legislative power is ‘exercised’ (art. 3) both by the King and the two chambers.Footnote 416 ‘The person of the King is holy and inviolable’ (art. 4). The oath of the Senators and Representatives contained first the loyalty towards the King and then towards the constitution and the laws (art. 49). Compared to the French discourse before 1791 (see above III., 1.-3.), the Italian coincidence of the monarchical sovereignty in its absoluteness with the granting of the Albertine Statute Footnote 417 was meant to avoid any scope for the differentiation between pouvoir constituant and pouvoir constitué .

Italian costituzione flessibile Under the Statuto Albertino

Even though the Statuto Albertino , 1848 decreed for Piedmont-Sardinia, is not a product of a constitutional assembly but of royal counselors (Consiglio di conferenza), its extension 1860 to the kingdom of Italy can be evaluated under the tertium comparationis ‘Juridification by Constitution’: The parliament act 1861 , complementing the monarchical legitimacy by God’s grace with the nation’s consent,Footnote 418 is a remarkable example for constitutionalisation by constitutional practice: costituzione flessible . Despite its octroyed start, the monarchical-constitutional Statuto Albertino made the development of a dominating Parliament possible .Footnote 419

The first prerequisite for the evolution of a dominating Parliament was the loss of the head start by the Savoy leaders in the wars of 1848/49. After the outburst of a revolution in the Kingdom of (Austrian) Lombardy-Venetia Carlo Alberto declared war on Austria on March 23, 1848, on the advice of Camillo Benso of Cavour (1810–1861). After initial successes (Battle of Goito, May 30, 1848), the Piedmontese monarch suffered a defeat in the battle at Custozza near Lake Garda against Feldmarshall Josef Radetzky and concluded a ceasefire agreement on August 9, 1848. Venetia proclaimed the Republic. After an upheaval in the Toscana, another war took place in which Charles Albert at Novara was beaten by Radetzky on March 23, 1849. He thereupon decided to abdicate in favour of his son Victor Emmanuel II (1849–1878). The latter concluded the peace of Milan in August 1849. Venetia capitulated and Austria kept Lombardy-Venetia and thereby the hegemony in North-Western Italy.

The military weakness of the monarchic executive resulted in his dependency on the Piedmontese-Sardinian parliament . In 1852, Cavour then Prime Minister of Sardinia-Piedmont,Footnote 420 began his liberal reconstruction of the Albertine monarchy by his free trade policy, judicial reform and church legislation (free church in a free state). His program for national unification under the leadership of Sardinia-Piedmont comprised the renouncement of a revolutionary upheaval and a self-liberation in the sense of Mazzini , the reduction of absolutism by means of liberal evolution and the freeing of Italy with foreign help.Footnote 421 With the foundation of the national association (societa nazionale italiana) in 1857, he wanted to unite all patriots against Austria while drawing attention to the Italian question by participating in the Crimean war in 1855/56. By making use of the assassination attempt against Napoleon III by the nationalist Felice Orsini, Cavour received the French commitment to military support against Austria for the creation of an Italian state federation chaired by the Pope. After victories of the allies against Austria in Magenta and Solferino, the Peace of Zurich passed over Italian interest in 1859,Footnote 422 making Cavour resign in protest (January 1860). In the Treaty of Turin of 1860, France won Nizza and Savoy against Lombardy. In Southern Italy, the Mazzini supporters organized upheavals by the democratic Action Party (Crispi 1819–1901) and – after the failure of the insurgency of Palermo in 1860 – received the support of the Red Shirts under Giuseppe Garibaldo (1807–1882), which were to land in Marsala. The March of the Thousand (mille, May-September 1860) through Sicily and Calabria was to lead to the capitulation of the Papal troops in Ancona (September 1860) and the fall of the Bourbons (1861 capitulation of Gaeta). With plebiscites in Umbria, Marche and Sicily in favour of the affiliation to Sardinia, the unification process ended.

On the Extension of the Statuto Albertino 1848 to Italy 1860: From the Octroi to the Referenda

During this development towards an Italian national unification, the question of the pouvoir constituant was asked anew. A new octroi by the Piedmont King was inconceivable given the strong position that parliament had acquired in constitutional practice. The agreement with a constituant assembly, too, was not discussed in Italy. The fears of the moderate-liberal politicians surrounding Cavour against the dynamics of the supporters of Mazzini Footnote 423 and Garibaldi in a constituant assembly were far too big.

The plebiscites were instruments to confirm monarchical choices through the ‘will of the nation’. Though less than 2 % of the population had the right to vote for the first pan-italian parliament ,Footnote 424 the plebiscites served as ‘a posteriori legitimisation’.Footnote 425 The Piedmontese liberal architects of the Italian unification instrumentalized the general consent of the people with regard to the unification process as a source of legitimation for the ruling class in Parliament (“doppio livello di legittimazioneFootnote 426; “dual level of legitimationFootnote 427). This was only possible by the re-interpretation of representative government (monarchia rappresentativa) in the light of the omnipotence of Parliament as Giuseppe Mecca has pointed out in this volume.Footnote 428 The extension of the Statuto Albertino to Italy 1860 under the ‘absolute, unlimited, undefined [authority of the Parliament]’Footnote 429 saved the Savoy Monarchy from being converted into a pouvoir constitué : Vittorio Emanuele II was proclaimed by the first Parliament of Italy , opened at Turin on 18th February 1861, to be the ‘King of Italy’ by the grace of God and the will of the nation (per grazia di Dio, per volontà della nazione).Footnote 430 Adhering strictly to the Savoy state tradition, however, it preserved the previous name and did not change it in favor of the new Kingdom.

The overall Italian parlamento subalpino also declared Rome the capital in 1861, but it was still to take until 1871 when Rome became the capital by pushing back the Papal supremacy. In the Peace of Vienna of 1866, Italy received Venetia, while Southern Tyrol (Trentino) and Istria became the core territory of the Irredenta. With the September-Convention between Piedmont and France in 1864, the French troops were withdrawn for the protection of the Church State.

Improvised Parliamentarism in the Frankfurt National Assembly

The ideologisation of a western kind of constitutional monarchyFootnote 431 in Friedrich Julius Stahl’s work “Das monarchische Prinzip” (The Monarchical Principle, 1845)Footnote 432 seems to be still manifest in the cemented state-of-the-artFootnote 433 perceiving the Frankfurt draft constitution as a specifically German form of constitutionalism, whose dualism between monarch and popular representation is said to have precluded a parliamentary governmental practice. Such an ex post-explanation of the St. Paul’s church constitution (Paulskirchenverfassung) 1848/49 separates the constitutional text from societal context, political practice and constitutional interpretation and tends to misunderstand German constitutionalism after 1849 as an irreversible one-way road via the Prussian constitutional conflict to the exaggeration of the executive after 1933. Having in mind both ‘improvised parliamentarism’ in the National Assembly, as well as the debates about ministerial accountability in June 1848, such a static opposition between constitutionalism and parliamentarism is not plausible, especially when considering the fundamental politicisation of the March Revolution.

The constitutional text carefully regulated the relationship between government and parliament through several provisions: The imperial right to convene and postpone the Reichstag (§§ 79, 104, 106, 109) is precisely fixed. It is only the Volkshaus (§§ 79, 106) that could be dissolved. The Emperor’s veto concerning ordinary laws (§ 101 Abs. 2) and those altering the constitution (§ 196 Abs. 3) was only suspensive in nature and could be overcome by the Reichstag . Interior matters (Executive Commitee, Membership, Standing Orders) could be regulated by the first and second chamber without any need for the participation of the executive (§§ 110–116). Beyond this, the text of the constitution left open many questions, in particular the question of the political-parliamentary accountability of the imperial government. The analysis of the public debate provides profound arguments that the consensus between the monarchical government and the parliamentary majority dominated political thinking in the National Assembly .Footnote 434 This can even be confirmed by the constitutional deliberations on ministerial accountability in June 1848. They reveal a consensus between left, ‘old’ and constitutional liberals about a political ministerial accountability, even if the text of the constitution framed it merely judicially. So, for the representative Friedrich, of the Casino faction, an accountable Ministry could ‘not govern one day long without the majority of the National Assembly’.Footnote 435 Accountability to parliament was thought of not as a problem to be clearly regulated by law, but as a question of political style. So in the explanatory statement of the draft for the law ‘Concerning the Accountability of the Imperial Ministers’, the expectation was expressed, that a minister ‘against whom a vote of no confidence is pronounced, or whose behaviour becomes the object of constant complaint from sides of the house, will as a man of honour, resign’.Footnote 436 The political practice in the National Assembly corresponded to this. As long as the parliament was capable of functioning, the composition of the Imperial Ministry would be adapted to fit the changing majorities in the Frankfurt Parliament . The establishment of a minority cabinet in June 1849 provoked protest. The political linking of the government to the parliamentary majority was ultimately fostered by the compatibility between a mandate from the representative house and the assumption of ministerial office (§ 123).Footnote 437 Together with the role modelling of the Belgian constitution in the Frankfurt consultations, the mentioned topics of the German debate indicate the readiness for a parliamentary governmental practice on the basis of the Imperial Constitution,Footnote 438 had it come into force.

The possibility for a de facto parliamentary system of government on the basis of a ‘constitutionalist’ constitution corresponds with the openness of the ‘Sovereignty of the Nation’,Footnote 439 which Heinrich von Gagern ’s addressed to inaugurate the Paulskirchen-assembly. Such a formula implies the unique and unlimited pouvoir constituant of the National Assembly and the claim of the nation to self-government.Footnote 440 This avowal to the singular and unlimited pouvoir constituant of a not existing German nation does not make sense as a programmatic claim to self-government, but reflects the indecisiveness of the post-kantian liberalism between monarchical and popular sovereignty . It avoided the open commitment to popular sovereignty and thus the conflict with the monarchy, enabling a consensual framework between imperial government and parliamentary majority.

Summary and Outlook

Juridification by Constitution seems to be a suitable tertium comparationis for the comparative research of ReConFort on national sovereignty , and also adequate for the next key passage: the precedence of constitution.Footnote 441 The research on this next topos for ReConFort (Vol. II) leads back to the origins of the constitutional semantics at the end of the eighteenth century. The terms Verfassung, Konstitution and constitution were already in use, denoting the political condition of a state. Originally, as shaped by historical development and natural features; later, in its formation through basic laws and sovereign treaties. Besides this political terminology, medieval jurisprudence coined the maxim in the commentary to Isodore’s “lex est constitutio scripta”, which linked constitutio with positive law. The American federal constitution of 1787 and the French revolutionary constitution of 1791 tied together the threads of the political and legal argumentation: the revolutionary caesuras in relation with the British motherland and the Ancien Régime necessitated a new legal fixture of the political order. A constitution as such became the legal text to fix the political order as a legal order. As a consequence, juridification = normativity marked the new constitutional semantics . The heart of the modern normative constitutional concept is the positivity of the constitutional law as one unified law, to be the measure for the legality of all other law. As foundation for all law and legislation, the constitution is the primary norm. This conceptual differentiation of constitution and other kinds of law is not only of interest for lawyers, but also for legal historians. Its appearance is documented by the American protagonists using the antagonism ‘unconstitutional – constitutional’ to justify their legal right of resistance against an illegally-acting Westminster Parliament and to articulate their claim of being more true to the constitution than the British themselves.Footnote 442 These intentions of the American protagonists exemplify the communicative power of constitution-formation.

And last but not least, ReConFort’s historical approach to the mutual constitution-forming impact of communication may have an actual impact. It is congruent with the political postulates on EU-level following the disaster of the failed referenda on the ‘Treaty establishing a Constitution for Europe’ in 2005. On request of the European Council,Footnote 443 the Commission developed “Plan D for Democracy, Dialogue and Discussion” in 2005.Footnote 444 In its first White Paper on a European Communication Policy (2006), the Commission gave voice to the problem that the “public sphere” in Europe is largely a national sphere.Footnote 445 In the Joint Declaration “Communicating Europe in Partnership” (2008), the European Parliament, the European Council and the Commission identify the interplay between constitutional process and public debate as a crucial prerequisite for democratic participation in the Union.Footnote 446 According to the programme “Europe for Citizens to promote active European citizenship” (2007–2013), European democracy presupposes a European citizenry in the sense of a European society.Footnote 447 The current refugees’ movement towards Europe and the British challenge to the European Integration make it more necessary than ever before to elaborate the historically coined constitutional values Europe stands for.