Keywords

1 Introduction

The importance of understanding Constitutions not merely as legal texts, but also taking into account “societal context, political practice and respective constitutional interpretation”Footnote 1 calls for detailed studies how the constitutional principles were incorporated and developed in the ordinary legislation. This approach will be applied in the following paper to investigate into the relationship between the notoriously liberal Constitution of the Polish Kingdom of 1815 and one of the very few examples of a more comprehensive legislation which succeeded in being adopted in this Russian protectorate before the beginning of its annihilation after the fall of the November Uprising in 1831—Criminal Code of 1818.Footnote 2 Therefore the paper—in line with the main principles of the ReConFort research programFootnote 3 focuses not on “an abstract perception of the political history of ideas” but on “the political polemics in concrete situations of conflict”.Footnote 4

2 The Origins of the 1815 Constitution of the Kingdom of Poland

The Constitution of the Kingdom of Poland belongs to the rather less researched into among all of the European Constitutions of the XIX century; especially any kind of more extensive literature in the English language is missing. For this reason it appears crucial to make a brief introductory presentation of this legal act, aimed not only at characterising its textual content,Footnote 5 but much more importantly, at expounding the intricacies of its creation and implementation in the Kingdom of Poland .

In the following part I will be relaying on the findings of the polish secondary literature of the subject, especially on the fundamental works of S. Askenazy,Footnote 6 H. Izdebski,Footnote 7 Dariusz NawrotFootnote 8 and S. SmolkaFootnote 9 whose contributions provided us with almost everything that we currently know about the genesis of this highest normative act of the Polish Kingdom 1815–1830. Therefore, this part of the article, itself not adding to the state of the art but rather and mostly narrating the already established conclusions in the polish legal history, will serve as an introductionFootnote 10 to the presentation of the debate on the Sejm in 1818 in the subsequent part of this paper.

At the very beginning of this sketch it has to be stressed that due to the incompleteness of the preserved sources from the period of creation of the 1815 Constitution it is impossible to state with certainty what were the origins of this normative act.Footnote 11 Nonetheless there can be no doubts that after the fall of the Polish Commonwealth in the year 1795 the Polish and Lithuanian nobility living in the regions incorporated into the tsar’s Empire adopted a somewhat ambiguous approach towards the Russian authorities.Footnote 12 Praising them for providing stability and securityFootnote 13 was simultaneously intertwined with conceptualising plans and requests to obtain more autonomy under the Russian protectorateFootnote 14 and subsequently (approximately since May 1810) with attempts to decrease taxation burdens imposed by the Russian authorities.Footnote 15 Such a situation is to be explained by the fact that the great Polish noblemen (“magnateria”), after the fall of the Polish Commonwealth did not obtain independence or more autonomy, but, due to their weakness—were rather forced to seek accommodation with the partitioning powers.Footnote 16 Moreover, there was a profound conviction that the fate of Polish Commonwealth ended definitely.Footnote 17 As it has been established so far in relevant the literature of the subject,Footnote 18 those attempts for more autonomy for former polish territories remained grossly futile and did not amount to demands for granting a separate constitution.

The situation changed dramatically after the Napoleon’s war with the fifth coalition in the year 1809, which brought a stunning victory of the Duchy of Warsaw over the Austrian Empire and enabled it to expand its borders as to incorporate some of the recently partitioned Polish territories.Footnote 19 It simultaneously instilled apprehension in the Russian authorities of an imminent danger of reviving an independent and potent Polish state,Footnote 20 what would annihilate the endeavours of the Russian foreign policy of at least the last 50 years and could provoke unrest in the remaining, incorporated territories belonging previously to Polish-Lithuanian Commonwealth.Footnote 21

Consequently, tsar Alexander I Romanov , following a memorandum elaborated by M. Speranski on 11 March 1811Footnote 22 commenced to canvass for support among the Polish-Lithuanian nobility by beguiling it with a perspective of more autonomy as well as political and economic liberties. For this reason during the stay of M. K. Ogiński in Petersburg starting in April 1811, this Polish mighty nobleman (“magnat”), since 1810 also a Russian senator, was invited by the Russian tsar to present him propositions apt for satisfying the political expectations and demands of the polish population (what of course was meant here was practically solely the nobility) in the western provinces (“gubernii”) of the Russian Empire .Footnote 23 Answering this invitation, during one of the following meetings of M. K. Ogiński (which has the date of 22 October 1811 in the memoirsFootnote 24) with Alexander I , the polish nobleman attached to a letter to the tsar a project of ukaz on creation of Duchy of Lithuania,Footnote 25 highlighting the need for guarantying due respect for the old polish law, polish language and the monopoly of the public offices for “citizens living and having property in the Grand Duchy”.Footnote 26 This ukaz was so much more far-reaching than earlier similar propositions that in the contemporary secondary literature it has been labelled as “project of the Constitution of Grand Duchy of Lithuania ”.Footnote 27

It appears to be relevant in this context to stress that M. K. Ogiński in this very correspondence with Alexander I mentioned “certain explications which [he has] gathered in respect to the administration of Finland”.Footnote 28 This very fact hints at a possibility that he already had entered in closer relationships with the Russian and pro-Russian agents occupying themselves with the issue of the newly conquered Finland, which is the more probable, as the members of the so-called Committee for the Finnish issues were meeting in Sankt Petersburg since 1811.Footnote 29

Approximately at the same time, possibly starting from December 1811, a first project of what was proposed to become the highest normative act of the reborn, autonomous Lithuania was elaborated, and its authorship is tentatively attributed to two important finish politician of the pro-Russian orientation: G. A. Rosenkampff and G. M. Armfelt .Footnote 30 It is also surmised that then responsible for both polish and finish issues, the mighty close advisor of tsar Alexander I, M. Speranski was personally involved in shaping some of the stipulations of this draft.Footnote 31 This document appears to have been lost irretrievably,Footnote 32 yet it in the part of the Polish historic studies it is claimed that the preserved draft entitled Projet de Constitution du Royaume de Pologne (highly probably, if not certainly elaborated in the year 1812) is nothing else than its (slightly?) amended version.Footnote 33

The further important step in the genesis of the Polish 1815 Constitution was the presentation of the project called “The governmental law of the Grand Duchy of Lithuania ” (“Ustawa rządowa Wielkiego Księstwa Litewskiego”).Footnote 34 This document, which had 266 articles and was developedFootnote 35 jointly by Prince F. K. Drucki-Lubecki and M. K. Ogiński , who is thought to have corrected the first draft elaborated by L. Plater,Footnote 36 was presented to tsar Alexander I after he expressed his disappointment with another, earlier project, probably that elaborated by G. A. Rosenkampff and G. M. Armfelt .Footnote 37 The meticulous comparison of its content with the subsequent Constitution of the Kingdom of Poland of 1815 reveals some semblances between the two documents, especially in the structuring of its main editorial subdivisions.Footnote 38

The both aforementioned drafts were sent—with a letter from 13th April 1812Footnote 39—to Prince Adam Czartoryski, the most prominent polish politician of the pro-Russian orientation of the time for counselling, who advised elaborating another, compromising project.Footnote 40 Yet, before this could become reality, the war with Napoleon broke out.

Following the spectacular victory over the Grand Army in the year 1812 and during the ensuing military occupation of the Duchy of Warsaw by the Russian military forces,Footnote 41 the idea of creating dependent states with formally stipulated autonomy, founded on a Constitution, became politically viable.Footnote 42 It finally led to granting Constitution to the Kingdom of Poland in November 1815 by the Russian tsar.Footnote 43 This stage had been preceded by the elaboration of the Principles of the Constitution Kingdom of Poland (“Zasady Konstytucji Królestwa Polskiego z dn. 25 maja 1815 r.”) ,Footnote 44 proclaimed by Alexander I a few weeks after the ratification of treaties of Vienna 1815, i.e. on 25 May 1815.Footnote 45

The principles themselves already laid down two most significant rules which found their expression in the future text of the Constitution 1815: the eternal union with the Russian EmpireFootnote 46 and the monarchical principle , i.e. the assumption that the entire power stems from the person of the ruler.Footnote 47 They also stipulated numerous liberties , which were to be subsequently incorporated into the text of the future Constitution, such as habeas corpus ,Footnote 48 freedom of the press ,Footnote 49 protection of propertyFootnote 50 or religious freedom .Footnote 51 Yet the principles could not substitute a veritable constitution and had only temporary significance.Footnote 52

The widespread view in the Polish legal historyFootnote 53 states that the fervent half-year periodFootnote 54 between the acceptance of the Principles of the Constitution of the Kingdom of Poland from 25th May 1815 and its final signing on 27th November 1815 abounded in constitutional drafts.Footnote 55 The need for such drafting was further exacerbated by the fact that part of the polish societyFootnote 56 was against restoring the Constitution of 3rd May 1791 , a postulate which had been formulated by the conservative circles of the Duchy of Warsaw Footnote 57 and which even had been alluded to in Art. 1 of the Principles of the Constitution of the Kingdom of Poland from 25th May 1815.Footnote 58

The most significant of those projects is a 438-articles long document , attributed solely to L. Plater and submitted to the provisional government of the Kingdom in a letter dated on 26 August 1815.Footnote 59 It is highly probable that due to the similarities between Plater ‘s project and “The governmental law of the Grand Duchy of Lithuania ” (“Ustawa rządowa Wielkiego Księstwa Litewskiego”) this last paper must have had been an important source of inspiration for L. Plater .Footnote 60 Due to the supposed criticism issued at this draft by numerous prominent figures of the then polish public life, including A. Czartoryski, A. Linecki Footnote 61 as well as by I. Sobolewski Footnote 62 and J.K. Szaniawski Footnote 63 it was profoundly reshaped and shortened, possibly by a wider commission of the polish politicians of the time, probably including F. K. Drucki-Lubecki , T. Wawrzecki and A. Czartoryski ,Footnote 64 flavouring it with a distinctively liberal spirit. According to S. Akenazy it resulted in creating a new, concise project of 162 articles which was then submitted to the monarch during his stance in Warsaw in November 1815, who after annotating it, referred it to Ignacy Sobolewski for further revision.Footnote 65 The final touch nonetheless belonged to the hand of the absolute tsar Alexander I , who once again comprehensively reviewed the draft before ratifying it.Footnote 66

As soon as this work has been accomplished, any plans aimed at unifying Lithuania with the Kingdom of Poland were postponed indefinitely.Footnote 67 This, together with the fact of instrumental treatment of drafts of the Constitution for the Grand Duchy of Lithuania, which appear to have been merely an instrument for winning over the support of Polish nobilityFootnote 68 and possibly providing military support for the incoming war with Napoleon reveal a true meaning of Russian policy.Footnote 69

3 General Characteristics of the Constitution of 1815

It is not an objective of this paper to offer a meticulous overview of the regulations of the Constitution of 1815, yet owing to the shortage of the relevant English literature of the subject before more specific regulations of this normative act concerning the criminal law will be presented in depth, it appears reasonable to outline its main framework and regulatory content in general.

The Constitution of the Kingdom of Poland from the year 1815 is considerably longer then the two previous Polish Constitutions, namely the ground-braking Constitution of 3 May 1791 and the Constitution of the Duchy of Warsaw 1807: it comprises 4453 wordsFootnote 70 and is divided into 7 main editorial parts—titles.Footnote 71 Two most extensive titles, namely third—“Government” and forth—“Of the national representation” are additionally subdivided into respectively 5 and 6 chapters.Footnote 72 Quantitatively speaking, the most significant number of the legal norms has been devoted to the regulation of the division of powers ,Footnote 73 with the structure of titles number 3–5 apparently referring to the idea of trias politica whose elaboration is commonly attributed to Baron de Montesquieu .

Among those regulations upon the diverse branches of government two legal norms appear to possess towering importance for recreating the balance of power in the Kingdom, namely Art. 35, stating that: “The government resides in the person of the King . He exercises in all their plenitude the functions of executive power. All executive and administrative authority must emanate from him”, supplemented by the provision of Art. 86: “The legislative power resides in the person of the King and in the two chambers of the Sejm, conformably with the regulations of the article thirty-one”. Highlighting the position of the king here is not purely coincidental. It possibly stems from the final stage of the drafting of the Constitution, personally conducted by Alexander I which was aimed at securing the unalloyed supremacy of the Russian tsar in the Polish Kingdom.Footnote 74 According to the 1815 Constitution such a central position of the king did not curb the freedom of the judiciary : in art. 138 there is a solemn proclamation that: “The judicial order is constitutionally independent”, what is supplemented by the guarantee that “the judges nominated by the King are for life and cannot be removed”.Footnote 75 There are also provisions for the highest tribunal in Warsaw, which “shall finally determine all civil and criminal cases, state crimes excepted ”,Footnote 76 leaving the king no other competence than to grant pardon to the offenders.Footnote 77

For the purpose of a general presentation of the system of legislative and executive powers as moulded in the Constitution of 1815 it shall be underscored that the Polish Parliament—Sejm, following the Polish tradition going back at least to the XV century, was divided into two chambers: Deputies’ Chamber (Izba Poselska)Footnote 78 and Senate (Senat).Footnote 79 However what was a veritable breakthrough for the entire Polish constitutional history was the regulation of art. 130. It enabled anyone who was: “paying any amount of contribution upon his estate” to participate with suffrage rights in communal assemblies , which were responsible for choosing 51 out of 126 members of the Deputies’ Chamber (Izba Poselska).Footnote 80 Those two chambers of the Parliament did not have a right to initiate legislation though, but were voting on the projects of laws submitted upon the King’s order, be it previously elaborated by State’s Council (Rada Stanu) or not.Footnote 81

It was this State’s Council (Rada Stanu) , consisting of a smaller Administrative Council (Rada Administracyjna) and of General Assembly (Zgromadzenie Ogólne) as plenary bodyFootnote 82 which together with the king’s representative was to “administer the affairs of the kingdom in the King’s name, during his absence.”Footnote 83—what obviously due to the presence of the tsar in St. Petersburg was a normal situation. State’s Council (Rada Stanu) was subordinated to Parliament by the obligation to present general report on its activities,Footnote 84 which used to be heavily debated in Deputies’ Chamber (Izba Poselska), creating a suitable opportunity for the parliamentary opposition to severely criticise the government of the Kingdom. Another example of a formal subordination of State’s Council (Rada Stanu) under the Sejm’s scrutiny was the juridical cognition of Parliament’s Court (Sąd Sejmowy) over the infrigments of the Constitution and ordinary laws by the Ministers of State’s Council (Rada Stanu) and other executive clerks.Footnote 85

Those backbone regulations are preceded by the critical for the position of the Polish state first title of the 1815 Constitution. It formally stipulated a dependent position of the Kingdom, which was to be “for ever united to the Empire of Russia ”.Footnote 86 The nature of this unification appeared according to art. 3 to be limited to the personal union, with the Russian tsar being simultaneously the king of Poland.Footnote 87 In case of his absence in the Kingdom of Poland, the tsar shall nominate his representative (“Namiestnik”), being either a Russian Prince of the Blood or a Polish citizen,Footnote 88 laying down at the same time the extent of his prerogatives.Footnote 89 Nonetheless, it was also regulated that the foreign policy is common for both countries,Footnote 90 yet the tsar could allow the Kingdom to be party to the international treaties.Footnote 91

Following those stipulations of the opening title of the Polish 1815 Constitution , it is a very controversial issue to what extend the Kingdom of Poland could be considered to have been an independent subject of international law. It appears right to state that the historical examples of the treaties signed by the Kingdom of PolandFootnote 92 are a vital indication that it was not merely an intrinsic part of the Russian Empire , but was at least partially recognised internationally.Footnote 93

Another highly significant part of the stipulations was a combination of individual and collective human rights incorporated into title II of the Polish 1815 Constitution. They encompassed i.a. religious freedom and prohibition of civil and political discrimination on religious grounds ,Footnote 94 freedom of print ,Footnote 95 freedom from unsubstantiated persecution and illegal imprisonment,Footnote 96 personal freedom ,Footnote 97 protection of property,Footnote 98 guarantee of the usage of Polish language in public affairsFootnote 99 and sole access of the Poles to the public, be it civil or military, functions.Footnote 100 There was a guarantee of the responsibility of the civil servants for professional activities as public functionaries as well as a vague proclamation that “The law shall protect every class of citizens alike, without regard to their rank or condition”.Footnote 101 Those rights and liberties were not restricted to polish citizens since: “Every legitimated foreigner shall enjoy the protection of the laws and the advantages which they secure on the same footing as the other inhabitants”.Footnote 102

Finally, the closing title of the 1815 Constitution contains some transitional and organisational regulations, of which two as being highly important merit closer attention: art. 160, which preserved certain polish civil and military awards and art. 165 which, read a contrario, kept in force all the previous statues which were not contrary to the adopted Constitution.Footnote 103 Therefore it is right in my view to speak about the legal continuity between the Duchy of Warsaw and the Polish Kingdom.Footnote 104

It is important to note that from the formal point of view this Constitution has to be perceived as being one of the most liberal in post-congress Europe,Footnote 105 giving suffrage rights to more than 100,000 people, including peasants Footnote 106 and numerous civil freedoms .Footnote 107 However, it was perennially infringed by the Russian authorities, being reduced to nothing more than an instrument of propaganda, attesting to the alleged liberal approach of the Russian tsar in respect to the Polish Kingdom.Footnote 108 A blatant example of such infringements was the notorious curbing of the independence of the judiciary, especially by not-appointing judges and replacing them with dependent deputy-judges,Footnote 109 eradicating the freedom of the press Footnote 110 or even more outright by not convoking Sejm within the time limits specified in the ConstitutionFootnote 111 or making confidential its proceedings.Footnote 112

That instrumental treatment of the Polish 1815 Constitution as merely a propaganda tool, which contradicted the stipulations of the Vienna Congress in respect to Poland, became quickly known.Footnote 113 Moreover, it has been recognized that the 1815 Constitution was used as fake instrument to appease the Polish societyFootnote 114 and was nothing more than a good will of the Russian tsar,Footnote 115 who one-sidedly granted it to the Polish Kingdom.Footnote 116 This approach is fully consistent with the view of the Russian politicians who constantly feared the polish striving for independence.Footnote 117

Interestingly, the Polish Constitution of 1815 was not—unlike some other XIX-century ConstitutionsFootnote 118—subject to any more extensive legal, philosophical or journalistic commenting by the contemporaries. There can hardly be found any study books or monographs devoted to the legal analysis of this normative act stemming from the 1815–1830 period.Footnote 119 This situation renders it necessary to seek the legal positions towards this Constitution in dispersed stances made by the participants of the public life of the Polish Kingdom 1815–1830.

In this public life of the Kingdom it is important however and for the purpose of this article also sufficient to discern two major currents. The first one perceived the 1815 Constitution as a magnanimous gesture of the Russian tsar who kindly granted it to the Kingdom and is free to revoke it anytime he pleases.Footnote 120 Consequently, the inhabitants of the Polish Kingdom shall strive to peacefully cooperate with the Russian authorities, utilising the methods available to them within the existing political situation.Footnote 121 The second major current treated the Constitution as a mutual contract between the tsar (being simultaneously the polish king) and the polish society.Footnote 122 Based on those premises the representatives of this approach voiced their disapproval at every infringement of the highest normative act of the Kingdom .Footnote 123 After a fierce battle between those two attitudes on the Sejm in the year 1820Footnote 124 this liberal, opposing current started gaining momentum and became a catalyst for the military November uprising in 1830/1831.

4 Regulations in the 1815 Constitution Concerning the Criminal Law

The decisive constitutional normativity of the Constitutions as developed in the end of the 18th century expressed itself i.a. as the requirement that statutory law should be congruent with the hierarchically higher placed text of a written Constitution.Footnote 125 This idea—of a legal system as a system combining various levels of normativity where regulations on each level have to be in conformity with that placed above—has persevered, be it significantly more sophisticated,Footnote 126 until nowadays. Consequently, the particular laws, such as regulations in the field of private or criminal law can be perceived as an extension, development or concretisation of the constitutional principles.

Yet there is another important aspect of this hierarchical structuring of the legal system, namely that a written Constitution shall lie down the basic principles for all branches of law in order to enable to verify their “constitutionality”, since otherwise this verification process could not effectively take place. Correspondingly, in order to comprehend the development of this decisive constitutional normativity in the field relevant for this paper it is necessary to outline those regulations of the 1815 Constitution of the Kingdom of Poland which pertain to the criminal law.

Careful perusal of this normative act gives little reason to expect that any more detailed regulations concerning the criminal law could be encountered here, since already in the Art. 4 its narrow regulatory scope appears to be laid down very precisely: “The Constitutional Charter determines the manner, the principle, and the exercise of the sovereign authority”. Yet no later than in Chapter II of the Constitution, labelled “General Guarantees” lying down—as it has already been mentioned above—the basic rights in the Kingdom of Poland there are incorporated numerous regulations concerning both the criminal procedure as well as the substantive criminal law itself. Above all there is a towering proclamation of the Art. 17: “The law shall protect every class of citizens, alike, without regard to their rank or condition.ˮ More specifically for the field of criminal law, the Art. 23 states that: “No man shall be punished except in conformity with the existing laws and by the decree of the competent Magistrate.ˮ Further, Art. 26 in its third sentence declares that: “Any person attempting to appropriate the property of another shall be held to be a disturber of the public peace and punished accordingly.ˮ

Apart from those provisions, there can also be found some regulations concerning the legislative process in the field of the criminal law. Art. 90 expressly highlights the competence of Sejm (understood as the gathering of the two chambers of the polish Parliament) to consider the projects i.a. in the field of the penal legislation,Footnote 127 for which, according to art. 98 of the Constitution, separate Commissions should be established.Footnote 128

More importantly for the very question of the precedence of the Constitution, the already discussed Art. 165 stated that: “All anterior laws and institutions which maybe Contrary to the present charter are hereby abrogatedˮ. This stipulation, combined with the regulation of Art. 55 and 82Footnote 129 which introduced personal responsibility of the members of regency and ministers for every act infringing the Constitution, were the most far-fetched regulations concerning the supremacy of this legal act, even though they were not explicit in their formulations.Footnote 130

Analysing the Polish 1815 Constitution in a historical perspective, it has to be highlighted that its regulations in the matters of criminal laws were significantly more far-reaching than both the Polish Constitution of 3 May 1791 as well as the Constitution of the Duchy of Warsaw . The first one did not even stipulate formal equality before the law and was oblivious to such rudimentary principles of criminal law as nullum crimen sine lege ,Footnote 131 already explicitly recognised in the French Declaration of the Rights of Man and of the Citizen .Footnote 132 The second one was limited to formalising the political order of this newly established, Napoleonic state and did go little beyond founding formal equality before the law,Footnote 133 stating the openness for the public of the judicial cases in criminal matters and reserving the competence to enact new criminal legislation for the Main Sejm (Sejm Główny), the Polish Parliament of that time.Footnote 134 Furthermore, it has to be stated that in the 1815 Constitution of the Kingdom of Poland the regulations concerning the criminal law were noticeably more comprehensive and detailed than in the paradigmatic for the entire post-congress Europe French Constitutional Charter of 1814 .Footnote 135 This strengthens the thesis that it had not been inspired by this post-revolutionary piece of legislation.Footnote 136

5 The Enactment of the Polish Criminal Code of 1818

The idea to create a modern codification in the field of the criminal law in Poland can be traced back at least to the Constitution of 3 May 1791 , which in its VIII Sect. 6 in fine promised to codify both criminal and civil laws of the country.Footnote 137 It was revived on the Sejm of Grand Duchy of Warsaw of 1809, where in the resolution taken on 18 March 1809Footnote 138 the application of the old Polish laws, and—on a subsidiary basis—of the Prussian legislation was stipulated: “as long as a proper for the Duchy of Warsaw Criminal Code cannot be elaborated”.Footnote 139

In the dramatically changed political situation, with the establishment of the Kingdom of Poland after the Vienna Congress in the year 1815, tied by a real union to the Russian Empire , the works on a new Criminal Code were seriously commenced only after the Russian tsar via the minister or secretary of state of the Polish Kingdom made a formal request to the government of the Kingdom to prepare such an act in the year 1817.Footnote 140 One of the possible cardinal reasons for such a decision was the disparity existing between different laws which were in force in the Kingdom, encompassing Prussian and Austrian criminal statutes, what in turn significantly hampered the efficacious functioning of the criminal judiciary,Footnote 141 another: the long standing yearning of the Polish society for a modern codification of criminal law.Footnote 142

It is certain however that the idea of elaborating an original Polish Criminal Code was abandoned due to the explicit decision of the governor of the Kingdom of Poland, Józef Zajączek , from 29 December 1817 and replaced with the subsequent endeavours to adopt the Austrian Criminal Code of 1803 , after modifying it as to fit into the Polish social, legal and intellectual background.Footnote 143 The ensuing, hastily works led to preparing—within less than 3 months—a complete project of a criminal codification which was submitted to the Polish Sejm in a printed version on 30 March 1818, after its final acceptance by State’s Council (Rada Stanu) 17 days earlier.Footnote 144 During the meeting of State’s Council (Rada Stanu) on the 30 March it was also decided that the discussion on the project in Sejm shall not exceed 6 days.Footnote 145 Such a mode of proceedings significantly limited the possibility of any broader public debate and it renders it necessary to seek echoes of the discussions on respecting the constitutional principles in the to-be-enacted Criminal Code in the speeches of the members of the Deputies’ Chamber and of Senate.

Consequently, it is necessary to analyse the parliamentary works of the Sejm in the year 1818. In the gathering of the Parliament of Kingdom of Poland in the year 1818 the project itself was worked upon in two separate stages. During the first stage it was analysed by the joint legislative Commissions of the Sejm; only later, at the second stage, it was debated on the general forum of the Sejm.Footnote 146 During this first phase there had been formulated altogether 58 propositions of amendments to the project, submitted to State’s Council (Rada Stanu) for acceptance, out of which some are directly related with the questions of the precedence of Constitution and the division of powers.Footnote 147

First of such amendments pertained to the proposition to change the wording of article 98 of the project of the Criminal Code in order to treat as a crime of abuse of power cases where a minister countersigns a decree of the king or of the governor which is “against Constitution and the laws” as well as to treat as such crimes the cases of issuing ordnances “against the regulations of the Constitution, organic statutes , laws or the resolutions of the king or king’s representative”Footnote 148 by the ministers or members of the governmental commissions. The second proposed amendment concerned adding formulation in the aforementioned article that judges were to become culpable of the abuse of power if they neglected to act correctly and diligently, but at the same time did not curb the “protected in the article 138 and 139 of the Constitution independence of the judiciary”.Footnote 149 Third likewise interesting amendment of the joint legislative Commissions was related with the open wording of the statute on robbery, which after mentioning different ways of acquiring possession of the goods ended with “etc”. Such an open-ended statute was rejected by the Commission which wanted to prevent “arbitrariness of the judges” and demanded that the addition “etc.” shall be dropped.Footnote 150 This last proposed amendment appears to be very significant since it testifies to the awareness of the representatives to the Parliament (“Sejm”) of the high value of strict interpretation of the legality principle, an attitude that was even going beyond the regulations of the Constitution of 1815, being itself still far from explicitly acknowledging the nullum crimen sine lege certa doctrine. Yet it was, together with the second amendment presented above, rejected by State’s Council (Rada Stanu) and did not become binding law.Footnote 151

This aspect of the judiciary as the constituted power, with the endeavours to bind the judges to the greatest possible extend by the formulations of the codified statutes was raised once again during the second phase of the legislative process, namely in the discussions on the forum by the representatives in the Deputy Chamber of the Sejm.Footnote 152 Closer scrutiny of this plenary debate, which took place on 18, 20 and 21 April 1818 reveals the fact that this was a recurrent leitmotif in the speeches of the deputies, starting from the very first discourse opening the debate on the project of Criminal Code pronounced by the Sejm Marshall, who highlighted the fact that: “In the constitutional countries the law should be clear and enlightened, leaving no freedom for a judge , since otherwise he will govern according to it and not according to the law and therefore he will become omnipotent”.Footnote 153

But the discussions were not limited to that problem. In fact, while fiercely debating upon the project of the Criminal Code, the representatives to the Parliament (“Sejm”) were quite frequently resorting in their speeches to the Constitution. Those references were made in several contexts and in different manners.

First argumentative strategyFootnote 154 is used to clearly manifest that the project of the Criminal Code is consistent with the 1815 Constitution of the Kingdom of Poland. Representatives to the Parliament (“Sejm”) bring it forward in form of general remarks: Wincenty Krasiński stresses the fact that the project “not only aims at securing the constitutional laws, but also will supply us with national laws, appropriate for our existence”.Footnote 155 For Ksawery Potocki the project is “inspired by the old and the new laws which we are familiar with (…) [and is] tailored to the Constitution”Footnote 156 and there is no punishment in form of “an expulsion from the country since Art. 25 [of the Constitution] states clearly that a sentenced person will serve his sentence in the Kingdom”.Footnote 157 Similarly Ksawery Potocki during session held on 20 April 1818 underlines: “Confiscation as contrary to the Constitution is at no place prevalent in the Codex.”Footnote 158 For Mr. Hakenszmidt the project is “completely tailored to the Constitution, encompassing protection from the arbitrariness of the clerks”,Footnote 159 an argument repeated by Duke Komorowski Footnote 160 and in a more general manner by Mr. Jasiński .Footnote 161

The Constitution is also invoked for more specific issues, particularly in order to justify the punishment for certain crimes.Footnote 162 Consequently, for Mr. Obniski “the religion of our ancestors is protected according to the Constitutional Charter (…) suicide is not forgotten and the polygamy and the perjury is counted as a felony”.Footnote 163 The division introduced in the project between the felonies, offences and misdemeanours is said to be coherent with Art. 146 and 149 of the Constitution.Footnote 164

Another specific issue is raised by those speakers who point to the fact that this project strengthens the constitutional freedoms. Among this group of speeches Mr. Chmielewski praises the project for “being support for the constitutional freedoms”.Footnote 165 Further still: “it is a new honour for the project that it so clearly protects our Constitution”.Footnote 166 The interesting issue concerning the constitutionally guaranteed equality before the law has been brought forward by Mr. Oebschelwitz , who pointing to the different criminal laws in force in Kingdom of Poland in the year 1818 (principally Austrian and Prussian) reaches the conclusion about the violation of the constitutional principle of the equality as laid down in Art. 17 of the Constitution,Footnote 167 what urges to adopt a new, uniform Criminal Code. The same speaker stroke down the argumentation that a Criminal Code cannot be adopted unless a Code of Criminal Procedure has been elaborated by highlighting the necessity to develop the organisation of the judiciary as outlined in the constitutional order in the first place.Footnote 168

All of that presented stances corroborate the fact that the vision of the Constitution as a primary and preceding normative act with which the Criminal Code should be coherent is clearly respected. Further still, there can be found a view that the Code shall also be interpreted and applied consistently with the Constitution: it is deputy Hakenszmidt who during the last day of the discussion on the project in the lower Chamber of the Sejm stresses the fact that the punishments which are projected in the Codex shall be meted out equally since “The constitutional statue does not distinguish between the estates”.Footnote 169

The same argumentative strategies centring on the Constitution were also implemented by the adversaries of the project. Here it can also be distinguished between the general references to the Constitution, sometimes verging on purely rhetorical figures, and references made in very particular constitutional questions.

As for the case of the first approach, it was raised that the project, being inspired by the Austrian laws: “is contradictory to this spirit, which exists in our entire Constitution”Footnote 170 or simply “possibly less consistent with the Constitution then the laws in force at the moment”.Footnote 171 Clear illustration of the second type of the argumentation is provided by the speech of Mr. Biernacki, who advocates that there “can be no punishments for the persecutors as well as for the clerks, since the persecutors are judicial magistrates and the independence of the judiciary is the most beautiful characteristics of the Constitution”.Footnote 172 It is also rather the Code of the Criminal Procedure where “most clearly the blessed results for the Constitution can manifest themselves”Footnote 173 than the Criminal Code itself. However, there can be found even more radical voices, which implicitly charge the government with working in detriment to the country, in breach of the Constitution and attempting to vilify the project as insufficient to protect the constitutional interest of the Kingdom, since according to Mr. Krysiński “the offences are quite often a result of the activity of the government itself”.Footnote 174 There are also fears whether the crimes which consist in breaching the Constitution will be unveiled at all.Footnote 175

Other main argumentative strategy is based on underlining the fact that the project is congruent with the principles already recognised in the Polish ConstitutionalismFootnote 176 . In this sense Mr. Obniski refers to the fact that: “the arbitrariness of the judge has been limited since the law clearly prescribes him what penalty for any kind of felony should be meted out, it can be neither a more severe nor a milder one than the one that the law prescribes”.Footnote 177 It is also the attitude of another representative in the Deputies’ Chamber, Mr. Chmielewski , who calls for considering whether the project “will not serve the judges [as pretext] for arbitrariness”.Footnote 178 Even more surprising, according to yet another speakerFootnote 179 the acceptance of the project will lead to developing the principle of periodical revival of the Constitution, as established by the Constitution of 3rd May.Footnote 180 For those speakers who are more positive towards the existing political state of the Kingdom of Poland the elaboration of the draft of Criminal Code can be seen as a further development of the Constitution, just as the reform of the courts’ organisation.Footnote 181

By the same token, the references to the inheritance of Polish Constitutionalism are also exploited by the adversaries of the project, who stress that it shall be rejected since it is “contrary to our way of thinking, our liberal Constitution”.Footnote 182 The large scope of the punishments that can be chosen from by the judges is criticised as being catalyst for their arbitrariness whereas in a “constitutional nation [it is the] law [which] should judge the misdemeanours and the crimes of a man”.Footnote 183

The semblance of those diverse argumentative strategies can be easily found in the discussion devoted to the project of Criminal Code in Senate. Yet here the number of the presented views was limited significantly owing to the simple fact that the discussion was taking place solely during one day, i.e. on 23 April 1818.Footnote 184 Support for the project was manifested by pointing to the Constitution as its foundationFootnote 185 or praising leaving the apostasy of the catholic religion besides the scope of the criminalisation,Footnote 186 while the scepticism towards the proposed codification was manifested by emphasising that the Code infringes the constitutional principle of equality before the lawFootnote 187 or the principle of the constitutional protection of the Christians religionsFootnote 188 or even highlighting the incongruity of the corporal punishments with “the nature of the constitutional government”.Footnote 189

The above presented voices of the representatives in the gathering of the Polish Parliament in 1818 provide explicit evidence that 1815 Constitution was perceived as a supreme law which ordinary legislation has to respect and be consistent with. It also manifests the growth of the Constitutionalism perceived here as the legalist position demanding that the Constitution of the Polish Kingdom shall be respected any time and under any circumstances,Footnote 190 the position which will be bolstered in the subsequent years by liberal opposition on the Sejm under the lead of the Niemojowscy brothers . For the purposes of this brief study it remains to be verified how this constitutional approach was reflected in the text of the enacted Criminal Code itself.

However before this question will be approached, is worth stressing that the Criminal Code of 1818 was not the only example of the Polish criminal legislation in the Kingdom of Poland . The important case of other regulation in this field is provided by the military criminal law. The statues which were in force here included the Criminal Code for the Polish Army of the KingdomFootnote 191 as well as the official translations of several French military statues, which were continued to be applied, irrespectively of the fall of the Duchy of Warsaw .Footnote 192

The most characteristic feature of this part of the criminal legislation was the fact that it had been introduced without any formal legislative procedure and gave powers to an army’s general in charge to enact further criminal statues for the soldiers under his command.Footnote 193 Therefore, it constituted a grave violation of the constitutional principles, especially of the principle of the legality. It was also illustrative for both the political and the legal situation of the Kingdom of Poland where the military, under the leadership of the brother of Russian tsar Alexander I , Duke Konstantin Pavlovich had a special status, clearly violating the stipulated and proclaimed constitutional order.

6 The Evaluation of the Congruity of the Criminal Code of 1818 with the 1815 Constitution of the Kingdom of Poland

Having made the preceding considerations, it shall be analysed now to which extend the enacted criminal lawFootnote 194 was consistent with the presented regulations of the 1815 Constitution. Such an analysis appears to be particularly interesting bearing in mind the fact that it was almost a unique example of a codification of an entire branch of law in the Kingdom of Poland ,Footnote 195 and so far it has not been analysed more closely in this respect.Footnote 196

The 1818 Code of Criminal Law generally acceptedFootnote 197 the principle of equality before the law, but it did encounter some minor exceptions. Most notably, according to the Art. 156, 160a-b of the Code, theft, nominally a misdemeanour, shall be considered as felony when it was committed through the servants to the detriment of their masters or by the apprentices to the detriment of their crafts’ masters.

This regulation had been criticised both in the legal literature contemporary to the enactment of the 1818 CodeFootnote 198 as well as in the only XX-century monographic study on the Code, being classified as a remnant of feudalism, infringing the formal equality before the law.Footnote 199 Nevertheless, it has to be noticed that this particular mode of committing a theft stands out for abusing a special relationship of trust that should exist between a master and a servant and is getting close to embezzlement, what enables to understand treating it more severely. Similarly, it would be hard to consider the regulation of Art. 227 of the 1818 Criminal Code, which stated that: “If the fortune of a sentenced person is sufficient, the punishment of an arrest in a public house can be converted to a pecuniary punishment, but only there, where the law explicitly enables for such a change”Footnote 200 as such a type of an infringement, since even in the contemporary criminal law the delivered sentence can be commuted on numerous reasons and in very different manners.Footnote 201

The Code of Criminal Law of 1818 respects the principle of nullum crimen sine lege poenali,Footnote 202 expressed in its Art. 6: “As a felony, offence or misdemeanour only such a deed can be considered and punished, which according to this law has been found to be a felony, offence or misdemeanour”. This rule was further supplemented by Art. 48-49, 60 and 225 which guaranteed that no other punishment can be meted out as that which had been explicitly mentioned in the Criminal Code.Footnote 203

However there were notable exceptions to this approach: firstly, the rule was not respected in case of the misdemeanours, since art. 588 of the Code stated that “all the police misdemeanours which are not encompassed in this book shall be, according to their nature, considered to be belonging to one of the three chapters of this book und punished according to the punishments specified there.”Footnote 204 In case of the misdemeanours the 1818 Code also did not specify the required mental requirement of the perpetrator, but it hardly can be considered to be a breach of the legality principle.Footnote 205 Nonetheless, to some degree this principle was infringed by two other statues, Art. 362 and 382 which stated that: “All other acts or omissions in respect to the security of human life, which endanger the natural and common duties of every man or which had been committed contrary to the explicit regulations of the law, which due to the number of their cases cannot be specified (…) shall be punished”.Footnote 206 Very similar approach can be found in the art. 186, which stated that: “Even though the cases of fraud and falsification due to their great number cannot be enumerated, the crime of falsification is committed when: (…)” giving only an exemplary and not complete list of the cases of frauds and falsifications.

Further, the 1818 Code did contain numerous provisions which elaborated the constitutional principle of the protection of the property, as specified in Art. 26 of the 1815 Constitution. This was guaranteed by a hoist of different offences specified in Chapter XI of the II Book of the Criminal Code.Footnote 207

Interestingly, the Criminal Code of 1818 did contain a very specific provision about the criminal activity against the Constitution itself, namely Art. 247, according to which: “Who maliciously, by the means of scoffing writings or prints gives rise among the inhabitants of the country to disdain of the Constitution or attempts to give rise to such a disdain, shall be punished with arrest in a public house between 3 months and one yearˮ. This regulation clearly testifies how highly valued this legal act was, but also corroborates the persevering existence of an illusion that within the framework of the constitutional order of the Kingdom of Poland certain reasonable modus vivendi with the Russian Empire could be achieved.

Finally, it is worth stressing the fact that the Code already did adhere to several modern principles of the criminal law, such as cognitationis nemo patitur,Footnote 208 going even beyond the text of the Constitution itself and possibly paving the way for the development of future Polish Constitutionalism and human rights.Footnote 209

Briefly summarising the above presented implementation of the principles of the 1815 Constitution of Kingdom of Poland into the Criminal Code of 1818, it has to be stated that they did not amount to seriously contradicting the provisions of the adopted codification und could be easily revoked by a means of a simple subsequent amendment of this codification, being the more probable as the science of the Criminal law in Poland was starting to germinate at this time.Footnote 210 Yet the changing political circumstances rendered the further development of the legislation in line with the established constitutional principles simply impossible.

7 Conclusions

The above analysed proceedings concerning the elaboration and implementation of the Criminal Code of 1818, outstanding for being the first example of the Polish modern codification of substantial criminal law, did reveal profound respect for and importance of the regulations Polish 1815 Constitution . It manifested itself in the only available expression of the public debate in the given political circumstances, namely on the Parliaments’ forum.

Even though there can be hardly found any printed essays or newspapers articles considering the issue of the congruence of the 1818 Criminal Code with the Constitution, undoubtedly among the representatives of the Polish voters in the Parliament (“Sejm”) of 1818, irrespectively whether they were in favour of the codification—voters being proportionally the most numerous in that time in continental Europe—the idea that a Criminal Code should implement and develop the principles of this fundamental law was wholeheartedly accepted. Even though for the Russian authorities, including the tsar Alexander I Romanov, the Constitution was merely a pretence meant to appease the Polish society in its longing for independence, an utterly instrumental subterfuge, which could be one-sidedly amendedFootnote 211 and disrespected when convenient, for the Polish society and especially for the elected representatives to Sejm it was perceived as veritable supreme law in the country, which shall be respected and implemented by the ordinary legislation. This striking contrast between the legalist position of the Polish society and arbitrariness of the growing Russian despotism eventually incited the people of Kingdom to resort to the last possible means in defence of the 1815 Constitution —to a military uprising.Footnote 212

It clearly shows the strength of the Polish Constitutionalism , not subdued by the difficult political circumstances and can be an inspiring example for our times.

8 Summary (Polish)

Studium poświęcone jest zagadnieniu hierarchicznej nadrzędności Konstytucji Królestwa Polskiego z roku 1815. Artykuł podzielony został na trzy zasadnicze części.

W pierwszej, wprowadzającej części omówiona została geneza Konstytucji roku 1815. W opracowaniu objaśniono zagranicznemu czytelnikowi w oparciu o ustalenia polskiej literatury sekundarnej, opierając się na ustaleniach takich autorów jak S. Smólka, S. Askenazy, H. Izdebski (w zasadniczej mierze), D. Nawrot, że Konstytucja Królestwa Polskiego z roku 1815 została wykoncypowana jako narzędzie propagandowe w zabiegach o poparcie polskiego i litewskiego społeczeństwa w trakcie wojen napoleońskich. Omówiono bliżej jej genezę, wskazując, iż była ona opracowywana począwszy od roku 1811 z udziałem polskich polityków orientacji pro-rosyjskiej, takich jak A Czartoryski , książę F. K. Drucki-Lubecki , M. K. Ogiński , czy L. Plater . Po przełomowym zwycięstwie szóstej koalicji z udziałem Alexandra I nad wojskami francuskimi, stała się kamieniem węgielnym odrodzonego na Kongresie Wiedeńskim, wieczyście połączonego z Cesarstwem Rosyjskim Królestwa Polskiego.

W kolejnej partii opracowania dokonano dla czytelnika zagranicznego naszkicowania zasadniczych postanowień Konstytucji z roku 1815 ze szczególnym uwzględnieniem tych regulacji, które odnoszą się do kwestii nadrzędności Konstytucji oraz prawa karnego.

Trzecia, właściwa cześć opracowania omawia zagadnienie nadrzędności Konstytucji 1815 rokuna przykładzie procesu legislacyjnego jedynej pełnej kodyfikacji całej gałęzi prawa (obok Kodexu Cywilnego Królestwa Polskiego z 1825 r., stanwiącego, jak wiadomo, w istocie drobną nowelizację Kodeksu Napoleona ) jaka została przyjęta w Królestwie Polskim: Kodeksu Karzącego z roku 1818. Analiza stanowisk posłów i senatorów na Sejmie roku 1818 wprost potwierdziła, iż zarzut niekonstytucyjności tudzież argument o zgodności z Konstytucja był szeroko powoływany zarówno przez zwolenników jak i przez przeciwników projektu tej ustawy. Zgłoszone przez posłów poprawki dowodzą dążności posłów do możliwie dalekiego związania władzy sadowniczej normą prawnokarna w myśl rygorystycznie pojmowanej zasady nullum crimen sine lege certa i oświeceniowego ograniczania roli sędziego w sferze wykładni przepisów prawno-karnych.

Stad też skonstatować należy, iż zrodzona w Oświeceniu koncepcja hierarchicznej nadrzędności Konstytucji była już wtedy—przynajmniej wśród przedstawicieli polskiego Sejmu—rozpowszechniona. Uwidacznia to semantyka występująca w wypowiedziach posłów, którzy nierzadko odwołują się do „konstytucyjności” (zgodności z Konstytucją) proponowanego projektu, sematyka mająca przecież czytelną, późnooświeceniową prowenieniecję. Co więcej, analiza samego tekstu uchwalonego Kodeksu Karzącego dowodzi, iż stanowił on akt normatywny dostosowany do postanowień obowiązującej Konstytucji, a normy prawne, które mogłyby budzić wątpliwości jako sprzeczne z tym nadrzędnym aktem normatywnym występują absolutnie wyjątkowo.