Making Sense of Constitutional Monarchism in Post-Napoleonic France and Germany

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Making Sense of Constitutional Monarchism in Post-Napoleonic France and G Markus J. Prutsch ISBN: 9781137291653 DOI: 10.1057/9781137291653 Palgrave Macmillan Please respect intellectual property rights This material is copyright and its use is restricted by our standard site license terms and conditions (see palgraveconnect.com/pc/connect/info/terms_conditions.html). If you plan to copy, distribute or share in any format, including, for the avoidance of doubt, posting on websites, you need the express prior permission of Palgrave Macmillan. To request permission please contact [email protected].

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Making Sense of Constitutional Monarchism in Post-Napoleonic France and Germany

Transcript of Making Sense of Constitutional Monarchism in Post-Napoleonic France and Germany

Page 1: Making Sense of Constitutional Monarchism in Post-Napoleonic France and Germany

Making Sense of Constitutional Monarchism in Post-Napoleonic France and GermanyMarkus J. PrutschISBN: 9781137291653DOI: 10.1057/9781137291653Palgrave Macmillan

Please respect intellectual property rights

This material is copyright and its use is restricted by our standard site license terms and conditions (see palgraveconnect.com/pc/connect/info/terms_conditions.html). If you plan to copy, distribute or share in any format, including, for the avoidanceof doubt, posting on websites, you need the express prior permission of PalgraveMacmillan. To request permission please contact [email protected].

Page 2: Making Sense of Constitutional Monarchism in Post-Napoleonic France and Germany

Making Sense ofConstitutional Monarchismin Post-Napoleonic France

and Germany

Markus J. Prutsch

Page 3: Making Sense of Constitutional Monarchism in Post-Napoleonic France and Germany

Making Sense of Constitutional Monarchism in Post- Napoleonic France and Germany

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Also by Markus J. Prutsch

DIE CHARTE CONSTITUTIONNELLE LUDWIGS XVIII. IN DER KRISE VON 1830

FUNDAMENTALISMUSDas ‘Projekt der Moderne’ und die Politisierung des Religiösen

INTER- TRANS-SUPRA?Legal Relations and Power Structures in History (edited with Eliana Augusti and Norman Domeier)

LA NUOVA STORIA COSTITUZIONALE (editor)

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Making Sense of Constitutional Monarchism in Post- Napoleonic France and GermanyMarkus J. PrutschResearcher, European Parliament

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© Markus J. Prutsch 2013

All rights reserved. No reproduction, copy or transmission of thispublication may be made without written permission.

No portion of this publication may be reproduced, copied or transmittedsave with written permission or in accordance with the provisions of theCopyright, Designs and Patents Act 1988, or under the terms of any licencepermitting limited copying issued by the Copyright Licensing Agency,Saffron House, 6–10 Kirby Street, London EC1N 8TS.

Any person who does any unauthorized act in relation to this publicationmay be liable to criminal prosecution and civil claims for damages.

The author has asserted his right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988.

First published 2013 byPALGRAVE MACMILLAN

Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited,registered in England, company number 785998, of Houndmills, Basingstoke,Hampshire RG21 6XS.

Palgrave Macmillan in the US is a division of St Martin’s Press LLC,175 Fifth Avenue, New York, NY 10010.

Palgrave Macmillan is the global academic imprint of the above companiesand has companies and representatives throughout the world.

Palgrave® and Macmillan® are registered trademarks in the United States,the United Kingdom, Europe and other countries.

ISBN 978–0–230–31649–2

This book is printed on paper suitable for recycling and made from fullymanaged and sustained forest sources. Logging, pulping and manufacturingprocesses are expected to conform to the environmental regulations of thecountry of origin.

A catalogue record for this book is available from the British Library.

A catalog record for this book is available from the Library of Congress.

10 9 8 7 6 5 4 3 2 122 21 20 19 18 17 16 15 14 13

Printed and bound in Great Britain byCPI Antony Rowe, Chippenham and Eastbourne

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v

Contents

Diagram vii

Acknowledgements viii

1 Introduction 1 1.1 Subject and focus of research 1 1.2 Analytical approach 7 1.3 Outline of chapters 8

2 The Charte and Constitutional Monarchism 10 2.1 The prelude to the Charte 10

2.1.1 End of the Napoleonic empire andrestoration of the Bourbons 10

2.1.2 The Senatorial Constitution of 6 April 1814 15 2.2 The genesis of the Charte constitutionnelle 18

2.2.1 The return of the King and the Declaration of Saint-Ouen 18

2.2.2 The Constitutional Commission and the Enactment of the Charte 22

2.3 The provisions of the Charte constitutionnelle 25 2.4 Purloined revolution and political innovation 30 2.5 Conclusions 35

3 Constitutional Discourse and Political Reality in Post- Napoleonic Germany 39

3.1 Beginnings of constitutional reception 39 3.2 Constitutional debate and ‘models’ around 1815 44

3.2.1 The nature of constitutional discourse 44 3.2.2 Perception of revolutionary constitutionalism 48 3.2.3 Perception of the English Constitution 53 3.2.4 Perception of constitutional monarchism 56 3.2.5 Discourse on Landständische Verfassung 61

3.3 Political reality and the ruling class 65 3.4 Conclusions 69

4 Transfer and Reception: Bavaria and Baden as Case Studies 74 4.1 Framework for constitutionalisation 74

4.1.1 Bavaria 744.1.2 Baden 794.1.3 Conclusions 83

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4.2 Genesis of the Constitutions 844.2.1 Bavaria 844.2.2 Baden 934.2.3 Conclusions 101

4.3 Text of the Constitutions 1034.3.1 Bavaria 1034.3.2 Baden 1084.3.3 Conclusions 112

4.4 Interim results 114

5 Constitutional Practice: A Comparison 121 5.1 Bavaria 121 5.2 Baden 141 5.3 France 152 5.4 Conclusions 171

6 Constitutional Monarchism: Reflections in Political Thought 178 6.1 French perspectives 179 6.2 German perspectives 185 6.3 British perspectives 199 6.4 Conclusions 201

7 Results 205

Notes 222

Bibliography 293 Sources 293 Unprinted Sources 293 Printed Sources 294 Literature 306

Index 327

vi Contents

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vii

Diagram

2.1 The political system of the Charte constitutionnelle (1814) 36

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viii

Acknowledgements

According to Cicero, gratitude is not only the greatest of virtues but also the parent of all others. On this note, I would like to take this as an opportu-nity to say a collective ‘thank you’ to all those who have accompanied and very much enriched my work over the last few years, and without whom its completion would not have been possible.

I would again like to underline how very grateful I am to all those who actively supported me in the putting together of my Ph.D. thesis, which I submitted to the European University Institute, Florence in autumn 2009, and on the findings of which the present monograph is largely based. My special thanks go to Prof. Heinz- Gerhardt Haupt, my supervisor and dedi-cated mentor during my time in Florence and beyond, and to the staff of the archives and libraries with whom I had the pleasure of working.

For his most generous support in the drafting of this book I am greatly indebted to Prof. Volker Sellin, who has accompanied my research since my university studies at Heidelberg with his valuable advice and kind understanding, and whose exemplary sharp intellectual character together with his modest and unpretentious nature I hold in high esteem. I would like to express my sincere gratitude both to him and all my colleagues and friends with whom I have discussed this book project at different stages and whose comments have been taken on board in this manuscript. These include my fellow researchers in the EReRe project at the University of Helsinki, with whom I share the memory of having worked in a truly collegial working environment between 2009 and 2012, as well as Doris Spickenreuther, Urban Kirchler and Andrea Maier, who have sup-ported me in revising the manuscript.

Above all, my thanks go to Deborah Fö lsche- Forrow, who has not only been a true friend for many years but who has also contributed to the actual form of my work more than anyone else: cordial thanks for all the count-less hours spent on improving the manuscript and helping me understand the secrets of the English language, not least when facing the difficulties of translation!

It is to her that I would like to dedicate my humble work, and to my entire family, who have been of immeasurable inspiration and an indispensable mainstay for my studies: you have been a constant source of strength and encouragement throughout the years, and as simple as my Dankeschön may sound, it is all the more heartfelt.

Brussels, May 2012

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1

1Introduction

1.1 Subject and focus of research

The term ‘constitution’, nowadays commonplace in political language with all its shades of meaning, dates back primarily to the Ancient World. Until the beginning of seventeenth century, the term remained characterised by a rather narrow and non- normative impetus. In the course of the ongoing political changes in England during the seventeenth century, however, a crucial semantic change took place. It was the Glorious Revolution of 1688/1689 which speeded up the transformation process of ‘constitution’ into a normative and ideological notion, indicating specific immanent features. Increasingly, the criteria of right and wrong, just and unjust were established, and discourse on ‘constitution’ became a point of conflict. The era of ‘modern constitutionalism’ had finally arrived.

In taking up the traditional rhetoric of mixed government, arguing for a combination of monarchical, aristocratic and popular elements of rule, the ‘English Constitution’ became the point of reference for eighteenth century political philosophy, not to say a ‘sacred cow’. However, high regard for the English system of liberty was not only limited to the classical ideal of mixed government. In the course of the century, the actual practice of the British political system was underpinned by political theories stressing the ‘balance’ and ‘separation of powers’, namely the legislature, the executive and the judiciary, with Montesquieu’s De l’esprit des lois assuming a key role.1

Parallel to songs of praise for the English Constitution, however, a new political language developed: that of popular sovereignty and republicanism. These concepts prepared the way for revolutionising constitutional thought as practised during the American and French Revolution.2 In the course of these upheavals, which can indeed be classed as constitutional revolu-tions, driven by the desire to establish a ‘better’ political order, the ideas and benchmarks of ‘constitution’ were fundamentally changed. The notion that a constitution had to be a written document above normal legislation, and that this document had to be accompanied by guarantees of certain

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unalienable fundamental rights of the citizens gradually gained acceptance. Moreover, ‘constitution’ became popularised in two different ways: on the one hand, it became a legal document familiar to all and representing a secularised creed, to which, at least in theory, everyone could refer.3 Likewise, political systems were ‘democratised’ in that more people were involved in the political process inasmuch as ‘the will of the people’ or ‘the nation’ became the source of political power.

The most influential theoretical contribution in this regard was without a doubt Abbé Sieyès’ Qu’ est- ce que le Tiers État?, assuming the primordial authority of the nation, which was understood as a monolithic body, and outlining the idea of the nation as the pouvoir constituant.4 Sieyès’ concept, following on from Montesquieu’s idea that the legislative body had to be built upon représentation and not identité, as it did for Rousseau in his concept of the ‘general will’, was approved by the leading figures of the French Revolution in 1789 and became part of the first written French constitution in 1791. This constitution shattered the traditional notion of monarchical sovereignty and deprived the king of essential powers, but did at least preserve the monarchy as such. In the course of the Revolution, however, political and constitutional concepts became more radicalised. Argumentation in terms of ‘political effectiveness’ and ‘reign of virtue’ increasingly replaced the rhetoric of ‘law’, ‘legitimacy’ and ‘checks and balances’, resulting not least in authoritarian tendencies and culminating in Napoleonic constitutionalism.

The American and French Revolution saw not only broad constitutional innovations, but also powered sophisticated counter concepts. These concepts primarily highlighted the incalculability of revolutionary change and attending immanent dangers, which were contrasted with the positive prin-ciples of ‘continuity’ and ‘tradition’. Political conservatism was nevertheless far from uniform and either had to be formulated moderately, as Edmund Burke did, or in a more radical, reactionary form. Whereas Burke’s liberal conservatism emphasised the blessings of order, legal government and convention, therefore judging incremental reform as the only suitable form of political evolution, ‘autocratic conservatism’ as propagated by de Maistre and de Bonald praised the political and social order of the Ancien Régime, monarchical authority and religious- teleological arguments.

With this in mind, constitutional theory and thinking at the beginning of the nineteenth century can be described as being both fragmented and ambivalent. The spectrum of constitutional concepts that had evolved or even been put into practice ranged from ‘ultra-revolutionary’ to ‘ultra-reactionary’ and from ‘radical-democratic’ to ‘radical-autocratic’, and a crucial question was whether these contradictory standpoints could be united in some way or other.

The need for reconciliation intensified when French hegemony in Europe came to an end. Even though the allied powers declared a victory over

2 Making Sense of Constitutional Monarchism

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Introduction 3

the Revolution and its principles in 1814, it was impossible to ignore the relevance of the revolutionary heritage in general and that of ‘constitu-tion’ in particular. ‘The French Revolution will travel around the world’, Mirabeau had once memorably declared. Indeed, the French Revolution as a pan- European phenomenon had a lasting effect even after its immediate energy had subsided. Perhaps the main challenge of the time was how to reconcile European monarchs’ claim to preserve their sovereignty with post- revolutionary societies’ expectations of both a constitutional state and maintaining the political innovations generated by the Revolution and the Napoleonic Regime: innovations which had been expressed but not necessarily implemented in Napoleonic Europe. It was widely felt that the Spanish approach of rigid neo- absolutism was not a long- term solution.5 In comparison, the example of the French Restoration under Louis XVIII, who was willing to provide constitutional guarantees to achieve a lasting settlement, seemed a much more appropriate and reasonable solution.

It therefore comes as no surprise that the Bourbon Restoration project in 1814 was, as the Revolution itself had been, an act of European importance; an act which might now serve as a key to overcoming the revolutionary epoch permanently. The Charte constitutionnelle (‘Constitutional Charter’) played a pivotal role in this context: it was the foundation stone of the new regime and put forward possible solutions to reconciling the diverging aspirations of rulers and post- revolutionary society. Indeed, the new monarchical- constitutional system made the monarch the dominant political power and declared him the sole holder of the pouvoir constituant, yet at the same time restricted the sovereign by a written constitution providing civil liberties and allowing citizens to partake in the political and legislative process. For this reason, the ‘monarchical constitutionalism’ of the French Charte, which might justifiably also be termed ‘constitutional monarchism’,6 has frequently been considered to be a model for post- Napoleonic Europe and Germany7 in particular.

Indeed, there are good reasons to suppose that the Charte played a decisive ‘model-role’. At the end of French supremacy, political expectations were running high in the German states with the governments of these states seeking to suppress any national movement through top- down policies. However, the success of any such policies depended upon the govern-ments’ ability to ‘trade’ constitutional guarantees, or at least promises of the same, with the refusal to make concessions to the national movement. The German Federal Act, adopted 8 June 1815, thus pledged landständische constitutions for all the member states of the German Confederation.8 The Federal Act went hand in hand with the existing desire to set up consti-tutions in the federal states, particularly in Southern Germany, namely Bavaria, Württemberg, Baden and Hesse- Darmstadt. Created out of formerly independent territories and free cities, the task of administrative reform had already been undertaken during the Confederation of the Rhine. However,

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4 Making Sense of Constitutional Monarchism

political integration within these ‘state absolutistic’9 states still needed to be addressed. The promulgation of constitutions to engender patriotism and weld together different social groups was thus an obvious solution for the ruling class.

The situation of the German rulers was akin to that of Louis XVIII in France following his return from exile, in that their claim to full sovereignty had to be reconciled with their subjects’ aspirations for legal guarantees and political participation. Consequently, ‘constitutional monarchism’ as expressed in the Charte constitutionnelle seemed to be the most natural choice: a representative constitutional system which would at the same time retain many of the monarch’s traditional rights.10 However, the idea of the Charte as a ‘model’ poses a number of questions:

How innovative was this model compared to prior constitutions?What de facto role and function did the Charte have in constitution- making processes?Who were the agents of constitutional transfer or reception?To what extent were the constitutional realities in France and the Southern German states comparable?

In actual fact, the Charte was not the only tangible model at that time. The English11 common law constitutional system which had inspired Montesquieu’s work, the Spanish Cádiz Constitution of 1812, or the Polish Constitution of 1815 represented other possible points of refer-ence. Furthermore, the American Constitution of 1787 and the first French Constitution of 1791, even though built upon the principle of the sover-eignty of the people, were among the ‘prototypes’ of the period, and it was not out of the question that they could be inspirational with regard to the concrete form of certain political institutions or in defining fundamental citizens’ rights.

Moreover, the power- political, socio- economic and political- cultural circumstances were unique when the Bourbons returned to power in 1814. France had been defeated at the military level and was on the verge of economic collapse. The reason for changing the existing political system was chiefly because Napoleon had brought discredit on his regime by refusing to make peace despite repeated attempts by the Allies and because he had placed painful burdens on the country. At the same time, the Restoration regime was confronted with a society torn apart by reciprocal distrust; the most obvious being between those who sought to bring back the order of the Ancien Régime and those who promoted a society based on the principles of the Revolution. Furthermore, with the relatively long and, indeed, eventful history of written constitutions in France, any new con-stitutional project would automatically be compared with everything that had gone before.

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Introduction 5

These factors were not present, or at least not to the same extent, in the Southern German states. They had their own particular challenges to contend with, chiefly achieving political and financial consolidation,12 and adapting the existing absolutistic regime to the demands of the time. One may therefore surmise that the French ‘model’ of constitutionalisation could not be transferred one- to- one to Southern Germany. Linked with the argument that there were differing contexts is the fact that the Southern German states had their own pre- constitutional experiences and traditions of representation which had to be considered, especially in how far and in what way the former Landstände (‘Assemblies of Estates’) should be involved in a new system. This factor of ‘heritage’ became increasingly important amid an atmosphere of growing nationalism and deepening reservations against foreign influences.

Taking the aforesaid into account, the objectives of this enquiry are essentially concerned with promoting a clearer understanding of the course, form and intensity of constitutional transfer by analysing the transnational impact (or perhaps ‘non-impact’) of Charte- constitutionalism on what is generally referred to as ‘Southern German constitutionalism’. Even though the Southern German states weighed lightly in the European balance of power, their history is singularly interesting, not least because they were the first territorial states in Germany which were granted a constitution after 1814. Developments there thus played a pivotal role for further constitu-tionalisation and other political processes throughout Germany during the nineteenth century.

While a study encompassing all the Southern German states would be desirable, this enquiry does not set out to fulfil such a task. What it does do is to take an in- depth look at a limited number of research cases by focusing on the two examples of Bavaria and Baden, which became, so to speak, the ‘forerunners of forerunners’. Although Württemberg, and sometimes Hesse- Darmstadt, are also considered to be an ‘integral part’ of early Southern German constitutionalism, they will not be dealt with in this study. The reason for this is not least that Württemberg is by far the best researched of all the Southern German states due to the conflict- ridden nature of its constitutionalisation process.13 It is against this backdrop that the singula rity of the Württemberg case has, at least partially, been acknow-ledged in research to date. This singularity is most obviously manifest in that the Constitution of 1819, as too the Constitution of Hesse- Darmstadt one year later,14 was not imposed by the crown as the Bavarian and Badenese constitutional documents of 1818 had been, but agreed upon between monarch and the Landstände. One may not assume that such obvious dif-ferences in the genesis of the constitutions necessarily imply that foreign influence and the Charte in particular played a fundamentally diverse role. Such differences do nevertheless remind us of the danger of blanket state-ments and a generalising approach to history. Hence, the choice of case

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6 Making Sense of Constitutional Monarchism

studies also hopes to examine whether and to what extent considering the constitutionalisation of Bavaria and Baden as basically identical reflects historical reality. This monograph should, therefore, not be regarded as a study of the phenomenon of Southern German constitutionalism as a whole, but as a contribution towards a more sophisticated assessment of the manifold nature of its component parts.

We set out to follow the tradition of enquiry on ‘intellectual exchange’15 by asking whether and how constitutional ideas and institutions travel beyond language and culture, and by investigating the ways individuals adopt and reshape existing notions and concepts, perhaps to create something new. While this enquiry examines the structure and extent of German adoption of French and/or other foreign constitutional models, it does not confine itself to the element of ‘transfer’. It combines the ‘history of ideas’ with ‘political history’, and considers constitutional concepts and public debate together with the ‘political machinery’ and Realpolitik. In short, the main objectives are to:

I. examine the genesis and the essential characteristics of post- Napoleonic ‘constitutional monarchism’;

II. ascertain the meaning and exemplary effect of the Charte constitution-nelle for early (Southern) German constitutionalism compared to other potential models;

III. identify parallels and differences, not least with regard to constitutional reality; and to

IV. discuss the impact of constitutional monarchism in a broader European context both in terms of politics and political theory.

Overall, this enquiry hopes to contribute to a better understanding of constitu tional monarchism within the process of political democratisa-tion and liberalisation in the Western world: a process which started in the seventeenth and eighteenth century and was accompanied by a distinct ‘crisis of monarchy’.

Underlying these objectives, the three essential working hypotheses put forward are as follows:

1. Constitutional monarchism, as put into practice by the French Charte, was a genuine innovation, representing a fragile but appropriate and promising response to the demands of the post- Napoleonic Age.

2. Charte- constitutionalism, despite the singularity of its genesis, was a universally applicable export product, which in different countries implied similar challenges for constitutional practice.

3. Monarchical- constitutional systems were open to reform and evolution-ary constitutional development, provided that the monarchical power, as the leading political force, preserved both the ability and the will to reform its policies and politics.

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1.2 Analytical approach

The main challenge here is to combine transfer research with a structural comparative approach:16 the former in the light of the reception of French or other constitutional models in Southern Germany, the latter with regard to parallels and differences between the three cases: France, Bavaria and Baden.

It can be argued that any comparison should focus on the interconnection between two or more units of analysis insofar as there is continuous reciprocal influence at least between societies of the same cultural background and in the same historical epoch.17 Failure to take this into account would mean creating highly artificial units of comparison and, likewise, drawing pseudo or even false conclusions. Conversely, the tools of transfer research allow scholars to open up a correlation between units of academic analysis and thus make a contribution towards explaining the units being compared. The study of transfer requires the comparative method as the only method which allows the historian to identify and evaluate (inter-)cultural transfers, by comparing the subject matter in both old and new contexts, contrasting the social backgrounds involved, and comparing the interpretation of a phenomenon in the country of origin with that in the country of reception. This idea of a bridgehead concept applies particularly but not exclusively to constitutional history, in that modern constitutionalism in general can only be fully understood when treated as a phenomenon sharing essential characteristics in different national contexts. Understanding the ‘transcen-dentality’ of universal constitutional principles, such as ‘sovereignty’ or ‘representation’, and specific national variations and interpretations of such principles is vital when using the comparative method, given the fact that the collective process of ‘constitutionalisation’, seemingly paradoxical, was to become one of the main sources for national self- images and identities in the course of time.18

The second key challenge in terms of methodology is to set this enquiry in the context of ‘new political history’ and ‘new constitutional history’ respectively.19 Rather than follow older traditions of the history of constitu-tional law, which focused on the normative dimension of constitutions and took only specific moments and actors into account, the objective here is to apply a broader notion of ‘constitution’. A ‘new constitutional history’20 has to be seen and read in a wider sense as a history of political and social life around – and within – constitutions. This understanding encompasses the constitutional reality as well as the prevailing socio- economic and cultural conditions of the time, both expanding the meaning of ‘constitutional actor’ and embedding such history in a wider context. Perhaps the greatest advantage of setting constitutional history in a broader framework is its proximity to other cultural and social sciences. This being the case, my enquiry benefits from well- established methodological tools and concepts used in political science, cultural history, semantics and sociology.

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In acknowledging the ‘universality’ of the ‘project of modernity’ in general and that of constitutionalism in particular, the essential aim here is to understand ‘constitution’ and ‘constitutionalism’ as an integral, decisive and highly complex element of modern social and political life: an interpretation that goes beyond reducing constitutions to mere expressions of juridical codification, and begs broader transnational as well as inter-disciplinary contexts be taken into account.

1.3 Outline of chapters

Based on the aforementioned research interests, this study is outlined as follows. Chapter 2 deals with the French Constitutional Charter of 1814 and the (French) system of constitutional monarchism in an attempt to fuse revolutionary heritage and pre- revolutionary concepts of monarchical sovereignty and authority. We will first look at the preconditions for setting up a monarchical- constitutional system in France (Section 2.1), followed by a description of the drawing up of the French Constitution of 1814 (Section 2.2), its concrete provisions (Section 2.3), and an evaluation of the ‘innovative potential’ of the Charte and the Restoration project in general (Section 2.4).

Chapter 3 will then analyse the state of constitutional discourse and political reality in post- Napoleonic Germany. The beginnings and deter-mining elements of German constitutional debate and reception during the revolutionary and Napoleonic period are explored (Section 3.1). As a second step, the intellectual debate around 1815 and the available ‘models’ of the time are examined (Section 3.2) and contrasted with the political reality and the role of the ruling class (Section 3.3): factors which essentially precon-figured constitutionalisation processes and also the scope of constitutional takeovers.

In Chapter 4, the ‘practical dimensions’ of constitutional transfer and reception are investigated, namely by taking Bavaria and Baden as case studies. First, the political, economic and legal basis for the constitution-alisation of these countries is analysed (Section 4.1). Particular attention is then paid to the leading figures involved in drawing up these two constitu-tions and the role (foreign) models played during this process (Section 4.2). The actual texts of the two Verfassungs- Urkunden are looked at in detail to determine their ‘originality’ and/or ‘similarity’ compared to previous or existing constitutions (Section 4.3). The chapter concludes with some interim results (Section 4.4).

Chapter 5 turns to the actual practice of monarchical- constitutional government after 1814/1818 by comparing Bavarian (Section 5.1) and Badenese (Section 5.2) with French (Section 5.3) constitutional life in the Restoration period. Focus here is on both the domestic and foreign percep-tion of, and actual (political) reactions to, the new constitutions, the power struggles between monarch and parliament, the development of civil and

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Introduction 9

fundamental rights, the establishment of a ‘constitutional culture’, and the role ‘external factors’ (for example, the German Confederation in the case of Bavaria and Baden) played in constitutional practice.

Some of the politico- theoretical repercussions triggered by the constitu-tional documents and the practice of (French and Southern German) constitutional monarchism after 1814 are evaluated in Chapter 6, namely by concentrating on France (Section 6.1), Germany (Section 6.2) and Great Britain (Section 6.3). The intention here is not to provide an exhaustive analysis but to investigate how intensely ‘constitutional monarchism’ was considered and interpreted in different national contexts.

The results of the study are summarised and evaluated in Chapter 7, which sets the findings in a broader historical context, and offers a possible outlook on long- term developments in European (monarchical) constitutionalism.

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10

2The Charte and Constitutional Monarchism

In 1814, the collapse of the Napoleonic system laid the foundations for the fundamental change of the political order in France, and it is the very char-acter of this change which is crucial for understanding the Restoration and its constitutional system. Therefore, it might be useful to take a closer look at the circumstances of Napoleon’s fall and the restoration of the Bourbon monarchy before actually turning to the Charte constitutionnelle as the legal basis and core of the Restoration. This is with a view to amalgamate existing research and demonstrate the eminent ‘historicity’ of the Charte,1 without which its politico- theoretical impetus cannot be fully comprehended.

2.1 The prelude to the Charte

2.1.1 End of the Napoleonic empire and restoration of the Bourbons

After 15 years in power, Napoleon I was forced to declare his abdication on 6 April 1814, due to the overwhelming superiority of the allied powers, omnipresent war- weariness and the French Senate depriving the Emperor of his authority. However, Napoleon’s renunciation of power was anything but the inevitable result of a lost military conflict which had started with the fatal Russian Campaign in 1812. Even a few weeks before his actual downfall, Napoleon could have changed the course of events.

In the Treaty of Teplitz (9 September 1813) Russia, Prussia and Austria had agreed that the French Emperor had to be driven back over the Rhine in order to free Europe from French hegemony, to enable the renewal of a European balance of power and hence to bring peace to Europe. This suggested, how-ever, that France was not to be humiliated, but be preserved as a power: a weakening of the country through excessive territorial claims and the impo-sition of high reparations had to be prevented at all costs. In the same vein, the prevailing opinion was that it was not up to the military opponents of France to take away the country’s right to decide its own political future.2

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The Charte and Constitutional Monarchism 11

Clearly, the coalition did not wish to wage war merely in order to have pre- revolutionary conditions and the former dynasty restored.

However, the sheer doggedness with which Napoleon tried to preserve the ‘natural border’ of France – the Rhine, the Alps and the Pyrenees – and his determination to dictate peace terms at all cost, not only meant that he missed golden opportunities in reaching some form of reasonable peace agreement, but also pushed the Allies to end the war by changing the ruling house in France. The die was cast after the Congress of Châtillon, in which the allied powers had repeated their offer to respect French borders as they had been in 1792,3 had to be broken off in the night from the 23 to the 24 March 1814 having achieved nothing.4

On 24 March the decision to advance on Paris, which had until then been deferred, was taken,5 while a declaration of the allied powers released on 25 March was to prepare the French nation for the deposition of Napoleon.6 Although there was as yet no clear concept of the future political system in France, it was commonly recognised that in order to achieve peace Napoleon had to be removed from power. For that reason the Allies took up negotia-tions with the oppositional powers in Paris immediately after the fall of the capital on 31 March. That very same day Tsar Alexander I met Talleyrand, Prince de Bénévent, Napoleon’s former foreign minister and head of the inner- French opposition,7 to discuss the modalities of a dynastic change.

They agreed that a constitutional body of the Empire should decide the future political system of France in the name of the nation, primarily to avoid any suspicion of foreign interference. This was to be the Sénat con-servateur, which had practically been excluded from the political process since 1804, but still held significant constitutional functions such as that of ‘guarantor of the constitution’.8 A public ballot to democratise the whole procedure was not an option: one, because such a ballot could only be carried out after the fall of the old regime, and, two, because the Senate acting independently guaranteed a quick decision which would be in line with the interest of the Allies.

In his memoirs, Talleyrand makes it clear that he wanted to re- instate the Bourbons, stressing the fact that the Count of Provence, later Louis XVIII, was the ‘legitimate king of France’.9 ‘Legitimate’ was nevertheless not to be understood as ‘legitimacy of the ruler, but the legitimacy of the candidate, as compared to other candidates who had likewise been considered’.10 The Senate was actually aiming at nothing more than to declare Napoleon’s powers forfeit and to prepare the ground for a new regime: a procedure which would not have been necessary if Napoleon had been seen as a priori usurper and illegitimate ruler.11 The belief and convic-tion that the former dynasty would be more readily accepted among the people than other candidates tipped the scale in favour of the ‘Bourbon alternative’.12 However, Talleyrand and Tsar Alexander I did not intend to re- establish the pre- revolutionary prerogatives of the Bourbons. Rather than

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12 Making Sense of Constitutional Monarchism

a restoration of the Ancien Régime, they envisaged a new legal framework as a basis for the return of the king, which would contain constitutional guarantees to safeguard the achievements of the Revolution. Arguably, the main achievement was the principle of the ‘sovereignty of the nation’,13 and the Bourbons could only be ‘recalled’ to the French throne by referring to that very sovereignty. The ultimate goal was the creation of a constitutional state which would in fact restrict the power of the monarch, guarantee fundamental rights for the citizens and give the legislative body primacy in the new political system. Thus, even the Tsar, who stuck to autocratic government in his own Empire, was convinced that in France a return to the pre- revolutionary social and political order was neither desirable nor feasible. Alexander I regarded the ‘sovereign nation’ as a given fact and was hence willing to accept revolutionary constitutionalism and a ‘liberal’ constitutional system in France.

After Talleyrand and Alexander I, as representative of the coalition, had agreed on the essentials of the regime change, the next step was to jus-tify the deposition of Napoleon. This was vital if a state of civil war was to be avoided. The Tsar released a public proclamation on the evening of 31 March, declaring that the allied powers were not willing to enter into any further negotiations with Napoleon or any member of his family.14 The French nation was, therefore, literally forced to choose between continued war with the Emperor or peace without: not a difficult choice considering the country was under occupation and Napoleon’s military clout was by now on the wane. Moreover, France was promised favourable peace terms in the proclamation, claiming that without Napoleon, the Allies would have no need to take protective measures against Napoleon’s expansionist endeavours.15 At the very end of the proclamation the French Senate was requested to appoint a Provisional Government, designed to take over the management of administrative tasks and to prepare a constitution ‘suiting the people’. The proclamation was literally a public appeal for the people to overthrow the Emperor: an overthrow which to effect would be solely a French matter.

After the ball had been passed back to the first parliamentary chamber, Talleyrand took the initiative and summoned the Senate for the afternoon of 1 April 1814. The challenge was to find a formula which justified the absolute need for a change of power without fundamentally questioning the principles of the Revolution and Napoleon’s feats. The Senate’s rebellion, likely to be interpreted as high treason, had to be presented as a legal act undertaken for the benefit of the nation. In his inaugural address, Talleyrand thus appealed to the patriotism of the senators and their will to save the country.16 His admonitions had a strong impact, and in the same session the Senate installed an interim government entrusted with drawing up a new constitution.17 Furthermore, a number of guiding principles for the new constitution were passed: both existing parliamentary chambers, that is the

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The Charte and Constitutional Monarchism 13

Sénat and the Corps législatif, should be preserved; officers and soldiers keep their ranks and pension claims; the national debt and the existing domaines nationaux were to be guaranteed; freedom of opinion and worship as well as freedom of the press had to be granted.

This list of principles, aiming essentially at preserving institutional conti-nuity by strengthening civil rights, represented the minimum requirements for the Senate to take part in a regime change. Preserving the existing constitutional bodies on which Talleyrand’s concept of a ‘legal revolution’18 based itself was in line with the logic of the procedure. Tackling the problem of the army was born from the necessity to obliterate the loyalty of this power factor to Napoleon, while recognising the national debt was intended to win over the huge number of creditors for a political change. Similar considerations were the driving force behind the demand for property guarantees. Guaranteeing irrevocable political and civil rights expressed the will to preserve the achievements of the revolutionary and Napoleonic Age, and was considered a prerequisite for domestic reconciliation in France.

On 2 April, the Senate declared the end of Napoleon’s reign. On 3 April, a corresponding decree was released,19 reflecting a continuation of the tradition of ‘dethronements’ in the Western World: the deposition of Philip II by the insurgent Netherlands in 1581, the Bill of Rights in 168820 and the American Declaration of Independence in 1776. Similarly, the Senate’s decree took a defensive line of argumentation: it was not because Napoleon had seized power unlawfully, but because he had exercised his preroga-tive of power irresponsibly that he had lost his claim to rule. Right at the beginning of the decree, Napoleon was blamed for having ‘destroyed’ the former ‘treaty’ between him and the French people.21 Evidence of the degeneration of his reign was enumerated in a long list of constitutional breaches, among them the illegal imposition of taxes, declaring and waging war without authorisation by the legislative body, the qualification of the constitutional powers, the destruction of the independent judiciary and the suspension of the freedom of the press.22 Furthermore, Napoleon’s refusal to make peace for the nation’s good was condemned. The Senate concluded that due to these illegal and indeed immoral transgressions ‘the imperial government established by the sé natus- consulte of 28 Floréal Year XII [18 May 1804; MJP] has ceased to exist’.23 This quite plainly suggested that Napoleon had lost his throne through his own fault, and that deposition was merely a final, formal act, not actually required. The decree maintained that the Emperor had become estranged from the French nation: ‘the express wish of all Frenchmen calls for an order of things of which the first result may be the re- establishment of the general peace, and which may be also the epoch of a solemn reconciliation among all the states of the great European family’.24 Stressing the sovereignty of the people was intended to gain further support for the dethronement of the Emperor, which was made explicit in the second part of the decree.

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The first paragraph of the Senate’s resolution declared that Napoleon Bonaparte and his successors had lost every legitimate claim to the throne. This declaration was based on sheer political reasoning and not on any formal legal procedure, which would have suggested that only the monarch himself, but not his heirs were to be deposed.25 The intention was not only to avoid any kind of ‘hidden reign’ by Napoleon himself, but to lay the foundations for the restoration of the Bourbon monarchy. The second paragraph therefore released the French people in general and the armed forces in particular from the duty of allegiance towards Napoleon.26 The last paragraph finally ordered the immediate proclamation of the decree throughout the country.27

The Corps législatif complied with the Senate’s request to support the deposition of the Emperor that very same day.28 The legislative bodies were unanimous, but the nation and the army now had to be won over for the regime change. The chances looked good: the Emperor’s popularity had been severely damaged by the ongoing war, particularly because the popula-tion had had to bear onerous burdens. Heavy casualties forced Napoleon to enlist more and more troops, and taxes levied on the people rose steadily due to military necessity and there being no alternative source of revenue. At the same time, the loss of factories close to the border and inability to export goods aggravated an already deep economic crisis.29 The more dramatic the situation became, the more explicit the call for peace was to be heard.

The desire for peace was likewise taken up by the Provisional Government’s decree of 4 April 1814, which addressed the French nation in powerful rhetoric and repeated the arguments for the deposition of Napoleon.30 The decree stressed the total failure of the Emperor’s politics: he had been neither able to reign in the interest of the French nation, nor even in his own interest. His barbarian- like tyranny had come to an end due to the allied powers, which ‘speak only the language of honour, justice and humanity’. Now, the country’s wounds were to be healed by restoring the ‘true monarchy’:

In the shelter of a paternal throne, may spent agriculture flourish again; may trade, burdened with obstacles, regain its freedom; may youth cease to be culled by arms before having the strength to take them up; may the order of nature no longer be disturbed; and may the old man hope to die before his children!31

This decree had the desired effect, especially on the army, whose tradi-tional loyalty had suffered in the previous months. Eventually, it was the commanding officers who finalised Napoleon’s dethronement, in that Napoleon’s generals refused to obey his foolhardy command to recapture Paris on 4 April.32 Napoleon’s authority, the basis for the imperial system, had been undermined. When Marshal Marmont’s VI Corps defected to the

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Allies on the evening of 4 April, Napoleon’s last hopes of getting the Allies to agree to the succession of his son under the regency of the Empress were shattered. Two days later, on 6 April 1814, Napoleon I formally renounced the throne for himself and his heirs.33

2.1.2 The Senatorial Constitution of 6 April 1814

Napoleon’s abdication paved the way for the restoration of the Bourbon monarchy. The terms of the king’s return had already been drawn up by the Senate. The very same day Napoleon signed his abdication, the Senate passed an ambitious draft for the future constitution of France. This draft was to become known as the ‘Senatorial Constitution’.

As early as 3 April, the members of the new Provisional Government together with some influential members of the Senate had gathered in Talleyrand’s home to debate a new French constitution.34 There was no time to lose since the state administration had ceased to function after Napoleon’s dethronement and it was not yet known whether there might not be another authority making claims to power. Therefore, the constitu-tional draft, based on the principles which had been set down on 1 April, had to be written at short notice. The outline was sent to the Senate on 5 April and passed the day after with some marginal changes.35 On 7 April the Corps législatif agreed with no reservations whatsoever.

The new Constitution,36 encompassing 29 articles, was inspired by the French constitutions of 1791 and 1795, but took the British constitutional system as a model, too.37 Thus, the Senatorial Constitution fused elements of the established ‘English Constitution’ with American- French revolution-ary constitutionalism. The first article of the Senatorial Constitution laid down the classical principle of a hereditary monarchy based on male primo-geniture: ‘The French government is monarchical and hereditary from male to male, by order of primogeniture.’ Article two, however, unquestionably upheld the principle that popular sovereignty was to be safeguarded at all costs. Thus, the Bourbon monarchy was to be restored in line with the free will of the French nation as ultimate legislator: ‘2. The French people freely summons to the throne of France Louis- Stanislas- Xavier of France, brother of the last king, and after him the other members of the house of Bourbon, in the old order.’ In line with the principle of the sovereign nation, the con-cluding article of the draft laid down that the constitution was to be upheld by a popular vote. Moreover, Louis- Stanislas- Xavier was to be proclaimed king only after he had solemnly sworn to preserve, protect and defend the Constitution:

29. The present constitution shall be submitted for the acceptance of the French people in the form which shall be regulated. Louis- Stanislas- Xavier shall be proclaimed King of the French, as soon as he shall have sworn and signed by an act declaring: I accept the constitution; I swear to observe

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it and cause it to be observed. This oath shall be reiterated in the solemn ceremony by which he shall receive the oath of fidelity of the French.

Using Louis’ common name in the Constitution instead of the title he laid claim to himself – Louis XVIII – expressed the status which the Senate was willing to grant him. In outlining that the candidate could assume his function only after taking his constitutional oath, the draft also stressed the contractual character of the Constitution and the reciprocal commitment of both ruler and subjects.38

The desire to ‘preserve’ the heritage of the Revolution and the Empire, to signal political- societal continuity and to pre- empt any reactionary measures by the old elite was expressed clearly in the draft. The Constitution granted the nobility their right to preserve their titles, and maintained the Legion of Honour with all its privileges (Art. 3). Moreover, equality of proportion in taxation was declared (Art. 15), soldiers, active or retired, were entitled to keep titles, honours and pensions (Art. 20), the national debt was acknowl-edged (Art. 24), and unrestricted admission to all public posts was guaranteed (Art. 27). Likewise, the existing legal order would remain in effect (Art. 28). A number of other fundamental rights were also granted, though they were no longer part of a specific charter as in the Constitutions of 1791, 1793 and 1795, including freedom of worship and conscience (Art. 22), freedom of the press (Art. 23) and freedom of opinion and expression (Art. 25).

The Constitution’s liberal- conservative character is also expressed in those articles determining the structure of the political system, which was basic-ally in the tradition of Montesquieu’s concept of a separation of powers with checks and balances. Whereas the executive was the domain of the king alone (Art. 4), the legislature was divided between the two chambers of parliament and the monarch, who each had equal right of initiative in the legislation; the royal assent was mandatory for the passing of any law (Art. 5). In this respect, the English model was of a much greater influence than the first French Constitution of 1791: while the latter had set up a unicameral system and granted the king power of delay only, the Senatorial Constitution copied the English bicameral system including the full veto of the king in the legislative process.

Direct intervention by the monarch in parliamentary activities was never-theless strictly limited. The delegates of the Corps législatif, whose term of office was five years, were to be elected by the constituencies direct (Art. 9). The sessions of the chamber were basically public (Art. 11). The king, in contrast to the Constitution of 1791,39 gained the right to dissolve the Corps législatif, but in such a case a new chamber had to be elected and convened within three months (Art. 10). The Senate, the Corps législatif, the electoral bodies and the cantonal assemblies had the right to choose their own chair-men (Art. 12). At the same time, the immunity of all members of parliament was guaranteed.

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A fundamental ‘check’ in the political system was the regulation that ministers, who could be a member of either of the two chambers (Art. 14), were accountable for their political actions:

21. […] All acts of the Government are signed by a minister. The ministers are responsible for everything which these acts may contain which is inju-rious to the laws, to public and private liberty, and to the rights of citizens.

For the second time in French history, an attempt was made to introduce a parliamentary system.40 The responsibility of ministers was primarily a legal one and not to be interpreted as full ‘political responsibility’, which would include parliament’s right to enforce the resignation of the government in the event of a vote of no confidence. Nevertheless, an important step in the parliamentarisation of the political system had been taken.41

Regarding the judiciary, its independence and the upholding of the existing judicial system were codified. Additionally, the institution of court by jury and public access to trials was maintained, while expropriation was abolished (Art. 17 and 18).

Many of these regulations provoked discussion, above all regarding the two articles on the limitation of monarchical power, at which royalists were expected to level harsh criticism. The main cause for discussion and criti-cism, however, was Article Six, which laid down the Senate’s own political role and rights. The number of senators was determined to be no less than 150 and no more than 200, and the hereditary character of senatorial dignity was sanctioned. Moreover, it was laid down that all present senators would remain in office and, more significantly, keep their allocations and incomes from the so- called sénatoreries, whereas new senators appointed by the king would not receive such incomes. These provisions could only be interpreted as sheer egotism.42

Pamphlets condemning the Senate’s ‘self-service’ mentality followed hot on the heels of the release of the Senatorial Constitution. The Senate was suspected of having deposed Napoleon and setting up a new constitution not out of concern for the nation’s good, but purely out of self- interest. Such distrust made the whole constitutional draft suspicious:

The entire constitution, despite its merits, was disgraced and condemned by the article that so scandalously consolidated and improved the personal situation of the old Senators. Instead of the work, only the worker was visible; one saw men who, for the most part, after having sold the abjura-tion of their revolutionary principles to despotism at a high price, hoped to sell their new defection at an even higher price to the monarchy.43

Contemporary writing of the period argued exactly along this line and rejected the Senate’s right to set up a new constitution, particularly since the

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members of the first chamber had been a keystone of the imperial system for a long time and the Senate, too, was at least partly responsible for those breaches of law Napoleon was blamed for having committed. The end of Napoleon, they argued, likewise marked the end of the Senate’s right to exist.44

This severe criticism of the Senate contributed towards strengthening those who considered the existing draft with all its liberal compromises to be intolerable, and wanted a return to the Ancien Régime. Nonetheless, for the Provisional Government and especially Talleyrand there was still a possi-bility to enact the constitutional draft, not least because a formal statement of Louis as the pretender to the throne was still missing.

2.2 The genesis of the Charte constitutionnelle

2.2.1 The return of the King and the Declaration of Saint-Ouen

Born as Louis- Stanislas- Xavier on 17 November 1755 in Versailles, the Comte de Provence made claims to the throne as early as 1795 after the execution of his older brother Louis XVI and the death of the Dauphin of France (Louis XVII).45 However, for the time being his title of king was of a purely theoretical nature and Louis had to undergo the fate of an émigré. At the time of Napoleon’s deposition, Louis was in England, where he had been living since 1807.46

Louis’ background and his assuming to be legitimate King of France made him a reactionary personality fundamentally opposing the Revolution and its principles. However, in exile he gave up a lot of his reactionary political radicalism, and ‘moderation’ became increasingly Louis’ guiding principle from 1796 onwards. After he had given up the rhetoric of ‘retribution’ and ‘punishment’ in the Declaration of Blankenburg (1797), he promised just two years later to preserve the administrative and judicial structures gener-ated by the Revolution in the event of a Bourbon Restoration. In 1800 Louis underlined his will to abandon any idea of reinstating the constitutional order of the Ancien Régime, and in 1805 he vowed to accept both the new post- revolutionary realities and the will of the nation, promising to grant a general amnesty to all those who did not oppose the restoration of the monarchy. This avowal was repeated on 1 February 1813, when the end of Napoleonic hegemony in Europe was dawning.47

In April 1814 the chance to return to France and re- claim the French throne finally seemed to be within Louis’ reach, and the main question was how the Comte de Provence would return and which position he would hold with regard to the Senatorial Constitution. Due to his poor health, however, Louis was not able to leave England immediately, and so his younger brother Charles, the Comte d’Artois, was sent ahead to Paris, where he arrived on 12 April 1814. The fact that Charles returned with the title of a lieutenant général du royaume, traditionally indicating

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a representative of the French king until his own return,48 confirmed that the Bourbon dynasty was not willing to give up their hereditary title to the French throne. The Senate’s chance of getting Louis to agree to his own restoration on their terms, that is by affirming the Constitution by oath and by accepting popular sovereignty, shrank even more when it became clear that the Comte d’Artois had been rapturously received by the popula-tion of Paris.49 Furthermore, it was uncertain whether the Senate could rely on the armed forces, who might prefer to demonstrate their solidarity with the Bourbons.50 The dynasty obviously still had a considerable degree of authority in the nation, irrespective of the role the Senate was willing to concede Louis and perhaps even regardless of whether Louis would accept the Senatorial Constitution or not.

For the time being the Senate eluded the obstacles of acknowledging the authority Louis had conferred on his brother and hence abandoning the claim to represent the sovereign nation by appointing the Comte d’Artois lieutenant général du royaume itself on 14 April.51 De facto, however, acknowledging Charles as the representative of the King marked a bitter defeat for the Senate. In symbolic terms this defeat was expressed by the fact that the Provisional Government ceased its activities and the country’s political centre shifted to the Tuileries Palace.52 A declaration of the Comte d’Artois, issued on the same day at the reception for the senators in Charles’ new residence, had a sobering effect on the Senate, too, insofar as no direct remarks were made to the future of the constitutional project or the source of royal legitimacy. Charles merely emphasised the fact that he had taken note of the Senatorial Constitution, but that he had not been authorised by his brother to accept the text, even though he imagined that the ‘basic principles’ of the Constitution were acceptable.53 In this way, the exclusive right to interpret the Constitution was claimed for the king, who had the power to define the ‘basic principles’ of the Constitution and to get rid of all further regulations. The warm welcome of Charles in Paris confirmed the royalist camp’s hopes that a Restoration preserving monarchical sovereignty and reducing constitutional guarantees was within the bounds of possibility. Therefore it was not only Talleyrand who intervened and cautioned Louis against a wrong assessment of the situation in the country, but also Tsar Alexander I, who tried to get Louis to accept the Senatorial Constitution.54

Louis, however, was adamant and not willing to recognise the existing draft of the Senatorial Constitution. In a fragmentary and confidential note,55 Louis explicitly rejected the last article of the draft (Art. 29). Moreover, Louis not only denied the Senate’s right to approve and enact a new French constitution, he also blamed the senators as having participated in Napoleon’s crimes:

The Senate no longer has the right to decide the manner in which the French shall review and accept the constitution, which it did not have the power to do or to imagine that it could [do] in place of the people.

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Louis XVIII, by the grace of God King of France and Navarre, disbands the present Senate, an accomplice to all of Bonaparte’s crimes, and calls on the French people.56

At the same time, however, he made it clear that he intended to rule in the interest of public weal and according to the law, aiming ‘to heal the wounds of the revolution and to bring ease and happiness back to you and to reign in conformity with the laws of the monarchy and the changes that the general will has requested’.57

In return, the French people should never forget what they owed their king. Likewise, however, this meant that the king should not forget what he owed his country – a mutual relationship anticipating the political agenda of the Restoration:

But instructed by the most terrible lesson, enlightened by the most dis-astrous experience, let us forever remember: you, French people, never again depart from the bounds of duty and love [‘love’ is crossed out; MJP] that you owe to your Kings; and you, Kings, my Successors, as you seek to create the happiness of your subjects, the sole consolation for a Crown’s weight – never forget that your duty to them involves above all uphold-ing the law and making yourself respected.58

Louis’ personal opinions were not made public, which meant that an official statement was still due when Louis reached French soil on 24 April. Strengthened by tributes from the country’s military leaders in Compiègne on 30 April and overwhelming public support during his journey, Louis finally arrived at the castle of Saint- Ouen at the outskirts of Paris on 2 May. Here he received the members of the government, army generals and delegations of Corps législatif and Senate that same evening.59 As head of the senatorial delegation, Talleyrand took this opportunity to remind the King of the pending constitutional question. In answer, Louis formu-lated a written statement, which became known as the Declaration of Saint- Ouen and in which the Comte de Provence finally made his views on the Senatorial Constitution of 6 April public.60

The declaration, dated 2 May and released on 3 May, did not lack clarity. Intitulatio and devotio underlined clearly the fact that the proclama-tion of the new king and the acceptance of the Senatorial Constitution were not interdependent at all. By using the traditional title Louis, par la grâce de Dieu, Roi de France et de Navarre, Louis underlined the fact that the king could not to be appointed, because he was already the rightful ruler, whose legitimacy derived from God alone. This was in sharp contrast to the Senate’s interpretation and use of the title Roi des Français in the Senatorial Constitution, expressing a democratic form of legitimacy. The Bourbon’s central argument of a hereditary title to the throne was affirmed

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by declaring that Louis had just simply returned to the throne of his fathers, ‘enlightened by the misfortunes of the nation, which we are destined to govern’. Now it was time ‘to invoke that mutual confidence so necessary to our repose and to its [that is the nation’s; MJP] welfare’.61

Whereas Louis rigidly stuck to his ideals of monarchical sovereignty, reviving the idea of ‘divine rights’ as expressed by de Maistre and de Bonald,62 his tone changed considerably, however, when it came to the concrete regu-lations of the constitutional draft. Similar to the Comte d’Artois before him, Louis acknowledged the basic principles of the Senatorial Constitution, even though he qualified his remark by adding that ‘a great number of articles bear the impress of the haste with which they were drawn up’, and that those articles ‘cannot in their present form become fundamental laws of the State’.63 Yet without being explicit about those articles, Louis professed his will to accept a liberal constitution: ‘Resolved to adopt a liberal constitution, we wish that it should be wisely drawn up.’64

The phrasing of the above implied the Constitution had to be revised, either by changing certain parts of the existing draft or by setting up an entirely new constitution. Accordingly, the Declaration of Saint- Ouen heralded the procedure of revising the Constitution, which would be carried out by a commission involving the Senate and the Corps législatif within a few weeks. Without accepting the constitutional draft of 6 April in its existing form, Louis signalled his will to give parliament a share in creating the definitive constitution. The actual role of the chambers, however, was undecided; particularly, since the phrasing of the declaration implied that the King and not the chambers would nominate the members of the commission. It also remained unclear in how far the Senate and the Corps législatif were to be involved in the passing of the constitution, namely, whether a draft resolution was to be submitted by the king dependent on parliamentary approval, or whether parliament had no choice in the matter of accepting or rejecting the constitution.

The somewhat vague nature of the wording is evidence that Louis him-self was uncertain whether his own visions were feasible. His position was still weak and might have favoured his generous pledge of representative government with two chambers and the promise of comprehensive rights in taxation, together with other legal guarantees: public and individual liberty; freedom of the press; religious liberty; guarantee of the existing dis-tribution of property; ministerial responsibility; an independent judiciary; recognition of the national debt; acknowledgement of pensions, ranks and dignities of the military personnel; equal treatment of old and new, that is Napoleonic, nobility; preservation of the Legion of Honour; access to all public and military posts for all French citizens; freedom of opinion and expression.65 These concessions and guarantees fundamentally accepted the Senate’s suggestions put forward in the preliminary declaration of 1 April66 and the Senatorial Constitution respectively, sanctioning many political

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realities generated by the Revolution and Napoleon. The irrevocable end of the feudal state and the guarantee of inalienable individual and political rights paid tribute to the Declaration of the Rights of Man and of the Citizen. The recognition of the national debt and the guarantees relating to the army signalled the will of the King to guarantee the rights and obliga-tions of the Empire. Abandoning the idea of prosecuting people for their political opinions was to be regarded as a necessary measure for safeguard-ing peace and tranquillity in France. It is nevertheless significant that Louis did not adopt all the proposals of the Senate, nor did all the concessions he had made himself in the Proclamation of Hartwell (1 January 1814) appear in the text.67 Among the missing provisions of the Senatorial Constitution were the ones establishing equal taxation (Art. 15) and making the method of military recruitment a matter of ordinary legislation (Art. 16). Moreover, Louis’ proclamation did not mention adopting the existing code of law (Art. 28), nor did it mention the composition of the legislative body or the controversial Article Six, which guaranteed munificent privileges for the senators.

2.2.2 The Constitutional Commission and the Enactment of the Charte

The Declaration of Saint- Ouen was in fact ambivalent: the new political order was intended to be liberal, but did actually reject the Senate’s principle of popular sovereignty. This rejection became the decisive principle for setting down a new constitutional text, which got underway immediately after the release of Louis’ declaration.68 On 6 May 1814, the King set the session of Senate and Corps législatif for 31 May.69 This was important because an armistice with the allied powers had been reached on 23 April,70 and their troops were expected to leave France only after a stable political order had been established. Thus, approximately four weeks were reserved for drawing up the constitution. However, talks in the constitutional commission as such did not start until 22 May.

Summoned by Louis, the commission comprised 22 members. Apart from its president, Chancellor Dambray, the committee consisted of three com-missioners as direct representatives of the King, and nine representatives of both the Senate and the Corps législatif.71 The members of the chambers were essentially nominated by the King too, but great importance was attached to the idea of integrating representatives of different political factions to avoid giving the impression of a one- sided procedure and to pre- empt opposition on the part of the parliamentary chambers.

Count Ferrand, the third of the royal commissioners besides the Abbé de Montesquiou and Count Beugnot, had been entrusted with drafting the new constitution together with Dambray. Their aim was obviously to submit a detailed outline to the commission to speed up the procedure and minimise the risk of external objections. The basis for their activity was presumably

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Louis’ handwritten commentary on the various articles of the Senatorial Constitution.72 If we compare Louis’ comments on articles 22 to 29 of the Senatorial Constitution with Ferrand’s and Dambray’s final draft,73 we can see that the two texts are practically one and the same. The widespread idea that Louis played only a marginal role is therefore flawed.74 Even in the course of further deliberations, the King’s voice was decisive. After a first draft had been finished, new royal instructions formed the basis for a second draft, which in its fair copy was the basis for the constitutional commission’s deliberations, starting on 22 May.75

As previously seen in the Declaration of Saint- Ouen, Louis’ ambition was to strengthen royal prerogatives. In the draft(s), the king was represented as the sole holder of the pouvoir constituant. Accordingly, the legitimacy of the Constitution derived from the king’s authority and not the other way round. The rights of parliament had been substantially restricted and the Senate, termed as the ‘Chamber of Peers’ (Chambre des Pairs), was subordinate to the crown, while the privileges of Article Six of the Senatorial Constitution were disregarded completely. Moreover, by changing the election procedure the crown aimed at gaining influence over the second chamber too, hence-forth to be known as the ‘Chamber of the Deputies of the Departments’ (Chambre des Députés des Départements). The appointment of the presidents of the two parliamentary chambers was altered insofar as the Chambre des Pairs was to be presided over by the royal chancellor, whereas the president of the Chambre des Députés was to be elected by the king from five proposals put forward by the chamber. Further changes concerned the religious regulations of the Senatorial Constitution, which were qualified by declar-ing Roman Catholicism the state religion, and some judiciary provisions. In Louis’ opinion the immunity of judges could only be guaranteed after a thorough examination of the candidates, and he reserved the right to re- establish specific forms of military jurisdiction for himself.76 While the royal draft was more restrictive than the senatorial one in some respects, it was more liberal in others: not only was conscription abolished, but indi-vidual rights were also explicitly guaranteed by habeas corpus.

Due to the elaborate character of the new constitutional draft and Louis’ insistence on assuming the role as pouvoir constituant, the constitutional commission was more involved with discussion than constitution mak-ing. In line with this, the role of the King’s commissioners was mainly to defend the existing draft against possible objections.77 Louis obviously wanted to give an impression of unanimity in the commission without renouncing any of his pre- formulated key positions. With the pressure of reaching a result quickly so as to avoid public debate, the representatives of the chambers were clearly in a quandary as to whether they should accept the royal draft and thus save at least some crucial elements of the Senatorial Constitution by sacrificing the concept of popular sovereignty, or reject the royal propositions and risk a constitutional and power- political vacuum

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with incalculable consequences. They finally opted for the first alterna-tive, resulting in the representatives of the Senate and the Corps législatif doing hardly more than shaping and approving the existing provisions.78 Even though particular parts of the existing draft were intensely discussed, namely those concerning the king’s rightful role in the legislative process, the election of the delegates of the second chamber79 or religious freedom, the commission managed to achieve minimal changes only.80

The commission’s debates came to an end on 28 May 1814: nothing stood in the way of proclaiming the Charte on 31 May. At short notice, though, Louis postponed the ceremony, because he had been informed about the Corps législatif being displeased at the way the commission had been appointed and had been working, and at the fact that the Charte was to be enforced by a royal act of grace. This unexpected resistance had an impact on Louis, who was more than aware of the fact that he had taken a huge risk by trying to revive monarchical sovereignty in a country which had been dominated by the democratic principle over the last 25 years. However, Louis’ concerns were soon dissipated – mainly by Beugnot, who was respon-sible for the final version of the constitution’s preamble –81 and 4 June was the day now set for the proclamation of the new constitution.

Contrary to previous apprehensions, the ceremonious proclamation of the Charte in the afternoon of the 4 June 1814 proceeded without a hitch. Louis inaugurated the session with a speech82 in which he linked the Charte, the peace treaty signed with the allied powers just a few days before (30 May 1814) and the legacy of his brother, who had been executed in 1793. Whereas the Treaty of Paris allowed Louis to present himself as the nation’s peacemaker who had ended the times of war, the reference to Louis XVI was an expression of the unbroken continuity of monarchical sovereignty regardless of the Revolution. In Louis’ eyes, his brother was not dead, but alive in the Charte, which was intended to safeguard the well- being of the state in the future:

He [Louis XVI; MJP] lived again through the will that he intended for the instruction of the august and unhappy child [Louis Charles, Dauphin of Viennoise, who died 1795 in prison; MJP], whom I should have succeeded! With eyes fixed upon this immortal work, penetrated by the feelings that dictated it, guided by experience and supported by the advice of many of you, I wrote the Constitutional Charter, the reading of which you shall hear, and which shall place the prosperity of the State on a solid base.83

At the end of the King’s speech, the chancellor explained the ‘paternal feelings’ expressed in the new constitution, followed by Ferrand, secretary of state, who presented the actual Charte with all its articles.84 When he finally reached the end and the gathering unanimously consented to the new

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constitution it was indeed clear that the French political class had resigned itself to accepting the Restoration.85

2.3 The provisions of the Charte constitutionnelle

The actual language and terms used in the new constitutional document reflected the desire not to continue, but the need to break away from the traditions of ‘revolutionary constitutionalism’. The terms Constitution or Acte constitutionnel, linked with the Revolution and the Napoleonic Age, were deliberately avoided. Instead, the constitutional fathers fell back on an established administrative term of the Ancien Régime, namely Charte.86 There was to be no doubt that the Constitution was a constitution octroyée rooted in monarchical sovereignty,87 and not based on popular sovereignty.

This desire to carry on the tradition of the Ancien Régime was most explic-itly expressed in the long preamble of the Charte, forging links between pre- revolutionary France and Louis as its legitimate heir and ruler.88 The King is thus addressed as ‘Louis, by the grace of God, King of France and Navarre’ as in the Declaration of Saint- Ouen. Ignoring Revolution and Empire completely, the constitutional document is dated as the 19th year of Louis’ reign. Divine providence had recalled Louis ‘to our Estates’ and entrusted him with important commitments, above all to safeguard the country’s peace, ‘the first need of our subjects’. The Charte would continue the tradition of the ancient kings of France, who had – according to the circum-stances and needs of their time – granted certain privileges to their people, since ‘although all authority in France resides in the person of the King, our predecessors have not hesitated to alter the exercise thereof in accordance with the change of the times’.89 The progress of the Age of Enlightenment together with the social developments of the period called for a constitutional text,90 which similarly was the explicit wish of the French people: ‘we have recognised that the wish of our subjects for a Constitutional Charter was the expression of a real need’. At the same time, however, it was emphasised that ‘our first duty towards our peoples was to preserve, in their own interest, the rights and prerogatives of our crown’; clearly an unmistakable sideswipe at the regular regime changes since 1789, which would teach that:

Only the supreme authority can give to institutions which it establishes the strength, permanence, and majesty with which it is itself invested; that thus, when the wisdom of the king freely coincides with the wish of the people, a Constitutional Charter can be of long duration; but that, when violence wrests concessions from the feebleness of the government, public liberty is not less in danger than the throne itself.

The monarch having returned to the ‘fold’ now had the task of uniting past and present. Accordingly, the preamble linked modern constitutional

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principles and institutions with those of the Ancien Régime: peerage was seen as ‘an institution truly national […] which must bind all the recollec-tions with all the hopes’, whereas the Chambre des Députés was interpreted as a successor of public reunions in the Frankish Kingdom and the third estate of the Ancien Régime. In order to guarantee the reconciliation of ‘old’ and ‘new France’ it was declared that ‘all the evils which have afflicted the fatherland during our absence’ had been for gotten, and the crown vowed to be conciliatory even to active supporters of the Revolution. The King’s wish was that ‘all Frenchmen should live as brothers, and that no bitter recollection should ever disturb the security that must follow the solemn act which we grant them today’. To underline the sincerity of his constitutional promises, the monarch would, in the presence of the chambers, solemnly swear to preserve, protect and defend the Charte, reserving however the right ‘to swear to maintain it, with a new solemnity, before the altars of the One who weighs kings and nations in the same balance’. The closing sentence of the preamble stressed again the ‘monarchical principle’91 and drove home the idea that the constitution was above all an act of royal grace and a ‘gift’ to and for the people:

FOR THESE REASONS,WE HAVE voluntarily, and by the free exercise of our royal authority, ACCORDED AND DO ACCORD, GRANT AND CONCEDE to our subjects, as well as for us as for our successors, and forever, the Constitutional Charter as follows.

Nevertheless, while the preamble suggested the spirit of the ‘old’ France, the regulations that followed portrayed a modern understanding of con-stitution, granting both political and civil rights. The 76 articles of the Constitution were structured in seven sections, the first of which, containing 12 articles, being the ‘Public law of the French’ (Droit public des Français).92

Though there was no direct reference to the Déclaration des droits de l’homme et du citoyen of 26 August 1789, the articles of the Charte were undoubtedly in the tradition of this declaration. Among those rights granted were: equality before the law (Art. 1), equal treatment in fiscal affairs (Art. 2), free access for all French citizens to all public and mili-tary posts (Art. 3), individual liberty (Art. 4), freedom of worship (Art. 5), freedom of expression and freedom of the press (Art. 8), inviolability of property (Art. 9) and protection from political persecution as a result of views held before the Restoration (Art. 11). Beyond the regulations of the Senatorial Constitution, every form of conscription was abolished (Art. 12).93 Conversely, in determining Roman- Catholicism as the state religion (Art. 6) and granting financial support to priests of Christian religions only (Art. 7), the Charte constitutionnelle was more restrictive than the former draft of the Senate.94

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The second section (Art. 13–23) turned to the ‘Forms of Government of the King’ (Formes du Gouvernement du Roi). In keeping with the monarchical principle, the king alone was the holder of executive power (Art. 13): ‘To the King alone belongs the executive power.’ Article 14, which was to become the most controversial article of the whole Charte constitutionnelle in consti-tutional practice, specified that

14. The King is the supreme Head of the State, commands the land and sea forces, declares war, makes treaties of peace, alliance and commerce, appoints to all places of public administration, and makes the necessary regulations and ordinances for the execution of the laws and the security of the State.95

The appointment of ministers was a royal prerogative. The principle of ministerial responsibility towards parliament was codified, but the vague formulation ‘His [the king’s; MJP] ministers are responsible’ (Art. 13) left it unclear, whether only juridical responsibility was meant, or whether full political responsibility was implied. That was most unlikely, not only due to the character of the Charte in general, but also because of the concrete wording of article 56, which laid down that charges against ministers could only be made in the case of treason and misappropriation.96

Whereas king and ministers formed the executive body, the legislature was made up of a bicameral parliament. It comprised an Upper House, the Chambre des Pairs, which continued the tradition of the imperial Senate, and a Lower House, the Chambre des Députés, succeeding the Napoleonic Corps législatif. The maxim of the legislative process was, however, that the cham-bers were not the exclusive holders of legislative power, but that the crown also had a large share of influence: ‘15. The legislative power is exercised collectively by the King, the chamber of peers, and the chamber of deputies of the departments.’ The crown actually had a predominant position in the legislative process. It was the king who had the right to initiate bills: ‘16. The King proposes the law.’ He thus wielded the instrument of ‘preventive power’, supplemented by his absolute veto (Art. 22).97 Furthermore, it was up to the king to pass bills on either to the Upper or Lower House first (Art. 17).98 Even though the unrivalled role of the king was beyond question, the basic requirement of a parliamentary system was fulfilled in that any bill passed required the approval of both parliamentary chambers (Art. 18). Moreover, the chambers were granted the right to submit legal petitions, regarded as a way to put forward their own demands in a formal context: ‘19. The chambers have the power to petition the King to propose a law upon any subject whatsoever and to indicate what seems suitable for the law to contain.’99 Perhaps the most powerful weapon of parliament was its exclu-sive right to decide upon taxes, direct or indirect (Art. 48): ‘No tax can be imposed or collected, unless it has been consented to by the two chambers

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and sanctioned by the King.’ This right was mighty not least because land tax was to be fixed annually, whereas indirect taxes could also be approved for several years (Art. 49).

In contrast, the crown could exert its influence on parliament in one of several ways. The king had the exclusive right to summon both chambers and dissolve the Chamber of Deputies. In the latter case, however, the Lower House had to be re- convened within three months, evidently in order to prevent the king ruling without parliamentarian representation: ‘50. The King convokes the two Chambers each year; he prorogues them, and can dissolve that of the Deputies; but, in that case, he must convoke a new one within the space of three months.’100 The Chambre des Pairs, characterised as ‘24. […] an essential part of the legislative power’, would only be summoned together with the Lower House, the session of the one beginning and ending at the same time as that of the other (Art. 25). Article 26 specified that ‘Every meeting of the Chamber of Peers which may be held outside of the time of the session of the Chamber of Deputies, or which may not be ordered by the King, is unlawful and of no validity’. Ironically, this regulation aimed at preventing uncontrollable parliamen-tarian opposition as in the case of the regime change in April, when Napoleon had been deposed by the Senate even though parliament had not actually been summoned.101 The king was not restricted in his right to elect new peers (Art. 27) and thus had the necessary tool to form majorities in the first chamber by appointing a proportionate number of new members. The fact that the Chancellor of France or, if he was absent, a peer nominated by the king presided over the chamber (Art. 29) and that sittings were not open to public (Art. 32) just added to the impression that the Chambre des Pairs was more a dependent ‘Privy Council’ than an independent power in the political system.102

Concerning the Chambre des Députés des Départements, the monarch’s possibilities to make his influence felt were less distinct, but still evident.103 The king’s prerogative was to appoint the chairmen of the electoral committees (Art. 41), and the monarch also had the final word in the election of the president of the chamber (Art. 43). In addition, the king had pushed through high tax and age limits for the election process of the representatives, which were to be held by the electoral commissions (collèges électoraux) of the departments (Art. 35) every fifth year (Art. 37).104 To be eligible, the candidate’s annual tax revenue had to be at least 1,000 Francs, the minimum age was 40 (Art. 38). In order to obtain the right to vote, the minimum tax was fixed at 300 Francs, the necessary age at 30 (Art. 40).105 The main reason for introducing a censitary electoral system was certainly the conviction that wealth would guarantee political views similar to those of the crown. An additional hope was that the linking of tax revenue and voting rights might promote higher public revenues inso-far as tax evasion would fall. Be that as it may, the restrictive provisions

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of the Charte marked a step back in the granting of the right to vote in France.

Despite the crown’s undeniable influence over the composition and activity of the second chamber, however, the immunity of its members, a minimum requirement of any parliamentary system, was guaranteed. Any kind of physical coercion before, after and at parliamentary sittings was prohibited (Art. 51). At the same time, no member of parliament could be prosecuted or arrested during the sessions unless under the express order of the chamber itself (Art. 52).

Concerning the judiciary (Art. 57–68) it was set that: ‘57. All justice emanates from the King. It is administered in his name by judges whom he appoints and whom he invests.’ It was again the king who held sway, particularly as he also had the right to grant amnesties and to mitigate sen-tences (Art. 67). An independent judiciary was nevertheless guaranteed by declaring that judges were not to be transferred (Art. 58) and that the exist-ing judicial system was to be maintained (Art. 59–61).

Moreover, special courts and boards of inquiry, with the exception of specific forms of military jurisdiction, were irrevocably abolished (Art. 63), while the administration of justice in open court (Art. 64) and the upholding of jury courts (Art. 65) was codified. Additionally, the right of the individual to have his case heard before a judge was set (Art. 62) and the legal instrument of confiscation was abolished (Art. 66). Most importantly, however, the Code civil in its entirety, the central legal heritage of the Napoleonic Age, was integrated in the legal system of the Restoration period: ‘68. The Civil Code, and the laws actually existing which are not in conflict with the present Charter, remain in force until legally abrogated.’

The will to recognise the rights and obligations of the Revolution and Napoleonic Age was underlined by the last section of the Constitution, entitled Droits particuliers garantis par l’Etat (Art. 69–74), which gave con-stitutional form to guarantees claimed in the Senatorial Constitution and promised by the King in the Declaration of Saint- Ouen: acknowledgement of pensions and ranks of military personnel (Art. 69), recognition of the national debt (Art. 70), equal treatment of former and new nobility (Art. 71) and the preservation of the Legion of Honour (Art. 72).

The contract- like character of the Charte was manifest again at the very end of the constitutional text, when the King and his successors committed themselves to the provisions of the constitution: ‘74. The King and his suc-cessors shall swear, in the solemnity of their coronation, to observe faithfully the present Constitutional Charter.’106 With this commitment, the crown subjected itself to the law, irrespective of the monarchical rhetoric used in other parts of the text and regardless of the fact that the Constitution had been imposed. At the same time, the crown renounced its right to make any unilateral changes to the Constitution, which was perhaps the most significant turn away from an absolutist regime to a monarchical- constitutional system.

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2.4 Purloined revolution and political innovation

The Charte, which had been forced through by Louis following Napoleon’s fall, was certainly an inconsistent amalgam. But it was exactly this incon-sistency which made the political project of the Bourbon Restoration a promising model for overcoming the Revolution in the constitutional context.

The initiative for restoring the Bourbon dynasty had come from the French Senate. Their constitutional draft of 6 April aimed at re- establishing the monarchy on the revolutionary principle of the sovereign nation. It was, thus, initially the aim to adopt the first French Constitution of 1791: to ‘legalise’ monarchical power and to transform the crown into one of several constitutional bodies. If the Comte de Provence had accepted this draft, it would have meant restoring the dynasty, but it would also have been an act embedded in the revolutionary tradition and divested of any counter- revolutionary drive.

However, due to Louis’ personal intervention it was exactly this ‘drive’ which would become the symbol of the whole epoch. Remarkably, Louis managed to revive the concepts of ‘monarchical sovereignty’ and ‘divine right’. Unwilling to become King of the French by the grace of the nation, Louis took control of the constitutional revolution initiated by the Senate, and opposed any aspirations for a ‘democratic kingdom’ with the claim of the hereditary Bourbon right to rule. In doing so, he fell back to the tra-ditional legitimising of the Ancien Régime. Seen in this light, ‘Restoration’ meant repossession of the pouvoir constituant and hence sovereignty by the monarch. The importance of this repossession was clearly conveyed by Beugnot on 2 June 1814 in a memorandum addressed to the King two days before the enactment of the Charte. In this memorandum, Beugnot explained the obvious advantages of a Restoration based on the principles of divine rights, in contrast to a Restoration of the monarchy founded on the Senatorial Constitution of 6 April:

The plan proposed by the Chancellor107 has the exceptional and very unusual merit of absorbing the Revolution into the Monarchy; all that can be set against the plan and that would tend to have the Senate or the legislative Body or the electoral colleges deliberate tends instead to absorb the Monarchy into the Revolution. This mode of publication that Your Majesty seems to have approved in my presence may be neither modified nor altered, because it is the exact consequence of a strict principle. The King may be King of France, that is to say, the successor of Saint Louis, of Henri IV and Louis XIV; he cannot be King by the Revolution, that is to say, succeeding men I dare not name. Because he can want only the first, the method proposed by the Chancellor is essential, and if there are dangers, they must be faced.108

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The Restoration project was thus not to let the Revolution absorb the monarchy, but to allow the monarchy to absorb the Revolution. That Louis was actually able to do this and enforce the Constitution on 4 June 1814 was mainly due to the favourable context: the common wish for peace and stable and just rule.109 At the same time, Louis was clearly aware of his limits and acted with foresight, resulting in a Janus- faced Constitution. The preamble of the Charte made the claim for monarchical sovereignty explicit, while the progressive character of the text could not be denied. The key achievements of the Revolution were guaranteed, and in many respects the Charte was more liberal than the constitutions of the Empire had been. It embodied a move away from a semi- constitutional, authoritarian form of government, to a liberal constitutional state. This change went hand in hand with a fundamental alteration in the way monarchical rule was legitimised.

According to Max Weber’s classical concept of Legitimitätsglaube, rule is legitimate as long as subjects accept this rule as just and valid.110 In the case of post- Napoleonic France, however, traditional forms of monarchi-cal legitimacy, that is the belief in a divinely- ordained political system and hereditary rights of the ruling dynasty, were no longer a reliable guarantee for the preservation of the monarchy. Enlightened discourse on legitimate forms of government and rule, starting in the seventeenth century, had scrutinised the classical foundations of monarchical rule, and by the end of the eighteenth century the root idea of the ‘divine right of kings’ had been irreparably damaged.111 Against this background, the rad-ical qualification of ‘monarchy’ in the American and French Revolution meant consistently putting into practice what had been prepared by political philosophy before.112 It was now necessary to provide the mon-archy with new cornerstones. This was particularly the case in France, where the ties between the former dynasty and present society were of a highly fragile nature, given the experience of the Revolution and the Empire as well as the sheer length of time since the fall of Louis XVI. Accordingly, when Louis set out to combine Revolutionary legacy with monarchical sovereignty, it was not only an act of reason, but a political necessity: concessions had to be made.113 In so doing, legitimacy shifted from ‘tradition’ to ‘law’ and thus became ‘rationalised’, despite the fact that the political rhetoric of the Restoration continued to play on the topoi of ‘custom’ and ‘divine rights’.

The Charte and the political programme of the Restoration could be described as an exercise in maintaining the appearance of a ‘traditional monarchy’, whereas in actual fact it was the Revolution and its heritage which were being perpetuated. This inconsistency did not go unnoticed among those who had hoped for a complete shift away from the ‘revolutionary spirit’ after Napoleon’s fall. One such person was Joseph de Maistre, who in a letter from St. Petersburg, dated 18 July 1814, referred to

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the ambivalence of the Restoration by emphasising that it was essentially continuing the Revolution by other means:

One would be entirely mistaken to think that Louis XVIII returned to the throne of his ancestors. He returned only to the throne of Bonaparte, which is already a great source of happiness for humanity, but we are far from repose. The revolution was initially democratic, then oligarchic, then tyrannical. Today it is royal, but it always follows its own path. The prince’s art is to reign over the revolution and to softly suffocate it by embracing it. Directly contradicting the revolution or insulting it would be to risk reviving it and to lose oneself in the process.114

For de Maistre the Restoration was nothing less than a ‘royal Revolution’, and he pointed out that the Revolution could only possibly be suffocated by ‘embracing’ it. Nevertheless, the Bourbon Restoration was far from perfect in de Maistre’s eyes. The idea of granting comprehensive legal guarantees, restricting monarchical power, but above all acknowledging the social order created during the Napoleonic Age, were alien for radical anti- revolutionary political thinkers such as de Bonald and de Maistre himself. The restoration of the monarchy, which had been intended to become the exact ‘opposite of the Revolution’,115 had now turned into a political compromise with revolutionary ideals and principles.

However, the royalist camp was divided. There were also those who regarded the actual character of the Restoration as the only conceivable answer to the needs of the time. Especially Chateaubriand considered the return to the Ancien Régime a high- risk if not impossible venture. In his view, the Charte constitutionnelle was suitable in satisfying the social demands of the time and safeguarding the essence of the monarchy: ‘All the bases of a reasonable liberty are included, and republican principles are so neatly integrated that they serve as the force and grandeur of the monarchy.’116 The compromising character of the Charte constitutionnelle was not seen as a result of the force of circumstances, but as an essential acknowledgement of irreversible developments in society and political thought:

The Charter is thus hardly an exotic plant, a chance momentary accident: it is the result of our present mores. It is a peace treaty signed by the two parties that divided the French, a treaty in which each of the two aban-dons some of their aspirations in order to join together for the glory of the fatherland.117

Consequently, Chateaubriand saw the main task of the crown as under-standing and living Restoration as ‘progressive renewal’, not as ‘historical reconstruction’. And indeed, the preamble of the Charte followed this credo by stressing not only monarchical sovereignty but also the sensibility of the

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crown and its capability to develop state institutions according to the needs of the nation and the times.118 Making the dynasty the best guarantor for the flourishing development of the country and demonstrating the will to reform was the core of Restoration ideology.

But this meant that the monarchy had to meet these expectations in order not to lose credibility and the support of the people. Above all, any remain-ing fears of a return to the Ancien Régime had to be dispelled and the king had to prove that the text of the Charte would not be abused as a means of returning to pre- revolutionary conditions. This requirement was particu-larly stressed by Talleyrand. Irrespective of the fact that his initial plan to restore the Bourbon monarchy under the premise of popular sovereignty had failed, Talleyrand realised that the principle of ‘monarchical legitimacy’ was a functional tool to rehabilitate France and to strengthen the country’s international reputation and position during the Congress of Vienna.119 In his final report on the Congress of Vienna, written to Louis XVIII immediately after Napoleon’s Hundred Days, Talleyrand repeatedly emphasised that defending the ‘principle of legitimacy’ had decisively strengthened the French delegation at the negotiations. Talleyrand’s detailed report was at the same time an opportunity to submit guidelines to the King for a stabilising domestic policy; guidelines, which illustrate the potential of ‘constitutional monarchism’ in the post- Napoleonic Age.120

Talleyrand pointed out that the ‘principle of legitimacy’ was endangered by those who confused ‘source’ and ‘exercise’ of state power and mistook ‘legitimate’ for ‘absolute’ authority. He stressed that it was of vital importance that the exercise of power was adjusted to the Zeitgeist: ‘the spirit of the times in which we live requires that, in great civilized States, supreme power is exercised only with the assistance of bodies taken from the heart of the society that it governs’.121 Fighting against the spirit of the time would mean resisting a universal opinion, on which the Charte had been based. Somewhat critically, Talleyrand underlined the fact that in the past the royal government had not always done what it could to strengthen public confidence in the Constitution: the fundamental prerequisite of political sta-bility in France. Moreover, he supposed that public doubts as to the crown’s own loyalty to the Constitution had favoured Napoleon’s return from Elba. Having said that, Talleyrand turned to a more general evaluation of the nature of ‘legitimacy’, and explicitly stated what was implicitly acknowledged by the Charte constitutionnelle, namely that ‘divine right’ was no longer a reliable basis for monarchical rule:

When religious sentiments were deeply engraved in hearts and all- powerful over minds, men could believe that sovereign power was an emanation of Divinity. They could believe that the families placed on thrones by the protection of Heaven and maintained there by His will, ruled over them by divine right. But at a time when the bonds of religion

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have been much relaxed, if not broken, one no longer believes in such a source of legitimacy.122

Now, only rule that guaranteed the happiness and peace of its subjects would be legitimate. The virtues of the sovereign monarch would not be enough; it was stable institutions which had to be set up as the reliable cornerstones of trust, and in Talleyrand’s eyes, yet more was needed to ensure durability: ‘The institutions are not themselves able to ensure the happiness of the people, given that they inspire no confidence without establishing the form of government that the general opinion of the century regards as the only one that could achieve this goal’.123

More specifically, Talleyrand stressed the importance of long- lasting guarantees such as individual liberty, freedom of the press, an independent judiciary, ministerial responsibility and the separation of powers. Imple-menting and safeguarding these guarantees was a requirement for all states of Europe, but particularly France:

I have been even less able to do without them when the Sovereigns, in the audiences that they have granted me [on the occasion of my leave], all recommended that I tell Your Majesty that they are firmly convinced that France will never be at peace if Your Majesty were not to fully share those views, and were not to take them as the sole rule of your government; that everything should be forgotten in France, and without restriction; that any exception would be dangerous; that the only guarantee for the Sovereign will only be given when all parties were also given guarantees; and that these guarantees would only be sufficient when they would be judged to be so by all classes of society; that it seems indispensable to arrive at a comprehensive system, such that each party would derive sincerity and obvious benefits from it and that makes the Government’s goal apparent from the beginning; that places everyone in a position to appreciate their own situation; and that leaves no- one uncertain.124

Altogether, Talleyrand’s suggestions aimed at overcoming the Revolution and re- establishing ‘legitimacy’ in moderation. In this context, the Charte constitutionnelle played a decisive role insofar as the Constitution was interpreted as a guarantor for the stability of the monarchy. In Talleyrand’s view, it was exactly this guarantee of inalienable rights and the containment of power, in order to prevent despotism, which was vital to remove the breeding ground for future revolutions. Long- term Restoration politics consisted not in suppressing liberal aspirations, but in granting liberal concessions.

Political reality now had to prove whether these guidelines could be put into practice and whether the ‘dare’ to overcome the Revolution by ‘purloining’125 it constitutionally would become a European success story.

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2.5 Conclusions

When the Bourbons returned to power in 1814 and sought to establish a new constitutional system, the situation in France was unique. The founda-tions for setting up the Charte constitutionnelle could only be laid because of the political collapse of the Napoleonic Empire. Napoleon himself had brought his regime into disrepute by refusing all attempts of the Allies to make peace and by placing intolerable burdens on the country, even though a complete military and economic breakdown had been foreseeable. The self- delegitimisation of the regime culminated in the French Senate deposing the Emperor at the beginning of April 1814. This coup, which was initiated by Talleyrand and the Russian Tsar Alexander, paved the way for a basic reorganisation of the political order. However, at that time it was not at all clear that a constitutional system along the lines of the later Charte would be installed, not even that the Bourbon monarchy would or could be restored. The deciding factor for choosing the ‘Bourbon alternative’ was in the end a very pragmatic one, namely the belief that the former dynasty was, in comparison to other possible alternatives, the most legiti-mate, and would find stronger acceptance among the people. Hence, the Comte de Provence and later King Louis XVIII was in a weak position. The Senate again, trusting in its own strength, did not envisage re- establishing traditional power structures, but aimed to found a new legal system, which should form the basis for the Bourbon Restoration and at the same time preserve the ‘revolutionary heritage’ via constitutional guarantees. The principle of national sovereignty, based on the theory of the Abbé Sieyès,126 was to be safeguarded at all costs since it was seen as a conditio sine qua non for the return of the Bourbons. With this in mind, the Senate put together a liberal constitutional draft on 6 April 1814, in which the acceptance of this (new) constitution would be a prerequisite for appointing Louis as king.

Nonetheless, even though the point of departure was not a promising one for the Bourbons, in the weeks that followed Louis succeeded in defending his personal claim and in setting up a constitutional system using the language of ‘divine rights’. Favoured by the common wish for peace after the devastating Napoleonic Wars as well as the inept and objectionable conduct of the Senate, Louis, who won over public opinion by presenting himself as a person of integrity and the paternal saviour of his country and people, finally managed to force through the Charte constitutionnelle as a constitution octroyée. The Charte differed from the senatorial draft in one crucial component: it emphasised the sovereignty of the people. Moreover, it granted the king alone the pouvoir constituant and aimed at maintaining monarchical legitimacy. This characteristic feature, however, cannot obscure the fact that the Constitution as such was an expression of the existing power relations of the time which Louis refrained from encroaching on. Instead, he tried to position the monarchy in a tradition of ‘royal adaptability’ and ‘modernity’.

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The ambivalence of the Charte and its overriding character of compromise could not to be denied. The Constitution had recaptured the constituent power for the crown, yet at the same time perpetuated revolutionary inno-vations: it was neither purely ‘traditional’ nor ‘liberal’, and went towards reconciling the fragmented political landscape of post- Napoleonic France.127 On 6 May, when the Charte constitutionnelle was proclaimed, an archetypal constitutional model had been born.

The new ‘monarchical constitutional’ political system of the Charte (see Diagram 2.1) was undoubtedly determined by the crown, which was not only the sole holder of executive power, but also had a dominant position in the legislative process. In addition, a set of constitutional tools to exert influence on the composition and activity of the parliament as well as the judiciary had been provided. Nevertheless, monarchical power was far from unrestricted, and the sheer existence of a written constitution acknowledged the limited character of royal authority. Despite the king’s leading role, he could no longer rule devoid of parliament without violating the provisions of the Constitution. Many of the royal prerogatives such as the right of initiative in the legislation and the right to dissolve the second chamber were certainly powerful, but of a defensive nature: they could not obscure the fact that every bill and every budget proposal required the approval of both chambers. And even though the census and qualification criteria for elections were high, suffrage and thus the right of the citizens to take part in the political process was not questioned. The catalogue of fundamental

Roi deFrance et de Navarre

Ministers

Chamber of DeputiesChambre des Députés

Chamber of PeersChambre des Pairs

Electorate (census)

Appointment and dismissal AppointmentRight of InitiativeDissolution

Impeachment

Diagram 2.1 The political system of the Charte constitutionnelle (1814)

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rights set down in the Charte codified a sacrosanct legal space, which could, at least in theory, not be violated by the executive power. Thus far, there was no doubt that the concrete settings of the Constitution reflected the elementary demands of ‘modern constitutionalism’.

The very core of the Charte vehemently denied republican and ‘popular’ elements of modern constitutionalism, but seemed to make reference to other crucial components, such as the doctrine of ‘mixed government’.128 Indeed, several elements and institutions of the celebrated ‘English Constitution’ appeared in the Charte: the idea of representative government, bicamer-alism and the principle of ‘king in parliament’.129 Due to his own personal experience in exile, Louis knew the British constitutional system and had come to appreciate it in many respects. For this reason, one may surmise that Louis actually had a transfer of the ‘English Constitution’ en bloc in mind and further envisaged implementing Montesquieu’s central concept of a separation of powers. Nonetheless, the importance of England and Montesquieu as an inspiration for the Charte should not be overestimated, even if there are striking parallels between Montesquieu’s theory and certain components of the Charte.130 Rather, any elements adopted have to be seen as subordinate to the fundamental principles on which the French constitu-tional system of 1814 was founded.

These fundamental principles are essentially derived from the claim that the monarch is the holder of the pouvoir constituant and do, in fact, go against the idea of a separation of powers as described by Montesquieu based on the English system. It is therefore misleading to interpret the Constitution of 1814 as ‘the […] most faithful reproduction of Montesquieu’s doctrines’.131 Rather Charte- constitutionalism is in the tradition of Pufendorf’s panegyric for a monarchia limitata, which he had sharply differentiated from res publica mixta in De jure naturae et gentium (1672)132 by resorting to Grotius’ concept of ‘limited monacrchy’.133 For Pufendorf, the res publica mixta and the division of sovereign power, in his eyes ‘typical faux pas of political Aristotelians’,134 exemplified the res publica irregularis. The only ‘regular’ polity was the monarchia limitata, in which the monarch was bound to certain laws and the consent of the nobles and the representatives of the nation, but still continued to embody the unity of sovereignty. In point of fact, Pufendorf vehemently denounced the idea that supreme sovereignty must be crippled in a limited monarchy, even if the limits on the monarch were validated by a constitutional contract.135

Strictly speaking, the preamble of the Charte, specifying that ‘all authority in France resides in the person of the King’, was incompatible with the idea of constitutional monarchy. It is obvious that one person cannot be the bearer of the entire state authority and yet at the same time be restricted in exercising such authority. However, this obvious contradiction was to be resolved by a politico- theoretical distinction between ius and exercitium. Accordingly, the substance of absolute monarchical power was still in the

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hands of the crown with its execution partly left to certain constitutional institutions.136 Contrary to Montesquieu’s concept of three independent powers, which are based on a legitimacy of their own and hold both ius and exercitium, in the case of the Charte, the only holder of ius is the monarch. The other powers in the constitutional system are subordinate and only have delegated power (exercitium). In this context, the monarchical principle also differs from the royal prerogatives of the English king, which describe power as belonging to the monarch after deducting parliamentary rights. In the English case, monarchical power represents ‘what remains’ and not what is claimed by the other constitutional powers. The monarchical principle turns this rule upside down: the ruler is the holder of all authority and other powers can only take action in those fields which are not claimed by the monarch himself.

Though the practical importance of this differentiation should not to be overestimated, its theoretical implications are, nevertheless, far-reaching. In this regard, nothing less than a counter concept to Montesquieu’s separation of powers had been created, which made it easier for Louis XVIII to agree to the practical restriction of monarchical power by the Charte. And it was, perchance, this subtle distinction between ‘authority in essence’ and ‘mediated authority’ together with the prospect of keeping up appearances of ‘undivided monarchical sovereignty’ which might facilitate the voluntary renunciation of former rights for other monarchs in Europe, too, and make the Charte a successful ‘export product’.

Particularly with regard to Germany, where political and constitutional expectations were extraordinarily high after the Napoleonic Age, one might suspect that the ‘top down’ model of constitutionalisation offered by the Charte would be very attractive for monarchs. Nevertheless, that being said, it was not at all certain whether there were prerequisites for a Charte- like political system, or whether the political actors in the German states actually intended to ‘import’ the Charte. Whereas conservatives might consider the concrete settings of the French Constitution as far too liberal in character, liberals were likely to renounce the Charte as too conservative. The former might see a possibility to reduce the number of constitutional guarantees or even postpone releasing a constitution in favour of enlightened absolutist political reforms. The latter felt there were other constitutional ‘models’, which might better serve their interests. Thus, the question as to which constitutional path would be trodden in post- Napoleonic Germany was far from being answered in 1814/1815.

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3Constitutional Discourse and Political Reality in Post- Napoleonic Germany

When discussing the relevance and impact of foreign constitutional ‘models’, essential distinctions have to be made; firstly, regarding the actual point of reference, whether the model is indeed a legal document or whether it is more akin to a constitutional ‘concept’ or ‘idea’; secondly, between two levels of recipients, namely (a) that of the public sphere and political thought, and (b) that of ‘(constitutional) politics’ in the narrower sense of the meaning.1 This is notwithstanding the fact that there are a multitude of (potential) reciprocal influences, for instance in that political thinkers are often influential politicians and vice versa.

Therefore, in a first step this chapter will focus on public ‘constitutional discourse’ in Germany around 1815, that is, the way in which constitutional matters were discussed in the bürgerliche public sphere,2 and how different (foreign) ‘models’ were perceived.3 In a second step, constitutional dis-course will then be contrasted with the political reality in post- Napoleonic Germany in order to elucidate the realms of political feasibility as to how far certain constitutional ideas and practices could be taken on board.4

3.1 Beginnings of constitutional reception

‘German constitutionalism’ is often said to have been a belated and incomplete project.5 Indeed, there were a number of obstacles for the con-stitutionalisation of eighteenth and early nineteenth century Germany, perhaps the main one being the fragile nature of the German Bürgertum. Unlike Great Britain or France, where money and property were the charac-teristic features of the aspiring middle classes, in Germany the bourgeoisie lacked influence until the mid- nineteenth century, and it was only in the course of industrialisation from 1850 onwards that the Wirtschaftsbürgertum and Besitzbürgertum gradually gained ground. Before that, the German mid-dle class was more or less represented by the Bildungsbürgertum, which was essentially embodied by the Beamtentum (‘civil servant apparatus’).6 Accordingly, the German intelligentsia more or less relied on the German

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princes and rulers for employment and earnings.7 The German Bürgertum was not only weak in terms of actual political clout, but also lacked a homogeneous ideology. There was not a national focal point which might have sparked the development of a strong constitutional movement. This aspect in itself reflects one essential character of German constitution-alism: the relationship between the question of constitutionalism and nationalism.8

However, the general assessment of the ‘imperfections’ of German con-stitutionalism, mainly determined by the experience of twentieth-century totalitarianism, is rather one- sided and thus begs correction. In actual fact, there was lively constitutional discourse in eighteenth and nineteenth century Germany. In contrast to the popular belief in a German Sonderweg,9 Germany was not averse to intellectual10 or constitutional ‘stimuli’ from abroad, especially in the late eighteenth and early nineteenth century.11 In this regard, not being a unitary state, while seemingly hindering constitu-tionalism, might even have had certain advantages.12

Discourse on modern constitutionalism in Germany basically started in the wake of the wide reception of Montesquieu’s De l’esprit des lois (1748), which was soon available in translation all over Europe. Thus, the focus of interest was primarily on the ‘English Constitution’ as described by Montesquieu and the concept of a separation of powers. Montesquieu’s political- philosophical work was generally received positively, although the idea of introducing a separation of powers fashioned after the English model was not considered to be an absolute must.13 Johann Heumann von Teutschenbrunn, for example, dismissed the idea of such a system in 1761 by emphasising that liberty in Germany was secured ‘by special means’, namely insofar as ‘here [in Germany] sovereignty [Majestät] as such is not shared between Empire and Ständen, but the administration of sovereign rights [Majestätsrechte] is’.14

Scholarly debate soon went beyond the issue of ‘balanced government’. At the time of the American War of Independence, questions regarding natural law, constitution, liberty, fundamental rights, democracy and republic were very much on the agenda of the educated classes.15 At the same time, the ‘English’ model started to lose some of its appeal.16 Nonetheless, in the 1770s and 1780s, German intellectual discourse on constitutional matters was not as vigorous or passionate as in pre- revolutionary France and remained a matter of interest only to an elite.

More recent studies on transatlantic constitutional influences reveal that despite enthusiasm for the Revolution as such, the concrete impact of the American Constitution(s) on late eighteenth-century Germany should not be overestimated. The events in America lacked immediacy due to sheer distance and meant knowledge about and interest in the Constitution of the United States was restricted; and if there were direct references, these were usually of a selective nature.17 This was in a large part due to the fact

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that German translations of the constitutions of the single states were not available until 1785,18 whereas the first translations into French were pub-lished as early as 1777.19 Although the Federal Constitution became accessible soon after its publication,20 its political- theoretical basis, the Federalist Papers, were not translated into German until the end of the eighteenth century. The first accurate German study on American constitutionalism dates from 1795, in which Günther Karl Friedrich Seidel analysed the Staatsverfassung der Vereinigten Staaten, praised its potential and emphasised that ‘the blossoming of all the useful and pleasant aspects of the Arts and the Sciences’ was due to the quality of the US Constitution.21 However, it was not Seidel’s work which in the following years determined discourse in Germany on the political and constitutional system of the United States, but a highly critical and somewhat malicious study by Dietrich Heinrich Freiherr von Bülow on the Freistaat von Nordamerika in seinem neuesten Zustand. In these two volumes, the author disparaged the Federal Constitution of 1787 wholesale as a ‘blunder’ and the result of a lack of virtue. He went on to say that the Constitution was anarchic and unrepublican, and criticised in particular the new, and obviously misun-derstood, federal system:

The power legislating the whole must very soon overwhelm those powers which grant laws to its constituent parts or, in the event of the latter resisting, the state body will be dissolved or a civil war will ensue. Two supreme powers or two sovereigns are as impossible as two deities or two souls within one body.22

Neither did the American Constitution nor the first written constitu-tion in continental Europe, the Polish Constitution of 3 May 1791, play a major role in constitutional debate in late eighteenth-century Germany. Designed to redress the long- standing political flaws of the Polish–Lithuanian Commonwealth and its traditional system of ‘Golden Liberty’, the Polish Constitution had been initiated by the King himself and was to be qualified as liberal- conservative.23 The text drew significantly on the English constitutional system and the American Federal Constitution of 1787 – according to Stanislaw Malachowski, who in his role as Marshal of the Sejm inaugurated the debate on the new constitution on 3 May, the two ‘most celebrated of the 18th century’, which would yet be surpassed by the Polish Constitution.24 The Polish Constitution comprised 11 detailed articles and provided a Montesquieu- like separation of powers in a bicam-eral legislature, composed of a ‘Chamber of Deputies’ (Izba Poselska) and a ‘Chamber of Senators’ (Izba Senacka), an executive branch (‘the King in his council’),25 and judiciary. In addition, the Constitution moved towards democratising the polity by introducing political equality between towns-people and the nobility, and also by placing the peasants under the protection of ‘national law and government’, thus mitigating the worst

Constitutional Discourse and Political Reality 41

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abuses of serfdom. Efforts were made to limit the legal immunity and political prerogatives of the nobility, for example by abolishing the parlia-mentary institution of the liberum veto, which had allowed any deputy of the Sejm to force an immediate end to the current session and nullify all legislation already passed by it.

In Germany, the new Polish Constitution met with almost unanimous approval among those who took note of it26 and was praised as ‘of recent ones, one of the best that people wishing to fashion their own constitution have given themselves’. As Johann Erich Biester testified, the Constitution was short, conclusive and ‘does not arrogantly pretend to be a complete codex, containing decisions for every case’. It was therefore considered to be a valuable example of a constitution based on theoretical and philo-sophical reasoning.27 Liberals28 and conservatives alike expressed their approval. For the conservatives, the May Constitution was clear proof that existing institutions could be reformed without revolution.29 Having said that, the Constitution was not given a chance to demonstrate its long- term practical reliability, since after only one year it was overthrown by Russian armies allied with the Targowica Confederation in the Polish- Russian War of 1792. This might be one reason why the 3 May Constitution was perceived selectively and perhaps only superficially by a small group of German intellectuals and thus failed to become a part of mainstream constitutional discourse.30

Broad public interest in constitutional questions was in fact only aroused by the outbreak of the French Revolution and the ensuing first written French Constitution on 3 September 1791. Unlike the constitutions of the American states, the text of the French Constitution of 1791 and its successors were available in German translation almost immediately.31 Wilhelm von Humboldt was one of the first to comment on the new French Constitution, namely in a letter to Friedrich von Gentz – the later collaborator and ghostwriter of Metternich, famous for his translation of Burke’s Reflections into German.32 In his letter, written in late 1791 and published in the Berlinische Monatsschrift in January 1792,33 Humboldt asked whether it was possible to build a new political system and constitution on the principle of virtue alone, and concluded that such a venture was doomed to failure due to human nature and historical experience.34 For Humboldt, whose line of argument became a ‘model’ in itself for German moderate liberals over the next few decades, it was obvious that a new constitution could only be built on an existing one and that a radical split had to be avoided at all costs. In his eyes, the French Constitution of 1791 was not a reliable project:

Instead of a system designed solely for extracting as much as possible from the nation to satisfy the ambition and wastefulness of one indi-vidual, there should be a system aiming only for the freedom, peace

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and happiness of each and every individual. Two completely different constellations should thus follow one after the other. Where is the band that will tie them? Who dares to use his creative powers and has the skill to weave such a band?35

Over the next few years, constitutional debate became increasingly polar-ised, primarily due to the diversity of constitutional experiments in France after 1791,36 but also due to constitutionalisation processes in other parts of Europe.37 Debate centred on the concept of the sovereignty of the people. Supporters of revolutionary constitutionalism, however, were in the minority, and public avowals of Die vollendete Verfassung der West-Franken38 and publications such as that of Johann Benjamin Erhard Ueber das Recht des Volks zu einer Revolution were more the exception than the rule.39 This was mainly because of the overwhelming power of the state in Germany, which prevented the development of any kind of progressive constitutional movement. Likewise, there was widespread scepticism towards revolution-ary constitutional ideas, irrespective of the fact that debates abroad were followed closely. Contemporaries were convinced that traditional concepts of ‘constitution’ and ‘constitutionalism’, such as ‘balanced constitution’ and ‘mixed government’, would meet the needs of the country more effectively, not least because ‘democracy’ and ‘rule of the people’ were generally equated with ‘rule of the mob’.40 The radicalisation of the French Revolution strengthened this classical view and fortified aversion towards drastic political ideologies.41 Given the endurance of corporative concepts of representation, the revolutionary change to ‘representative government’ could not be taken on board by a majority of the population,42 and for many people, the constitutional basis of the Holy Roman Empire remained the only solid foundation on which to build a body politic.43

The general rejection of radical models is reflected in the fact that there are only a few drafts of revolutionary constitutions dating from this period.44 The concordant idea of ‘reform’ and ‘improvement’ tended to prevail in politics. This, however, did not imply that the importance of ‘constitutional government’ was not recognised. Quite the opposite: there was a growing conviction that a (written) constitution was an indispensable tool in avoiding despotism, both republican and monarchical, and that the Zeitgeist could not be ignored, particularly by German rulers. In this context, the idea of ‘preventive constitutionalisation’ to pre- empt revolu-tion began to take shape.45

The Napoleonic Age brought important yet ambiguous changes. Discussion about the constitutional system of the Holy Roman Empire and its ‘reform-ability’ practically ended with the dissolution of the Reich between 1804 and 1806.46 Thus, the need for constitutional alternatives became increasingly urgent. Nevertheless, this did not imply that the country’s intellectuals found revolutionary models more attractive. On the contrary: the more

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expansionist Napoleon’s ambitions became, the more inclined the German educated classes were to join forces with the monarchical elite in oppos-ing the ‘revolutionary stand’ in favour of a conservative constitutional approach. Those that did speak out in favour of a republican constitution soon fell silent, and before long there was consensus that constitutionalism was best implemented not in opposition to, but in cooperation with the ruling dynasties, hence narrowing the focus and objective to a constitu-tional monarchy.47 Nonetheless, the ‘(self-)restraint’ of the constitutional debate – also due to the fact that constitutional discourse was dictated by ideas of nationalism and national unity –48 did not mean that aspirations for a constitution had been utterly abandoned; they had been merely adapted to accommodate the political challenges of the time, which, in some way, even helped political discussion to make headway.

Napoleon’s extensive reform and constitutionalisation agenda throughout Europe, best symbolised by the creation of model states such as the Kingdom of Westphalia, was clearly recognised as being a power- political tool to make French hegemonic policies legitimate. Consequently, ‘Napoleonic constitu-tionalism’ and the release of the first written constitutions in Germany and other states in the French sphere of influence were not perceived as progress, but as instruments of foreign rule: an assessment49 confirmed by the fact that none of the constitutions in Europe created under French influence actually became fully-functioning political systems. However, Napoleon’s ‘modernisation project’ did give rise to major improvements in the fields of administration and law. The introduction of the Code Napoléon in particular was an unambiguous signal that the codification of the public domain was irreversible.50 Intensive political and social reforms even in those parts of Germany not under immediate French rule, above all Prussia,51 reflected the growing awareness among rulers that maintaining pre- revolutionary conditions was neither desirable nor conceivable. Moreover, it was doubtful whether rejecting reforms in constitutional law could be justified in the long term.52 The chances therefore were high that constitutional debate in Germany would both continue and intensify at the end of political uncer-tainty and French hegemony in Europe. This moment finally came in 1814, when Europe found itself swept along by a wave of constitutionalisation.

3.2 Constitutional debate and ‘models’ around 1815

3.2.1 The nature of constitutional discourse

After the Befreiungskriege (1813–14/15), the constitutional question was more urgent and pressing than ever before. The war against France had been fought and finally won, and the Russian- Prussian Proclamation of Kalisch, directed in March 1813 to the German nation, had acknowledged the people as a political subject.53 The successful end of the war was thus grounds for

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a political, and especially constitutional, quid pro quo. Moreover, the press had enjoyed many freedoms during the war, facilitating discussion about both nation and constitutional state.54 In the immediate aftermath of Napoleon’s fall, lively constitutional debate sprang up in Germany; debate that went hand in hand with patriotic zeal and repeated appraisals of the Fatherland. Thus, constitutionalism ultimately became the absolute focus point of intellectual discourse. In 1815, Friedrich Christoph Dahlmann captured the spirit of the Zeitgeist: ‘Of all worldly things, nothing is more important than what concerns the constitution of the Fatherland!’55 Yet, the constitutional movements after 1815 had one common major restrictive element: a distinct refusal of any notion of revolution.

Whereas ‘revolutionary optimism’ had been a view taken only by a minority during the Revolutionary Age, such optimism almost disappeared in the post- Napoleonic period. Now not only conservatives, but also an overwhelming majority of liberals opposed any radical concept, feeling that the ideals of the eighteenth century had been betrayed by the Revolution and by Napoleon’s rule. This meant that the confrontation of ‘conserva-tive preservation’ and ‘liberal emancipation’ was only minor in Germany.56 Parallels between conservative and liberal ideologies likewise corresponded to the socio- cultural homogeneity of their educated spokesmen. Both con-servatives and liberals formed part of the bourgeois intelligentsia, and in most cases they were civil servants, either university lecturers, professors and government officials, or members of the clergy paid by the government. Similarly, many writers in the post- Napoleonic Age were commissioned by the government or other interest groups: Adam Heinrich Müller and Friedrich Schlegel by Metternich, Friedrich Schlosser by the North Rhine- Westphalian nobility, Joseph Görres, with his Rheinischer Merkur, by Hardenberg (until 1816),57 or Heinrich Luden and Lorenz Oken by the Grand Duke of Weimar. For the most part, discourse was lacking in radicalism, particularly since ‘the public’ (Öffentlichkeit) was basically identical with the intelligentsia, despite the fact that since the French Revolution the practice of reading political texts aloud in cafés and other public places58 had become more common in Germany, too. As a result, debates between different political camps in newspapers, journals and pamphlets, were often more ‘academic’ in style and line of argument than a political discussion in the modern sense of the word.59 Such characteristics have to be borne in mind to appreciate the nature of constitutional discourse in post-1814 Germany and to put the differences between conservatives and liberals into perspective.60

German conservative political ideology received input from having observed both the French and English political revolutions of the eighteenth and seventeenth century respectively. For a good part, the genesis of this ideology coincided with the way Burke’s political theory was received on the one hand and de Maistre’s and de Bonald’s on the other. In addition, the new ‘organic historicism’ together with growing conflicts between state

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administration and traditional corporative structures, as well as religious reforms contributed greatly to the formation of German conservatism, resulting in a diversity of ideological factions.

Catholic ‘Romantic conservatism’ wanted to unite church, state and society. Its representatives, among them Friedrich Schlegel, Adam Heinrich Müller and (after 1819) Joseph Görres,61 rejected both absolutism and revolution. They wanted to revive an idealised corporative form of government and regarded any allusions to ‘popular sovereignty’ and ‘representative govern-ment’ as ruinous. The essence of their ideology is well expressed in the introduction to Adam Müller’s journal Deutsche Staatsanzeigen. Müller emphasised that he wanted to demonstrate to the public:

that our people want the age- old German Landstandschaft [corporative form of government; MJP] and not some new- fangled representation of capita, souls or money, and that no party stands in the way of peace of mind in Germany […] except for that abject one which aims to subject the ruling princes, the existing administration of the Länder, the treasure of hereditary laws and experiences, ownership of property, agriculture, trade and industry, climate, soil, the customs of each individual region, the order of the estates, even the divine notion of law to the chimaera of a sovereign people.62

In contrast to Romantic conservatives, the ‘legitimist-bureaucratic’ faction basically embodied the Restoration politics of the time. Its primary objec-tive was to perpetuate state- absolutist politics and maintain the political and social order created in 1815 as a result of the Congress of Vienna. At the same time they rejected any modern constitutional principles. Trust in the power of reason and the principles of authority, legitimacy and monar-chical sovereignty were characteristic of the partisans of pragmatic state conservatism, which, for obvious reasons, found broad acceptance among the advocates of authoritarian statism in (high) administration and among the ruling class.63

The German liberal movement combined both external ‘European’ influ-ences and domestic traditions. Its hallmark was that of a movement in which tendencies to modernise state and economy went hand in hand with a desire to politicise society.

Among the external elements absorbed into German liberalism around 1815,64 there were rather contradictory experiences such as the efficiency of enlightened despotism in the late eighteenth and early nineteenth century, the Napoleonic reform agenda during the time of the Confederation of the Rhine and reminiscences of limited monarchical power, traditionally guaranteed by the Landstände. It was these ambiguous elements, together with the purifying experience of the French Revolution and the specific socio- cultural framework mentioned above, which gave early German

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liberalism the hallmark of being reformist and loyal to the state. This Geheimratsliberalismus (‘civil servant liberalism’) had various regional centres. Perhaps the centre with the most clout was in Southwest Germany with political thinkers such as Karl von Rotteck. Here, genuine ‘consti-tutional liberalism’ developed, and it is remarkable that this part of the country became the pivotal point of German constitutionalisation processes in the following years. The ideal at the core of this ‘constitutional liberalism’ was a constitutional monarchy: an ideal strongly influenced by the political philosophy of Benjamin Constant.65 His demand for reform, not revolu-tion, reflected the fundamental paradigm of German liberalism. Moreover, Constant’s justification of state power on the basis of individual rights and his emphasis of ownership as the key link between the state and the indi-vidual suited the demands of the bürgerliche Gesellschaft for legal guarantees. However, Constant’s parliamentarism was unacceptable for German liberals who persisted in upholding a dualistic concept of statehood, arguing for a degree of balance between state and society on the one hand, but accepting the de-facto dominance of a monarchical government on the other.

The liberal movement in the Rhineland was similar to that in Southwest Germany, but concentrated on defending the institutions and innovations created during the Revolutionary and Napoleonic Age. The most prominent of these innovations were the Napoleonic legal system, the separation of administration and judiciary, equal taxation and freedom of trade. All in all, Rhineland liberals focused on equality rather than liberty: clear evidence that certain Jacobin traditions of the 1790s though hidden had, indeed, survived.

North and Northwest Germany was the third regional centre of German post- Napoleonic liberalism. Here, the historical justification of political demands and keeping up their own traditions played an important role. The programme of the liberal movement in the German Northwest tended towards forging links with the Prussian reform state and its representatives, headed by Freiherr vom Stein.66 Perhaps the most important liberal repre-sentative in this regard was Friedrich Christoph Dahlmann.

Paradoxically, the main watershed in post- Napoleonic German political thinking was often not ‘conservative’ vs. ‘liberal’, but ‘constitutional’ vs. ‘national’. The constitutional movement had almost been on a par with the national movement until 1815, after which, however, the two started to drift apart. In contrast to the previous era, the national movement no longer had the opportunity to develop, while constitutional reasoning and debate continued to be tolerated, even after 1819. Discussion increasingly revolved around the idea of an absolute: ‘nation’ on the one hand, and ‘constitution’ on the other. The gulf between the national and constitutional movement deepened the more the former became akin to a secularised religion, empha-sising irrational and (pseudo-)religious elements. While this development suggests strong links to Romantic conservatism, any such links weakened as

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the national movement increasingly opposed the authorities’ policies and was forced underground.67

As a result and due to the fact that both conservatism and liberalism shared a common ground for their political programmes, it is not aston-ishing that conservative and liberal views on foreign constitutions did not necessarily conflict. This was particularly true with regard to revolutionary constitutional models.

3.2.2 Perception of revolutionary constitutionalism

At the end of the Napoleonic Wars, the rejection of any radical- revolutionary ideas was distinct, particularly with regard to ideas of French origin. Both national and conservative authors tended to snub anything French, in their eyes synonymous with evil and iniquity.68 This view became even more widespread after the Hundred Days, which just seemed to prove the foul nature of the French nation. Not surprisingly, the constitutional models of the French Revolution were brought into discredit, too. Nonetheless, the rejection in German journalism and literature was not only general and insulting, but also based on evaluations referring to structural deficits of the political systems of the Revolution and especially the Napoleonic Age. In this context, French literature was often used to reveal existing weaknesses and inconsistencies, providing evidence that the intellectual debates in con-temporary France were keenly observed.69

The liberal camp also seemed to share this scepticism against French revolu-tionary constitutionalism.70 There was only a negligible group of liberals who showed some degree of support or understanding for the French Revolution and the corresponding constitutional concepts. This group was most elo-quently represented by Karl von Rotteck, for whom the Revolution remained the dawn of a new and better era for all mankind.71 German liberals who viewed the French Revolution with mixed, even hostile emotions, were more numerous. They sharply criticised revolutionary attempts to cut all historic ties and to base the new system of French government entirely on contempo-rary institutions and concepts. Thus they felt nothing but contempt for the Jacobin Constitution of 1793, and even attacked the Constitution of 1791 as an artificial and ahistorical instrument,72 meaning that only in the 1830s did the 1791 Constitution become a notable point of reference for liber-als.73 Among the most ardent of critics were Joseph Görres, Johann Friedrich Benzenberg, Ignaz von Rudhart and Ernst Moritz Arndt,74 who interpreted the various phases of the French Revolution between 1789 and 1799 in a similar way, however different these were in character. Moreover, in the minds of many Vormärz liberals, the French Revolution and Napoleonism were irreversibly linked, and hence the condemnation of the one led to the condemnation of the other. All in all, German post- Napoleonic liberalism supported certain liberal features generated during the Revolution and the Napoleonic Age such as the abolition of feudal privileges and guarantees

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of civil rights, but disclaimed any connection with the ‘Great Revolution’ in its entirety.75 Therefore, it was only logical that the French constitutions since 1789/1791 were rejected as models, or not even discussed.

In view of the phobia against French constitutional ideas and practices, one could surmise that the Constitution of the United States might have been an alternative model, particularly because American constitutional-ism was actually rooted in traditional notions of ‘mixed government’ and showed much greater consistency since 1776 and 1787 respectively. However, knowledge of and interest in the American Constitution remained modest in the Restoration period,76 despite the fact that ‘America’ as such was far from irrelevant for contemporary journalism and political as well as cultural reflection.77 American constitutionalism, while not considered an imminent danger in the way French models were, did not provide a practical alternative either. The political system of the United States remained misunderstood, particularly because there was, allegedly, a natural contradiction ‘between a democratic and a constitutional- monarchical constitution’.78 It is remark-able that the ambiguity in interpreting crucial principles of the American Constitution went hand in hand with uncertainties regarding its actual text, even in the politico- theoretical debate and in works of distinguished scholars such as Karl Heinrich Ludwig Pölitz, who initiated his celebrated collection of European constitutions with the Federal Constitution of 1787.

Pölitz was well aware of the fact that the American Constitution was ‘European’ in origin and had been inspired by the English system of government. Moreover, he recognised that American constitutionalism had been an influencing factor for the first French Constitution and that European constitutionalism as well as politics could not be comprehended without considering the United States.79 Nevertheless, Pölitz’s knowledge of the American Constitution was limited. This can be recognised by the fact that he not only refrained from consulting the original English version for his translation in favour of a French edition, but also by the fact that he regarded the first two amendments valid, even though they were still pending before state lawmakers.80 Moreover, he failed to mention that there had been two successful amendments in 1795 and 1804 respectively.81 Correspondingly, Pölitz’s positive assessment of the constitutional system of the United States should therefore not be overestimated, particularly as there is no indication that he considered the American Constitution a desirable import product for Europe, let alone Germany: he regarded the 1787 Constitution as an important historical incident; nothing more.

The impact of the American model on German constitutional debate was limited, and even the federal structure of the Constitution, which might have lent itself to the needs of post- Napoleonic Germany, was not inspira-tional. It was only in 1819 that Joseph Görres reflected about transferring the American federal model to Germany,82 and it was not until 1824 that Robert von Mohl put forward a detailed study on Das Bundes- Staatsrecht

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der Vereinigten Staaten von Nord- Amerika.83 But even Mohl did not praise the American Constitution unreservedly, being still caught up in the old liberal division of ‘liberalism’ and ‘democracy’.84

Thus, whereas French revolutionary constitutionalism was discredited for political- ideological reasons, the American Constitution was either ignored completely, or approached with distrust due to the widespread reservation towards ‘democracy’ even among liberals. Given this fact, alternative models which may have been ‘revolutionary’, but comprised a monarchy and had no associations with ‘vile’ French- Napoleonic constitutional politics, had a better chance of being inspirational. The two constitutions especially significant in this respect were the Spanish Constitution of 1812 and the Norwegian Constitution of 1814.

The Spanish Constitution of 1812, often referred to as the ‘Cádiz’ or ‘Cortes Constitution’, was drawn up by the Spanish Cortes during its exile in Cádiz throughout the Peninsular War (Guerra de la Independencia) against the French Empire and the puppet- king, Joseph Bonaparte. The opening session of the new Cortes had been held on 24 September 1810, and after inten-sive debates, in which liberal deputies gained the upper hand,85 the first written Spanish constitution86 was finally promulgated on 12 March 1812. Encompassing ten chapters and 384 articles, the new Constitution kept the Bourbon monarchy and acknowledged the legitimacy of Ferdinand VII as King of Spain, but was clearly liberal in nature.87 Based on a strict separation of powers, the Spanish Constitution – in contrast to the French Constitution of 1791 which followed a functional logic (legislative body, executive body and judiciary) – focused on each constitutional body separately, surprisingly starting with the Cortes and not the King. By setting up a unicameral system, the Cortes was granted extensive rights, including the quasi- monopoly of the legislative process. In addition, parliament had essential rights regarding succession to the throne and regency (Art. 131 Par. 1–6), as well as financial, economic, foreign political, military, administrative, educational, commer-cial and legal affairs (Art. 131 Par. 7–26). In addition, the Cortes secured its own interests with a number of privileges, among them by guaranteeing the inviolability of members of parliament: ‘the deputies shall be inviolable for their opinions; and in no time, circumstance, nor by any authority, made responsible for the same’ (Art. 128). In contrast, the prerogatives of the King were restricted,88 despite the fact that his role was to be still considered stronger than that of the monarchs in the French and Polish constitutions of 1791. But it was the codification of sovereignty residing in the nation, not in the King, which undermined the authority of the crown most, creating a new basis for monarchical legitimacy. It was this issue of popular sovereignty which determined the way in which the Cádiz Constitution was received in Germany and, indeed, prevented the Constitution from developing a similar role as in other parts of Europe during the Restoration, most notably in the Italian states.89

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The proclamation of the Constitution in 1812 had more or less been ignored in Germany, and it was not until Napoleon’s fall that the first com-ments were published, facilitated by the fact that first French translations had become available.90 In late March and early April 1814 the Rheinischer Merkur was the first to present the main regulations of the Constitution, but without comment.91 In view of the events in Spain, where Ferdinand VII repudiated the Constitution (4 May 1814) and arrested the liberal leaders (10 May) only weeks after his restoration in March, a critical evaluation of the events in Spain followed a few weeks later. Surprisingly, however, the Cádiz Constitution was not defended by German observers, who argued that the Constitution was not in keeping with the catholic and monarchical ‘nature’ of Spain and was just a copy of the French Constitution of 1791. Yet what caused offence was the way in which Ferdinand repudiated the Constitution: ‘It is not the constitution itself that we deplore so much […]; rather, it’s the spirit animating the whole business that outrages us.’92 This ambiguity of rejecting neo- absolutism and the reactionary politics of the Spanish king while at the same time criticising the ‘inadequacy’ of the Cádiz Constitution was to be commonplace among many German liberals and liberal- conservatives in the forthcoming years.93 The principle of popular sovereignty and the undermining of monarchical powers were criticised most. Whereas an article summarising the Constitution – published in August 1814 in Die Zeiten – merely noted a ‘basic contradiction’ insofar as the Cortes had actually acted in the name of the King in drawing up the Constitution, but was now trying to make his accepting the Constitution a prerequisite for his accession to the throne,94 Friedrich Christoph Dahlmann was more explicit in the first article of the Kieler Blätter in 1815.95 Dahlmann underlined the fact that constitutional government was the only accept-able form of government and that the ‘new Europe’ was ready for similar constitutions, despite the differences among individual nations and states. The model he had in mind, however, was the English Constitution with a strong crown and its ‘historically-grown’ character. Constitutions based on pure rationality which diluted monarchical power, such as the French Constitution of 1791 and the Cádiz Constitution, had to be renounced, he declared:

What […] the French Constitution of 1791 or the more recent of the Spanish Cortes have specified regarding limitations on royal power turns out to be confusing for the state, disruptive to the government’s power, and inherently untenable.96

Similar to Dahlmann, Johann Friedrich Benzenberg also disagreed with the limitation of royal prerogatives in the Spanish Constitution in his study Ueber Verfassung, published in 1816.97 Appraisals such as in an anonymous article in the 1815 July edition of the Europäische Annalen, praising the

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Cádiz Constitution as being based on ‘wiser, more moderate, better- tested principles’ than the first written French constitution, were in the minority.98 All in all, the liberal reception of the Spanish Constitution and even more so its defence was meagre and therefore it is not astonishing that the conservative desire to dismiss it outright kept a low profile until 1820, when the outbreak of the Revolution in Spain and reactivation of the Cádiz Constitution reanimated and reoriented the debate.99

Apart from the Spanish Constitution of 1812, there was another, and even more immediate, ‘revolutionary-monarchical’ model: the Norwegian Constitution of 1814, which, unlike the Cádiz Constitution, was not annulled shortly after coming into force. The fact that the Norwegian Constitution has continued to remain in force until today not only proves the flexibility and adaptability of the text, but is also evidence for its pro-gressive nature at that time. Applying modern standards, the Norwegian Constitution can be seen as the most advanced constitution of the day. After the Peace of Kiel (14 January 1814), which laid down the cession of Norway from the Danish to the Swedish throne in compensation for Sweden’s loss of Finland to Russia, strong opposition developed almost immediately in Norway. In an attempt to defend Norwegian independence, a Constituent Assembly was convened at Eidsvoll. Here, the Constitution of Norway was adopted on 16 May 1814 by the Storting, which declared the viceroy and heir to the thrones of Denmark and Norway, Prince Christian Frederik, elected King of Norway.100 Despite the fact that the Norwegian drive for full sovereignty failed in the ensuing military campaign in which Norway was forced to enter into a union with Sweden (Convention of Moss, 14 August 1814), the ‘Eidsvoll Constitution’ was left largely unaltered and a slightly revised version was passed on 4 November 1814.101

Its text was inspired by the American Constitution of 1787.102 Therefore it is not surprising that the Eidsvoll Constitution – regardless of its monar-chical character and the fact that royal prerogatives were enumerated right at the beginning of the text – consisted of a good number of ‘democratic’ elements such as universal suffrage for all males 25 and over,103 the abolition of all class distinctions104 and comprehensive fundamental rights, for example habeas corpus, freedom of the press, freedom of expression, freedom of trade, and guarantee of property.105 Above all, the Constitution embodied the principle of popular sovereignty, manifest in Art. 49, stating that: ‘the people exercise the legislature’, and in that the king had a mere suspensive veto which could be overridden by the Storting (Art. 79).106

On account of its progressive nature and democratic impetus it was therefore highly unlikely that the Norwegian Constitution of 1814 would become an immediate reference point for Germans sceptical of ‘revolution’ in any way, shape or form. The main hindrance was however the fact that little was known about political developments north of the German border. Since Sweden’s loss of status as a leading European power in the eighteenth

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century, interest in Scandinavian affairs had dwindled. The Swedish Constitution of 1809 – following the disastrous outcome of the Finnish War, whereby King Gustav IV Adolf was forced to abdicate – received hardly any attention at all. This was notwithstanding a number of innovative features in the 1809 regeringsform, such as the establishment of a well- balanced separation of powers between the executive (the king) and the legislative body (the Riksdag of the Estates), by which king and parliament shared legislative power.107 The same fate befell the Eidsvoll Constitution of 1814: even though the text was translated into German in 1815,108 a critical analysis or debate of the Constitution did not ensue.

Thus, the concrete relevance of revolutionary constitutionalism as a model in Germany around 1815 can be summarised as negligible. The idea that a revolutionary constitution – such as the above – could serve as a model for the German states was quasi nonexistent, the main obstacles being the underlying democratic concepts of sovereignty and the dimin-ishing of monarchical power. If there was any intellectual response at all to such revolutionary constitutions,109 it was mainly negative. Both conservatives and most liberals shared the conviction that radical constitu-tional models were unsuitable and would be even dangerous for Germany. More attractive than revolutionary models with their connotations of ‘disorder’, ‘radicalism’ and ‘violence’ was that constitution which had been praised throughout the eighteenth century and was a symbol of stability: the English Constitution.

3.2.3 Perception of the English Constitution

In 1814/1815, the English Constitution had an excellent reputation throughout Europe, undoubtedly powered by Britain’s role as leading world power, the stability of its political system throughout the Revolutionary Age110 and the economic boom it was enjoying. These key factors were considered to be directly linked with the constitution per se. The English Constitution, having fallen out of favour for a while, was now once again the most influential foreign point of reference among German liberals in the post- Napoleonic era. The appeal of the English Constitution lay not least in the fact that because it was not put down in writing, the actual ‘soul’ of the Constitution was left open to interpretation. The English model played a particularly important role in north western Germany with its traditionally close relations with Britain.111 One of the most prominent advocates of the English Constitution was Dahlmann, for whom the British model was an ‘ultimate nous’ in the development of European constitutionalism:

all those who acknowledge the value of a practical structuring of the state, [are] agreed that it is in England that the foundations of the con-stitution to which all European nations aspire are best constructed and preserved.112

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What he found particularly appealing was the bicameral system, composed of two counterbalancing chambers,113 and, above all, the crown equipped with powerful prerogatives strengthened by the principle of ministerial responsibility:

At its head a king, who holy and inviolable as he is, is never burdened in the slightest by responsibility because he allows his closest counsellors to be accountable and indictable to the people; nothing can be forced upon him by the chambers, and he only consents to what he deems to be for the good of the many: in brief, he is only restricted as a wise man would restrict himself.

The role of the king in the political system, limited and powerful at the same time, was summarised by Dahlmann as follows: ‘The king cannot do everything he fancies, but he is not obliged to do anything he does not want to do.’114 Dahlmann’s view, which bore striking resemblance to Burke’s views on the English system of government, was borne out by many other German liberals and liberal- conservatives in the Vormärz period.115 The English Constitution represented ‘the surest means for guarding against political excesses’ and ‘the best collection of methods in accordance with experience for protecting justice among selfish and excitable people’.116 Even Freiherr vom Stein – like many of his contemporaries – was aware and critical of the flaws in the English political machinery, such as inadequate parliamentary representation, government and opposition constantly at variance with each other, Catholic discrimination, the antiquated judicial system, or the Corn Laws.117 However, he felt that these disadvantages were more than compensated for by the advantages: the judicious national character of the political system, the public spirit and above all the English Constitution.118 But irrespective of the fact that the English model was a common reference point and despite widespread opinions that ‘it is and remains England where the ideal of a good constitution has been best real-ised’,119 any knowledge about the English model was taken from only a few key authors.

The most important sources of information were certainly Montesquieu and Blackstone.120 It was the notion of separation of powers which was considered to be the crucial characteristic of the Constitution, and in this context Blackstone was no less important than Montesquieu.121 Jean Louis Delolme was a leading figure in the dissemination of Montesquieu’s and Blackstone’s political thought, and his work on the English Constitution (1791)122 had been translated into German as early as 1776: just one year after its publication in England. Delolme’s study was perceived as a warning against a purely parliamentary government and as a hymn of praise for the powerful role of the king within the British system.123 From this point of view, it was easy to regard the crown as being a kind of ‘ supra- constitutional

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body’. Indeed, even Benjamin Constant’s doctrine of constitutional monarchy was to be (mis-)interpreted along these lines. Separation of powers was seen to be of the utmost importance, but at the same time, Constant defined the crown as a kind of fourth power: ‘The royal power is, so to speak, the judicial power of the other powers.’124 Thus, concerning the extent of the power of the king, the defenders of the English Constitution could also refer to the authority of Constant, whether legitimately or not.

Having to rely on a handful of eminent foreign scholars for the interpre-tation of the English model was due to the scarcity of home- grown studies. German literature on Britain in the late eighteenth century rarely went beyond descriptive travelogues. The first attempt at a scholarly analysis of English constitutional law was not published until 1806, namely Theodor Anton Heinrich Schmalz’ Staatsverfassung Grossbritanniens.125 A sophisti-cated study of the British polity by Ludwig Freiherr von Vincke followed in 1815, which, however, tended to focus on the country’s administration rather than its constitutional order.126 The shortage of German sources in book form was in part compensated for by the omniscience of Britain and the British political system in the daily press and in journals. It is remarka-ble that considering the keen interest in English affairs – manifest in rather intimate knowledge about the British press – ‘personal views and experi-ence’ played only a minor role in the way the English Constitution was perceived. Even the most liberal scholars of the day and so-called experts on the English political system had never even been to the British Isles (for example, Dahlmann), and those who had, found that the experience had left no lasting impression (for example, Welcker and Friedrich Wilhelm August Murhard).

Altogether, the German view on Britain remained ‘filtered’, which explains the sketchy picture of the English Constitution not only among its supporters, but also among its critics. Indeed, not all German liberals and even fewer con-servatives were convinced of the desirability or practicability of the English model. Most criticism was judicious and referred to the practical difficulties of implementing the English model. Two lines of argument held sway: those who argued that German political life was simply not ‘ripe’ enough to adopt an English- type constitution; Ignaz Rudhart, for example, one of the lead-ers of Bavarian liberalism in the post- Napoleonic era, stated frankly in 1816 that on account of Germany’s political ‘immaturity’ it would be impossible to introduce the ‘English liberty and Constitution’.127 On the other hand there were those who argued that a ‘German’ constitution shaped on the English pattern would be tantamount to demanding that not only the char-acter but also the history of the nation be analogous to that of the English people. Back in 1793 August Wilhelm Rehberg had pointed out: ‘To wish the English Constitution on a people is essentially the same as desiring that not only a people’s nature, but also their history be exactly the same as that of the English.’128

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And it was exactly this line of reasoning which appeared repeatedly, particularly among German conservatives. In his Darstellung der innern Verwaltung Großbritanniens, Ludwig von Vincke conceded that the English Constitution was ‘a great masterpiece in the separation and combination of powers, and the union of all for the common good’.129 However, he doubted whether this model could be easily transferred to Germany or any other country.130

Focusing on the sheer uniqueness of the British constitutional system and hence its non- transferability became commonplace in conservative constitu-tional rhetoric in the Vormärz.131 To characterise the Constitution wholesale as a peculiar, though admirable, phenomenon of English history was, for obvious reasons, both a compelling and convenient argument against such a model. Consequently, the unloved doctrine of a separation of powers and (possible) desire to strengthen the legislative body to the disadvantage of the crown were also to be rejected.132

As a result, there was no need for heated discussion on or a rebuff of the English Constitution after 1814/1815. If there were any major objections to the British model, they came from individual liberals such as Karl von Rotteck. Criticism stemmed from the conviction that because the political system in England had developed over a long period of time, it was incon-sistent, anachronistic and basically weak. This disapproval stressed the power of reason rather than historicism and tradition as crucial elements for a constitution133 and followed up Abbé Sieyès’ verdict that the English Constitution may be ‘traditional’ in nature, but that this alone was not enough to make it a benchmark constitution, adding that English parlia-mentary representation was antiquated and iniquitous, with the nation a mere bystander.

However, such criticism, also to be found in the works of other foreign political thinkers,134 was marginal in Germany. In general, the English Constitution was held in high esteem, and a number of German intellectuals even regarded the idea of ‘imitating English institutions in Germany’135 as advantageous and an immediate objective. And albeit that others, especially conservatives, doubted whether the import of the British model to Germany would be possible or desirable, even those would quite unan-imously agree that the English Constitution was effective, valuable and guaranteed stability at least in Britain. Thus, unlike revolutionary constitutions, the English model did at least have positive connotations and provided a tangible point of reference: however, this model was not the only point of reference.

3.2.4 Perception of constitutional monarchism

Apart from the English Constitution, there was a third foreign model which had the potential to attract contemporaries in post- Napoleonic Germany: ‘constitutional monarchism’ as put into political practice in Bourbon France, as well as the United Netherlands and the new Kingdom of Poland.

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The political change in France of April 1814 was observed with keen interest by the German press: from Napoleon’s deposition to the restora-tion of the Bourbon monarchy and the aim to set up a new constitutional order.136 The Senate’s plan to make Louis XVIII’s return conditional on his recognising the ‘Senatorial Constitution’ met with tremendous disapproval in Germany. Due to the obvious scepticism about the Revolution, the fact that the Senate’s draft was based on the principle of the sovereign nation alone was an immediate cause for concern. In the same vein, the practical value of the constitutional draft met with suspicion, if not hostility. The Rheinischer Merkur, for example, condemned the Senatorial Constitution as: ‘the funniest, most fatuous, unsuitable and trivial that has ever been seen in this era’ and scathingly attacked provisions of the draft considered to be abominable.137

Following widespread French criticism of the draft, the Merkur found fault not only with the Senate’s obvious aim to strengthen the political and economic role of its members,138 but it also questioned the legality of Napoleon having been deposed, regardless of how authoritarian and unjust his rule might have been.139 Under these circumstances it is not astonishing that the German press took a favourable view of the failure of the Senatorial draft. At the same time, the setting up of the Charte constitutionnelle in the wake of Louis’ Declaration of Saint-Ouen140 was observed with keen inter-est, accompanied by a close examination of the French debate and the printing of several contemporary French works on the topic.141 German translations of the Constitution were available almost immediately after the proclamation of the Charte on 4 June 1814,142 soon to be followed by German and bilingual book versions of the text.143 It should be mentioned that the German translations of Charte constitutionnelle were inconclusive as to how it should be translated: constitutionelle Charte, Constitutions- Urkunde, Verfassungs- Urkunde or Grundgesetz.144 One may therefore assume that in the first half of the nineteenth century, at least, the terms Konstitution and Verfassung are not necessarily indicators of political views, even though there was something more revolutionary about the former (Konstitution) than about the latter (Verfassung).

Despite interest in the new French Constitution as such, German com-mentators were wary of unreserved praise. The Charte, though considered to be ‘better, more sensible, more orderly and coherent in its form than the Senate’s monstrosity’, was described as being vague and timorous, because ‘everything depends on the King’s good will in the end’. One of the main reasons for this scepticism was the central role of the Crown, especially in the legislative process, which basically put parliament in a straight jacket:

[T]he essence of all power resides in him, and only the form is given to the nation. He initiates laws, and the chambers are to discuss and decide upon them; one might think that they only had a veto, but no mention is

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made of this, everything in this regard has been left in a useful penumbra. Nothing is said what will happen when one of the chambers or both reject the law; rather it is said that the king sanctions and proclaims the laws, he has the beginning and the end in his hands; only the hollow talk in between the two is freely given, the chambers seem actually to be no more than an extended privy council.145

In addition, the regulations concerning the accountability of the ministers, limited to high treason, were regarded as being inadequate. Similarly, those regulations pertaining to electoral law and prescribing a high census were thought to be deficient, since they excluded men of letters from public affairs. Accordingly, the general assessment of the new Constitution was far from positive: ‘All things considered, the entire Constitution is based on the formula “I, the King,” and refers back to it; no one should be under the illusion that the freedom of the nation is thereby guaranteed in the slightest.’146

While the legitimate right of the Bourbons to the throne was not doubted,147 there was disappointment regarding the concessions Louis was willing to make in 1814. Indeed, expectations had been high before the proclamation of the Charte, and Louis had been described as open- minded and well versed in classical and modern public law, his politics as liberal and philanthropic. His exile in England had been considered decisive in shaping his political thought, and it had been assumed that the English system of government would cross the Channel.148 Thus, one can argue that reserva-tion towards Louis XVIII’s approach to the Constitution derived primarily from the fact that he had not implemented the British Constitution in France, but established a constitutional order based only partially on the British political system.

However, German views on the French Constitution of 1814 should not be generalised, but seen in context. Basically, scepticism did not stem from the lack of ‘democratic impetus’ in the Charte or doubts that the Constitution was not progressive enough as such, but more from the conviction that the Charte in its present form could not guarantee stability in France. There was widespread belief in Germany – and other parts of Europe, too – that in restoring the Bourbon dynasty in France, more concessions were needed regarding the country’s ‘revolutionary spirit’, and that a constitution based on a mutual agreement of king and country was a conditio sine qua non. It is only this proviso together with the line of French argumentation which explains why even conservative newspapers such as the Teutsche Blätter found fault with the Charte and criticised the fact that it was in actual fact not a contract in the true sense of the word: ‘according to its most basic conception, a constitution [is] a contract between the governing and the governed part of a people, and as such requires the free consent of both.’149 There was doubt whether Louis, ‘a poor, old, weak man’, however cautious,

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astute and dignified he might be, would be able ‘to master the yawning mountain of fire’ (that is, France) with a tool like the Charte constitutionnelle, particularly because the ‘old religious awe towards the […] royal dynasty has been entirely obliterated in the hearts [of the French people]’.150 And indeed, Napoleon’s interlude of the ‘Hundred Days’ just a few months after the first Restoration seemed to corroborate existing apprehensions and con-firm the conviction that it was the military power of the Allies alone which would keep the Bourbons on the French throne.151

Yet no matter how critically Louis’ Charte was judged to be in German debate around 1814/1815, the Constitution was not rejected outright. While many contemporaries regarded the Constitution as being unsuitable for France, the Charte’s political concept – which basically aimed at creating a constitutional state dominated by a strong monarch – did reflect mainstream political thought in post- Napoleonic Germany and probably served as an inspiration for the constitutionalisation of the German states. For a good number of political thinkers, such as Jakob Friedrich Weishaar152 or Rotteck, this was indeed the case. However, what prevented the Charte from becom-ing a model – at least for (moderate) conservatives, in the same way as the English Constitution was for many liberals – was another factor: its French origin. On the whole, spokesmen and newspapers were rarely Francophile in this period, and anti- French sentiment abounded in all political camps. There was hesitancy not only towards French revolutionary concepts, but French constitutional ideas in general. Scathing attacks, reproaching France for having freedom and representative government only on paper, whereas ‘the thing itself’ was ‘never there’,153 or even denouncing ‘the poison of the dangerous principles which now again are spread from France as they were twenty five years ago’154 were more the rule than the exception. If the example set by the first monarchie censitaire had found no support, it was, above all, for nationalistic reasons.

While the French Constitution of 1814 was – and remained – negatively tainted in public debate, other monarchical- constitutional models pre-sumably had better chances. However, the other conceivable models, the Constitution of the United Netherlands and that of the Kingdom of Poland, were up against the ignorance of the German public.

In the new independent state of the Netherlands, a monarchical- constitutional draft was passed even before the Charte constitutionnelle in France, namely on 29 March 1814 (Grondwet voor de Vereenigde Nederlanden). William VI of Orange, instated in December 1813 as sovereign only upon his promising to safeguard a free constitution, immediately appointed a number of electors who approved the Constitution, which had been written by a commission headed by Gijsbert Karel van Hogendorp. It was only after the Congress of Vienna, however, that William finally publicly announced the Constitution on 24 August 1815, now officially entitled Grondwet voor het Koningrijk der Nederlanden or Loi fondamentale du Royaume des Pays- Bas,

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which extended the realm of the Kingdom to encompass the territory of Belgium.155 Despite the fact that the Constitution of the United Netherlands was agreed upon rather than imposed156 and notwithstanding the less domi-nant role of the crown compared to the Charte,157 there is no doubt about its monarchical- constitutional character. The Constitution, encompassing 234 articles set out in 11 chapters and three transitory articles, provided the king with extensive powers, among them the right to decide unilaterally in foreign and military affairs (Art. 56–9) and a full legislative veto (Art. 70, 118).158 Ministers were answerable to him alone, while the two- chamber parliament, the States- General, exercised only limited power. At the same time, a series of liberal concessions were made, including a bill of rights, with the right of petition (Art. 161), habeas corpus (Art. 167–70), freedom of worship (Art. 190) and freedom of the press (Art. 227).159

Despite the impact the Grondwet might (theoretically) have had on German constitutional discussion, it was only in 1817 that the Constitution of the United Netherlands became available in print form in Germany. In the first edition of his Constitutionen der europäischen Staaten seit den letzten 25 Jahren Pölitz had to concede that ‘the original of this constitution exists at no German bookseller, nor has a complete translation appeared yet in any kind of public paper’.160 The United Netherlands’ constitutional system had only been given minor attention by the German media, as was common with Dutch politics in general, still regarded as being of marginal importance. One of the rare examples of a newspaper article reflecting the ongoing constitutionalisation process in the Netherlands was the Rheinischer Merkur of 29 March 1814, in which the constitutional draft was praised as combining the authority of the Crown with federal concessions:

The constitutional draft manages in the best way possible to unite all necessary power in the hands of the princes, while each and every part of the country has the greatest freedom in its own particular institutions, and the ability to govern itself according to traditional customs and in keeping with the most enlightened citizens.161

A more detailed analysis and evaluation of the Constitution did not come about, nor was it undertaken in the months and years following. Under these circumstances, the Grondwet could not become a noteworthy point of reference in practical terms.162

The Polish Constitution of 1815 faired no better. During the Congress of Vienna, Tsar Alexander I of Russia pledged to issue a constitution for the newly created Polish state under Russian domination, with Tsar Alexander their king. On 27 November 1815 (15 November according to the Julian calendar), the Constitution of the Kingdom of Poland was proclaimed by the Tsar both in its original French and a translated Polish version.163 The Constitution with 165 articles in seven titles, laying the foundations

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for a monarchical system linked to the Russian Empire, was unmistakably influenced by the French Constitution of 1814. The parallels to the French Charte were indeed striking, most obviously in the constitution’s original title: Charte constitutionnelle du royaume de Pologne de 1815.164 In both cases the monarchs – Louis XVIII in France, Alexander I in Poland – had been actively involved in the editing of the text,165 and both constitutions were pure constitutions octroyées: given by the ruler and neither voted upon by a parliament nor confirmed by a popular plebiscite. The royal preroga-tives were practically identical. The Charte of 1814, as well as the Polish Constitution of 1815, codified the predominant role of the king in the political system, including legislation. The monarch had the right to call, postpone and dissolve parliament, was the only person with the right to initiate legislation, his approval was needed to pass any laws, and he had the right to temporarily annul legislation. The bicameral parliament (Sejm) and the electoral system for the second chamber, based on property qualifica-tions, bore striking resemblance to the French model, too,166 and even the wording of several articles were identical.

However, little of this if at all, was known among the broader German public. A first translation of the Polish Constitution was published in September 1816 in Die Zeiten.167 But a closer examination of the text, though promised,168 never came about, and only sporadic references to the Constitution of 1815 are to be found in the German press in the second half of the 1810s.169

On the whole, the relevance of constitutional monarchism, regardless of source or nationality, played a less significant role in post- Napoleonic German political discourse than one might expect on account of the prevail-ing conservative mood. There was no immediate outright rejection, but no strong acceptance either. The French Charte was observed with interest at the beginning of the Bourbon Restoration, but had a negative connotation due to its Frenchness, thereby hindering an unbiased and effusive percep-tion of the document. The Dutch and the Polish Constitution, on the other hand, went largely unnoticed and were hardly mentioned in debates. Under these circumstances – with revolutionary concepts fundamentally repudi-ated, constitutional monarchism only perceived in a limited way, and even the English Constitution only an immediate model for a small number of intellectuals – one might preclude that not one of the foreign constitutions could be a universal point of reference. Yet, there was a candidate which might well claim the status of being ‘universal’, namely the vague concept of landständische Verfassung.

3.2.5 Discourse on Landständische Verfassung

Favoured by widespread jingoism around 1814/1815, the call for a ‘German(ic) constitutional solution’ and the rejection of foreign models became louder among both conservatives and liberals. The main argument

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in the debate on the English Constitution was that a constitution had to be ‘organic’. Following this logic, it was reasonable and therefore essential that a ‘home-grown’ constitutional order based on tradition – here ‘Germanic’ – be developed:

particularly now, when so much time and effort is being spent on constitutional drafts, we seem to have almost forgotten how to produce one which is practicable and popular. Everything usually revolves around a few general abstract notions of power and the juxtaposition of strengths and weaknesses […]; yet, what is missing is the flesh and blood on the bones, life and movement, character and singularity. There is no old German [Constitution] which would not have all this to a higher degree than these new works, which like the upper estates have the same expres-sion everywhere.170

Discourse ran parallel to the debate on a new Reichsverfassung which would create a unifying supra- national bond for the whole of Germany; a debate, which had started suddenly with the dissolution of the Confederation of the Rhine and the end of French hegemony. Both the national and Reichsverfassung discourse were underpinned by the conviction that only a stable constitutional order would guarantee German national power: ‘What is absolutely essential, and what has to be legally defined first and fore-most by the constitution, is inner cohesion and a united front to foreign countries.’171 A popular idea was that the future Reichsverfassung and the constitutions of the individual German states should be compatible.172

The cornerstone at the centre of German debate was a landständische Verfassung: a term commonly used in publications of the time. Yet despite, or perhaps even due to, the inflationary use of the term, just what a landständische Verfassung was became blurred. There was unanimous agreement only in that the monarchical and dynastical order should be kept, while the people be involved in the political decision- making process, thus avoiding any kind of despotic rule: a right which was considered a just reward for the hardships of the previous era. The 31 July 1815 edition of the Allgemeiner Anzeiger der Deutschen came up with an answer to the key question: ‘What is the least the people can demand when a corporative constitution is set up?’, as follows:

We are a pensive and patient people. We are by tradition used to regarding and revering our princes as rulers. But we believe that due to this loyalty to our princes and the sacrifices made in the long and bloody war with France for their and our own freedom, we do not deserve to be taxed so unfairly and treated so indiscriminately by them.173

Apart from this consenus of opinion, there was not much of a general agreement, but a wide range of concepts of landständische Verfassung.

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The German Federal Act of 8 June 1815 did not help in clarifying the term with its nebulous Article 13, stating that ‘All Confederal States will be given a landständische constitution’.174 Thus, three years later the Neuer Rheinischer Mercur stated openly and frankly that it would have been desirable if:

the Federal Act itself had explained clearly and plainly for everyone the meaning of the word: landständische constitution. All unnecessary provo-cation of those passionate feelings deep in the heart of many a German would have been avoided; passions and dreams which could not be and were not fulfilled by sovereigns.175

Sticking to pre- revolutionary codes and traditions would have meant that any landständische Verfassung would be a system of corporative represen-tation, in which delegates of different estates, that is representatives of privileged groups only, take part in the legislative process not as one united legislative body, but in single committees. In this way, the main legislative instrument of decision-making would not be majority vote, but voting by orders.176 Such a system also implied limited authority of the Landtag, which, historically, had the right to co- determine taxation, but rarely anything else.177

There were conservative voices in post- Napoleonic Germany who did support a ‘restrictive’ interpretation of landständische Verfassung, demanding an advisory and consultative rather than a legislative body in the narrower sense. An article in the Allgemeiner Anzeiger of October 1815, for example, stressed that the power and independence of a sovereign prince was incompatible with a strong Landtag. Accordingly, any attempt to restrict monarchical power and to confine traditional rights was considered ‘unjust’, ‘revolutionary’ and a ‘criminal disturbance’ of public affairs.178 It was felt that ‘enlightened men’ should be elected in every province and afterwards their election confirmed by the monarch; men who ‘in the name of their fellow citizens and subjects […] submit requests and other matters to the prince and his ministers, as often as circumstances require’.179

Such interpretations were in the minority, as were the voices – even if perhaps more numerous – demanding a revival of the former Landtage,180 represented, for example, by the group of so- called Altrechtler (‘Representatives of the Old Law’) in Württemberg. On the whole, the interpretation of land-ständische constitutions was genuinely ‘modern’ and incorporated demands for extensive political and fundamental rights. Those beliefs reflected the fact that German society in the early nineteenth century no longer had the character of an altständische Gesellschaft (‘society of the old estates’), but had actually become a neuständische Gesellschaft (‘society of the new estates’) since the mid-eighteenth century.181 Characterised by a diversification of the socio- political system of the Ancien Régime, society found itself in transi-tion between the old feudal order and the new industrial age.182 Due to the

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‘pooling’ of constitutional ideas which had been generated over the previous decades, it seemed logical that a landständische constitution was no longer perceived as it might have been in pre- revolutionary times. Hence, it is hardly surprising that in German debate around 1814/1815 no strict dif-ferentiation was made between a ‘representative’ and a landständische constitution. Widespread opinion that Landstände should be elected ‘by the whole people’, thus contradicting the basic principle of any traditional form of corporative government, was an indicator of the muddled use of terms at the time.183 Essentially, the whole discourse on landständische Verfassung did not aim to restore any previous form of government; in fact, landständische Verfassung was not even considered to be a ‘model’ in the narrower sense of the word. The term was a mere catchphrase for existing pro- constitutional attitudes in Germany, expressing the wish not to jump on the band waggon of foreign political models, but to find a solution which would be able to meet German needs and traditions. The first written landständische constitu-tions were thus received with a great deal of enthusiasm, but not without a degree of suspicion as well.

The first landständische constitution in post- Napoleonic Germany – also the first written constitution after Napoleon’s fall – was that of the Duchy of Nassau, proclaimed on 2 September 1814 even before the Congress of Vienna.184 The Constitution guaranteed property rights, religious freedom and the freedom of the press. But otherwise it granted parliament only limited involvement in legislation, particularly in budget matters and levy-ing taxes, a reminder of the old Reich. Moreover, access to the legislative body was still bound to restrictive socio- economic criteria albeit now in a bicameral system replacing the old three- curia-system. Strong disapproval followed hot on the heels of the Constitution, even though its proclama-tion was welcomed.185 At the same time, the disproportionate composition of the Landtag, manifest, for example, in the neglect of the peasantry, was condemned.186 ‘Fair’ representation was at the top of the list of demands, and the structural segregation of the estates into different legislative bodies was questioned.187

What became a crucial reference point for German debate on landständische Verfassung in the following years was the dispute about the Constitution of Württemberg, lasting from 1815 to 1819.188 The Verfassungsstreit found an overwhelming echo in the German press and served as a testing ground for the different sides in the constitutional debate.189 Ongoing constitution-alisation processes in other German states contributed to the steady and intensive constitutional discussion,190 which, however, remained ambiva-lent since the classical language of Landstände continued to run parallel to the contradictory demand for modern institutions and a modern form of political representation.191

A newspaper article published in November 1818 summarised the status of the discourse on landständische Verfassung after 1814/1815 in stating that

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the desire for such a constitution had become commonplace throughout Germany, but admitting at the same time that there was no agreement on the ‘political position that the Landstände take in the state body, and about how their rights compare with those of the regent’.192 This question pertained to political theory, but even more so to Realpolitik. The chances of achieving any kind of acceptable constitution, based on foreign models or on landständische principles, depended on the willingness of the ruling class to transform politico- theoretical principles and ideas into tangible constitutional projects.

3.3 Political reality and the ruling classes

In the course of the French Revolution, the political order of the old Reich suddenly underwent drastic change. The treaties of Basel (5 April 1795), Campo Formio (17 October 1797) and Lunéville (16 March 1801) were historical landmarks in this regard. The most important and final break in terms of international, constitutional and canon law, however, was the Reichsdeputationshauptschluss (formally the Hauptschluß der außerordentlichen Reichsdeputation, or ‘Principal Conclusion of the Extraordinary Imperial Delegation’), passed on 25 February 1803 by the Reichstag (‘Imperial Diet’).193 This resolution was to be the last significant law enacted by the Empire before its dissolution, establishing a major redistribution of territorial sovereignty within the Empire achieved by the secularisation of ecclesiastical principalities and the mediatisation of secular principalities. The Reichsdeputationshauptschluss was a key step towards ‘defragmenting’ the Holy Roman Empire, traditionally composed of a multitude of independent territories and free cities, in favour of a smaller number of Mittelstaaten (‘middle states’). As a result of Napoleon’s initiative, these Mittelstaaten were united in the Confederation of the Rhine (established 1806)194 to form a political counterbalance to the dominant German powers: Austria and Prussia.

Whereas the Confederation of the Rhine remained a mere episode of history, the rearranging of the German political landscape during the Revolutionary and Napoleonic Wars was now irreversible and determined political and constitutional activity in the post-1814 period. In the Napoleonic Age, the need for political change had become plain. Especially in the Southern German states, which – at least de jure – had achieved the status of fully sovereign states, reforming the political system became a necessity. Above all, these states now faced the challenge of ‘integrating’ what had formerly been a ‘hodgepodge’ of episcopal and monastic, princely and noble lands, privi-leged imperial cities and semi- independent towns. The task was to 1) create a single administrative and political body with standardised laws, 2) create some kind of collective identity among the different regional and social groups (Landesbewusstsein), not to be confused with German nationalism,

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and 3) solve the problem of the former Standesherren (mediatised nobles) durably.195 But even in those parts of Germany where changes in territorial borders were limited, reform projects went ahead, boosted by Napoleon’s ambitious reform agenda manifest in model- states such as Westphalia, Berg and Frankfurt.196 Paradoxically, the dawn of the ‘modern age’ in Germany did not, for the time being, mean democratisation of the constitutional sys-tem, merely a strengthening of monarchical power and bureaucracy. To be able to respond to the challenges of the time, enlightened absolutist admin-istrative reforms favouring centralised ‘state absolutism’ were at the top of the list of priorities during the Napoleonic age.197 The idea of guaranteeing political rights as a ‘bonding agent’ was only of secondary importance. Due to this fact and in view of the dynamism of public constitutional debate in 1813/1814, the constitutional question became increasingly pressing for German sovereigns at the end of French hegemony.

In contrast to England or France, which had been nation states when they first experienced constitutional government in the modern sense, Germany’s political system in 1814 was far from being homogenous and had no anchor point. Parallel to setting up some kind of national political order, constitutional institutions had to be created at the level of the single states to deal with the challenges of soaring scientific and technical, indus-trial, economic, social and political changes. Existing demands for political participation and legal emancipation had to be channelled one way or the other. The same went for the growing national movement. European politics, the national question and constitutional matters were thus inseparably bound right from the beginning. The big question in 1814 was in what way national unity, the single states’ drive for independence and the wish for political liberalisation could be amalgamated within the fine margin between revolution and reaction.

Public expectations were therefore high with regard to the Congress of Vienna.198 The Russian- Prussian Proclamation of Kalisch of March 1813 had already promised a constitution for Germany,199 and this in itself made it almost unthinkable that German rulers could repudiate the promise of constitutional government in Vienna. There was no unanimous agreement, however, regarding the interpretation of this promise. Consequently, the constitutional debate during the Congress of Vienna was more complicated than had been expected.200 In the initial phase of the Congress, that is until the ‘ Polish- Saxon Crisis’ at the end of 1814,201 Austria and Prussia as the most important German powers wanted to establish a strong federal system. In creating authoritative federal institutions, for example federal courts, and in enforcing traditional forms of Landtage, statehood and sovereignty of the individual states were to be restricted to promote an Austro- Prussian pro-tectorate over Germany.202 Hardenberg and Metternich203 wanted to restore the old aristocratic elite of the Reich, which had suffered political and eco-nomic decline in the Napoleonic Age, and thus aimed to renew the situation

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which had determined the inner power structures in the Empire. At that time, the rights of the Landstände had been settled in the Reichsverfassung and were protected both by the Emperor and the supreme court of the Reich to keep the sovereigns of the constituent states in check.204 In 1814, the Landstände were to regain their status of a ‘parallel authority’ to the German princes in order to curtail monarchical power.205 If there were hard- core advocates of traditional corporative government, these were Metternich and Hardenberg.

Yet, their plans for a political quasi- restoration of the old Reich met with stiff opposition from the other German states and especially the Mittelstaaten who feared – quite legitimately – they would have to forfeit independence and power. Hacke, the Baden envoy in Vienna, called the initiative ‘an act of submission of all German states under Prussia and Austria’, which would lead to a ‘division of Germany between Austria and Prussia; […] all our princes could do to maintain their independence would be just feeble twitchings’.206 In view of such clear resistance and given the growing dishar-mony between Prussia and Austria, Hardenberg’s and Metternich’s initiative was doomed to failure.207

The goals of the sovereign German princes contrasted significantly to that of Austria and Prussia: while Austria and Prussia envisioned a federalisation of Germany and a return to pre- revolutionary constitutional conditions, the German princes aimed to establish a weak federation to preserve the territorial and political sovereignty of their states. They were, therefore, willing to make certain constitutional concessions, but on their own terms. Representatives of 29 smaller German states clearly expressed this position to Metternich and Hardenberg, in a memorandum dated 16 November 1814. This document stressed the sovereignty of the individual German states (Souverainetät der Teutschen Staaten) and their indisputable right to be actively involved in debate on a German constitution.208 The signatories agreed that ‘each and every kind of arbitrariness shall be prevented by the establishment of landständische constitutions in the individual German states, just as the federal constitution accomplishes for the whole’, and that the Landstände should have:

1. the right to approve and regulate all public dues necessary for state administration;

2. the right to consent to newly decreed general state laws;3. the right to co- supervise the spending of taxes for general state purposes;4. the right of appeal, especially in cases of malpractice by state civil serv-

ants, and all kinds of abuse.209

However, the memorandum made it perfectly clear that ‘the appropriate establishment of the ständische constitution, according to the character of inhabitants, localities and traditions, will be left to the individual states’.210

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In the end, the German Federal Act of 8 June 1815 was written proof of the German princes’ striving for sovereignty and autonomy.211 The political order set up by the Bundesakte ensured the constitutional laws of each member state would not be infringed upon at the federal level and confined itself to establishing a loose confederacy, based on the need for stability. The only de jure exception to this rule was Article 13, with the famous regula-tion that ‘All Confederal States will be given a landständische constitution’. Tellingly, however, this was not only the shortest article of the whole Federal Act, but was also the vaguest. In actual fact, the article was a hazy declaration of intent, particularly because a timeframe was missing. Materially, the article was limited to confirming the principle of constitutional government as a must for legal rule, without a clear outline as to the composition, compe-tence, nature and guarantee of the representative bodies. Such vagueness left the door open for the German princes to create constitutional orders in line with their own ideas and prevent their constitutions being judged against a ‘model’ at the federal level. The term landständische can be interpreted as ‘a rudiment of constitutional efforts […], which amounts to a political- social restructuring of Germany according to the basic principles of the old German Imperial Constitution’.212 It was hence in keeping with the Zeitgeist by implying that there was no need to ‘copy’ foreign models and suggesting that a ‘German answer’ could be found for the constitutional challenges.213

In general, ‘constitutional vagueness’ became a signum of the Congress of Vienna, not only regarding the political future of Germany as a whole, but also concerning individual non- German states such as Poland. In Article 1 of the Act of the Congress of Vienna214 it was agreed that the new Kingdom of Poland should receive a ‘constitution’ laid down by its new ruler, Tsar Alexander I. In addition, those Poles living under Prussian and Austrian rule should also be granted ‘representation’ and ‘national institutions’. However, there were no clear guidelines as to how this would be achieved. In fact, the actual implementation of these promises was postponed to a later date and left entirely to the national authorities:

The Poles, subjects of Russia, Austria and Prussia respectively, shall obtain a representation and national institutions, regulated according to the mode of political existence that each of the governments to which they belong will deem useful and appropriate to grant.215

Apart from stalling for time to postpone the constitutional movement, more concrete measures to subdue constitutional passions in Germany were put forward. Among the most effective: censorship. By ‘filtering’ information and banning newspapers,216 public opinion could be swayed for the pur-poses of the governments. It was of benefit to the German rulers that public opinion was directed not towards a radical change but towards a slight modification of the state order. This was facilitated by the fact that German

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liberalism was confronted with – and to a certain extent part of – a stable monarchical society, having not only the princes but also the administration and the landowning aristocracy as its foundation. Under such circumstances any necessary change to existing political systems could be confidently undertaken in the form of revolution from above, and it was likely that the concept of a separation of powers would be repudiated in favour of the ‘monarchical principle’. To this end, monarchs could count on a degree of support from both conservatives and liberals: while the former defended monarchical sovereignty as traditional, the latter were still slightly sceptical of a separation of powers because they feared a restoration of corporative pluralism; but both considered Gewaltenvereinigung (‘fusion of powers’) to be a guarantee for state unity and authority.217

Nevertheless, just what such a ‘revolution from above’ would be, remained undecided among the German princes, and apart from the rather ‘woolly’ commitment to the blanket term landständische Verfassung, no concrete model was put forward. What one could reasonably surmise was that high opinion of foreign monarchical- constitutional models, above all the Charte, was more distinct among the German ruling classes than among intellectu-als. While constitutional monarchism was perfectly tailored to suit the needs of the post- Napoleonic Age, class-consciousness was still much stronger than national-consciousness among the rulers, thus mitigating possible reservations against ‘alien influences’. The actual path to be travelled in constitutional affairs would be decided at the level of the single states.

3.4 Conclusions

‘This is clearly the era of the Constitution’218 was how Karl von Rotteck characterised his age in 1830, an assessment equally true for the period immediately after the collapse of the French Empire. Yet, constitutional questions had played a major role in public discourse even before 1814.

Despite the relatively weak position of the German bourgeoisie and their specific status in society compared to other countries, German intellectuals took part in examining Montesquieu and the ‘English Constitution’ from the middle of the eighteenth century. The American Revolution and the accompanying fundamental political changes also had an impact on the German Bürgertum, even though less directly than in other European states. Whereas the impact of the Polish Constitution of May 1791 can only be described as minimal, the constitutional debate in Germany was fired by the French Revolution and especially the first Constitution of 1791. In the course of the French Revolution, voices speaking out for constitutional government became increasingly louder in Germany. This did not imply, though, that revolutionary constitutionalism was seen as a beacon for the future. If anything, it was the sheer radicalism of the French Revolution and the instability of the country’s political system which gave rise to growing

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scepticism towards revolutionary ideologies. ‘Reform of the existing’ and ‘moderation’ were terms which dominated German political language at that time. The concurrent demands for constitutions and the rejection of revolutionary constitutionalism outlived the Napoleonic Age and became a decisive element of post-1814 discourse.

The situation in 1814/1815 was, nevertheless, slightly different to that of the late eighteenth century and was characterised by higher expectations. Napoleon’s modernisation agenda, for example the Code civil, had advanced administrative and legal reforms enormously, and his reform politics had been adapted even in those parts of Germany which were not under direct French influence. Consequently, it was a matter of course that such reforms would become permanent structures by casting them in a constitutional mould. Somewhat paradoxically, Napoleonic constitutionalism contributed to the growing demand for constitutional government insofar as the negative experience of Napoleon’s rule in Germany cultivated the desire to set up a fundamental law which would not be abused as an instrument of power- politics by individual rulers. In addition, growing nationalist feelings strength-ened public awareness that a constitution was a powerful tool for creating unity and therefore a means to boost Germany’s role within the European concert of power. Finally, the notion of ‘constitution’ in the post- Napoleonic Age was seen not only as an act of political reasoning, but also as recompense for the previous period of war and misery.219 In view of this, public demand in Germany for constitutionalism was loud and clear in 1814/1815.

The number of foreign models available had significantly increased since the second half of the eighteenth century. In addition to the classi-cal model of the ‘English Constitution’, there were now others to choose from. However, the actual views taken on the various potential models differed considerably, as did the reception they received and the way they were assessed. Basically, there were three identifiable types of foreign constitutional models in contemporary debate: firstly, the large group of ‘revolutionary constitutions’, comprising not only the constitutional texts of the American (the constitutions of the American states since 1776, the Federal Constitution of 1787) and French Revolution (1791, 1793, 1795, later the Consular Constitution of 1799 and the Imperial Constitution of 1804), but also the Spanish Constitution of 1812 or the Norwegian Constitution of 1814, based on the principle of the sovereign nation; secondly, the ‘English Constitution’ as a rather specific case; thirdly, the group of constitutions which were characterised as ‘constitutional monarchism’, among them the Charte constitutionnelle (1814), the Constitution of the United Netherlands (1814/1815) and that of ‘Congress Poland’ (1815).

Revolutionary constitutions were struggling against widespread reser-vation, not to say hostility, towards popular sovereignty among most German intellectuals. Memories of the French Revolution gave rise to the idea that constitutional systems based on revolutionary principles were arbitrary,

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unreliable and hence inappropriate. French constitutional models had a particularly bad reputation in Germany, mainly because scepticism towards revolutionary constitutionalism as such was reinforced by the distinct Francophobia among Germans after the Napoleonic Wars. However, other revolutionary constitutions were similarly unable to gain public support. The main obstacle to an unbiased perception of these constitutions was the ‘popular principle’ on which they were actually based: either in the form of pure democracy, as in the case of the American Constitution of 1787, or at least the weakening of monarchical power, manifest in the Cádiz Constitution of 1812 and the Eidsvoll Constitution of 1814. In addition, information avail-able about most of these constitutions was vague and in short supply.

In contrast, knowledge about the ‘English Constitution’ was more wide-spread, despite the fact that this knowledge was basically based only on Montesquieu, Blackstone and Delolme. The British constitutional system enjoyed a good reputation and was seen as a symbol of stability, tradition and political ethos. Indeed, its characteristics seemed to incorporate what Burke had defined as the ‘foundation of a fortunate polity’, and its obvious stability throughout the Revolutionary and Napoleonic Age was another reason for admiration.220 Notwithstanding the positive connotation of the English Constitution among both liberals and conservatives, their views diverged when it came to the question as to whether this model should actually be imported as the legal basis for the constitutionalisation of Germany. While many liberals were inclined to agree, most conser-vatives highlighted its unique character and hence non- transferability. At the root of conservative scepticism was the conviction that the English Constitution was a splendid act of political reasoning for the British Isles, but too ‘progressive’ for the needs of Germany. The strong role of parliament compared to that of the monarch was regarded as unsuitable in light of the German political past and present.

Under such circumstances, ‘constitutional monarchism’ and above all the Charte constitutionnelle seemed to be better models than the English Constitution for the German political class. These systems guaranteed a constitutional form of government and granted liberal rights in line with the English Constitution, but at the same time preserved monarchical sover-eignty. But what might be an attractive model in theory, was not necessarily the perfect model in practice. Reservation towards the Charte was based not on doubt regarding its theoretical meaning or actual content, but on the extreme Francophobia among most German intellectuals of the time. The invasion by French revolutionary as well as imperial armies was not easily forgotten, particularly by those who had participated in the Befreiungskriege or had grown up in this period. Furthermore, since liberalism and nationa-lism during the Vormärz were closely entwined, it would be virtually expecting the impossible if Germans east of the Rhine had looked longingly and admiringly towards France as a source of (constitutional) progress.

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In reality, the stronger the will toward national unification was, the wider the ostensible gap separating France from Germany became.221 Thus, no matter how appealing the Charte constitutionnelle may have been for the German intelligentsia in its anti- revolutionary mood and faith in the infallibility of authority, it nevertheless suffered under the overwhelming prejudice against everything French. Other monarchical- constitutional alternatives such as the Constitution of the United Netherlands and that of the Kingdom of Poland did not meet with such bias. However, they were practically non- existent in German debate and consequently had no chance of becoming real models.

This observation underlines one general characteristic of German consti-tutional discourse after 1814/1815: the fragmentary knowledge of foreign constitutions and political systems in general. Therefore it comes as no surprise that other potentially interesting constitutions such as the Swedish of 1809 – neither clearly ‘revolutionary’ nor ‘monarchical’ – went unnoticed to a broader public. For the most part, knowledge about other constitutions and constitutional systems was mediated. Studying foreign legal systems in detail or even to experience other political systems in practice was the privilege of only a few, which quite often meant that a constitutional and political ideal was confused with existing practice.222 Moreover, ‘intercultural knowledge’ was also hindered by the fact that personal contact between con-temporary political thinkers across borders was rare, even among liberals.223 If there was a Republic of Letters, it was mainly within national borders.

Uncertainty towards and the general lack of interest in many foreign models, together with the missing international link in constitutional debate, favoured an atmosphere in which constitutional ‘prototypes’ were not even considered as being suitable models for lasting political solutions. Yet, they did assume the role of a ‘stockroom’ of arguments for personal political purposes. At the same time, the language of the landständische Verfassung, which swamped the press around 1814/1815, embodied the emerging trend of self- referential political discourse. The term landständische Verfassung itself was vague and no one really knew what the actual content and practical political implications of it were, but it did suggest German genuineness and originality; thus, growing demands for ‘national constitutions’ were satisfied. These demands went hand in hand with doubts about the transferability of constitutions in general. There was suspicion as to whether constitutions generated in one country could be implemented in another. The ‘historico-genetic’ argument was that differing political, social, economic and cultural contexts would hinder any such implementation. Such arguments were often put forward regarding the English Constitution given its common- law character,224 but could also be generalised:

The actual wording of a constitution and legislation may be the same in different nations; but they never produce the same results, which are

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more the outcome of the spirit and character of the people. Words can be transferred but not the spirit, which only develops and evolves in and through life.225

This type of criticism was to be countered by distinguishing between those constitutional elements which had a unique national character and those which were generally transferable. Hence, a constitution was seen to not solely comprise individual traits, but also a nucleus which could be univer-sally applied. Nevertheless, objections could not be dispelled, and the idea that a constitution was the product of specific national conditions was to remain a crucial element in the constitutional discourse over the next few decades.226

Apart from the transferability of a certain constitutional model, a no less important question was whether a transfer could take place on account of existing political realities. Despite the fact that most German intellectuals were themselves closely involved in state administration or worked for poli-ticians, the ideas and objectives of intellectuals and state authorities were not necessarily the same. The former tended towards the legalisation of state power and the extension of political rights. The latter, however, wanted consolidation of rule, which had to be accomplished with a minimum of political concessions.

The need to transform politics and polity had become clear during the Napoleonic Age, resulting in a range of reform processes throughout Europe, and within Germany in particular. Those demands for reform, however, had not been fully met and at the end of the Napoleonic era, and German rulers could no longer turn a blind eye to the ‘constitutional problem’. During the Congress of Vienna, the promise to set up constitutions in all German states was finally fulfilled and put down in writing in Article 13 of the German Federal Act. This promise, however, was so vaguely expressed that it was neither clear nor certain when, how or if it would be fulfilled at all. There was however no doubt that many German governments were playing for time, while a distinct system of censorship monitored public constitutional debate. Nonetheless, public expectations as well as the political, economic and social challenges around 1814/1815 were much stronger than at the end of the eighteenth century, and prospects for constitutionalisation were better than ever before, especially in those German states confronted with burning domestic and foreign policy challenges. The question which remained was what these new constitutions should actually look like. While it was certain that ‘revolutionary constitutionalism’ would attract the ruling classes even less than the intelligentsia, the monarchs were presumably more open to foreign models in general and constitutional monarchism in particular, given the fact that for them the constitutional question was more a pragmatic than a ‘national’ one.

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4Transfer and Reception: Bavaria and Baden as Case Studies

In the following chapter, the tangible degree of constitutional transfer and reception in the post- Napoleonic Age – whether of explicit foreign ‘models’, former domestic constitutional experience or existing politico- theoretical concepts – will be analysed, explicitly on the level of concrete constitutionalisation processes in Southern Germany and by focusing on the protagonists of these processes. Bavaria and Baden as the two first larger German states to receive a written constitution after 1814/1815 will be looked at in detail.

The main question here is which ‘models’ influenced the actual con-stitutionalisation processes in Bavaria and Baden, and whether the idea of ‘Southern German constitutionalism’ as a ‘quasi-monolithic’ phenom-enon can be maintained. Or, to put it another way: whether Bavaria and Baden indeed underwent similar constitutionalisation processes, as widely suggested in scholarly literature, or whether there were major differences between the two states.

In a first step, the specific framework for setting up constitutions in Bavaria and Baden will be outlined from a comparative perspective. Based on that, the genesis of the Bavarian and Badenese Constitutions, which were both proclaimed in 1818, and above all the ‘inputs’ the constitutionalisa-tion processes received, will be examined. In a third step, the texts of the Constitutions will be analysed in order to reveal the similarities between them and possible imports from other constitutions. Subsequent to that, some interim conclusions for the whole study will be drawn.

4.1 Framework for constitutionalisation

4.1.1 Bavaria

During the Napoleonic age, Bavaria underwent drastic political change. Favoured by Napoleon’s policy to create a strong counterweight against Austria and Prussia, Bavaria was able to consolidate its territory and

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population considerably in the wake of French military successes after 1802. While the country had lost some territories in the Peace of Lunéville 1801, the Reichsdeputationshauptschluss in 1803 marked a fundamental turn-ing point. Bavaria profited from the secularisation and mediatisation of formerly independent territories and gained, among others, the ecclesiastical principalities Würzburg, Bamberg, Augsburg and Freising, 13 abbeys and 15 free imperial cities.

Between 1803 and 1805 Bavaria aimed to increase its status systematically under the direction of the country’s most influential politician, Maximilian von Montgelas,1 who had been foreign minister since Maximilian Joseph, the Duke of Zweibrücken, had succeeded to the Electorate of Bavaria in 1799.2 In order to strengthen Bavaria’s role in Germany and Europe, Montgelas favoured a strictly pro- Napoleonic policy. On 25 August 1805, the Treaty of Bogenhausen was signed with France, followed by the Treaty of Brno on 10 December, by which Bavaria gained a number of new territories, including parts of Vorarlberg. In the Peace of Pressburg (26 December 1805), Austria was forced to acknowledge these gains and additionally cede Tyrol, Brixen and Trento to Bavaria. No less important than the territorial enlargement – which actually continued in 18063 and 1810 (Treaty of Paris, 28 February)4 – was that Bavaria achieved the status of a sovereign state and became a kingdom (1 January 1806).

Nevertheless, due to the fact that all these achievements were essentially based on French military success, the country’s formal sovereignty remained rather of a semi- nature. In line with his general reform policy for Germany, there was indeed growing pressure from Napoleon to overcome the existing political order and to establish a new administrative and constitutional system in Bavaria. This was especially the case after the formation of the Confederation of the Rhine.

Much of the political reform debate in Bavaria around 1800 was about whether traditional forms of corporative government could possibly be reanimated. The Landtag as such had not been convened since 1669, but had been replaced by a permanent committee, the Landschaftsverordnung. Even though entrusted with important theoretical instruments of power, the Landschaftsverordnung had increasingly lost political significance.5 In the late 1790s and early 1800s, the Landstände were almost marginalised and were progressively being perceived as the breeding- ground of antiquated privileges rather than a reliable representative body. Accordingly, much contemporary discussion centred on setting up a new system of political representation rather than restoring the traditional rights and status of the Landtag.6 On 8 June 1807, a royal decree abolishing the fiscal rights of the Landschaftsverordnung together with the tax privileges of the nobility delivered the death- blow to the old landständische constitution in Bavaria.7

On the same day, King Maximilian I Joseph entrusted his government with the drafting of a new Bavarian constitution.8 However, it took more

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French intervention before work on the constitution actually began in the winter 1807/1808. At the end of November 1807, King Maximilian I and Montgelas were invited to Milan by Napoleon. Here, the French Emperor urged Bavaria to take the initiative and emphasised – according to Montgelas – that ‘in Germany something has to happen – so that the agitated state of affairs, which still governs there, may be left behind, and peace and order returned’.9 Thus, on the return of the King and his foreign minister to Munich, debate on a new constitution was initiated: a constitution, which was to be based upon the Westphalian model.10 Within a short time work was completed, and on 25 May 1808 the first written Bavarian constitution was published in the country’s law gazette, encompassing 45 articles arranged in six parts.11

The Constitution imitated French traditions in general and the Westphalian Constitution of 1807 in particular not only with regard to the terminology, using the term C(K)constitution12 instead of the traditional German Verfassung, but also showed important parallels concerning the actual structure and content.13 Consequently, it can be surmised that the Bavarian Constitution was started at Napoleon’s personal behest and represented another component of his ‘constitutional project’ in Germany. Many protagonists of the time and a number of later authors indeed followed this reading, among them Joseph von Hazzi, who observed in his work on the later Bavarian Constitution of 1818: ‘Here [in Milan, MJP] Bavaria’s Constitution was decided upon. The founder of the Bavarian Kingdom and of its expansion [Napoleon; MJP] insisted on it, and the King […] did not object to promise it. Which constitution? It was asked, that of Westphalia was the answer.’14

In the eyes of such observers, the constitutional document had been more or less imposed upon Bavaria. Such an understanding, however, does prove to be misleading. Within days of the Constitution having been proclaimed, the French envoy in Munich, Count Otto, provided an entirely different reading in a report dated 14 May 1808, in which he argued that the Bavarian Constitution was the first of its kind to have been given voluntarily by the monarch, with no influence whatsoever from the French.15 Though it is slightly exaggerated that there was no influence at all, Otto’s remark refers to the weakness of an interpretation which focuses solely on the dependent character of the Bavarian Constitution of 1808. What is true is that France and especially Napoleon in persona speeded up the constitution-alisation process. It goes without saying that reference to the Constitution of Westphalia was based on political reasoning and in line with Napoleon’s personal wishes. However, what has to be borne in mind as well are the particularistic and emancipatory, not to say ‘anti-Napoleonic’, elements of the Constitution.

On account of the massive territorial changes in the course of the expan-sion of Napoleonic France, Bavaria had to face the challenge of political

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integration. As a medley of formerly independent territories and towns with specific traditions, the task was to create a single administrative and political unit, to create a ‘Bavarian consciousness’ among the various regional and social groups, and to deal with the problem of the former Standesherren (‘mediatised nobles’).

For Montgelas, the whole question of amalgamating Bavaria required a radical state- orientated policy, which would strengthen both the country’s domestic ‘state sovereignty’ and foreign political status.16 What was paramount in his eyes were domestic administrative reforms under the paradigm of enlightened despotism. Even in his Ansbacher mémoire, written in 1796,17 Montgelas had developed a master plan for the future modernisa-tion of Bavaria with the following cornerstones: the creation of an efficient bureaucracy and civil service machinery, a radical restructuring of central administrative bodies, a reform of fiscal law, the suppression of (Roman Catholic) religion in the political sphere, the reorganisation of the judicial system, and the improvement of the educational system. And indeed, over the next few years, Montgelas very much kept to these guidelines, which basically wanted to establish a new form of state- bureaucratic absolutism18 in a very uncompromising manner, propelling Bavaria into the modern age.19

Nevertheless, there was growing awareness in Bavaria that setting up a con-stitution and guaranteeing political rights as a kind of ‘bonding agent’ was vital for a comprehensive modernisation programme, too. Promising a consti-tution thus became the key ingredient to Montgelas’ reform project, and the idea of ‘integration’ is the source of motivation in the preamble of the 1808 Constitution. The preamble frankly states that any administrative regulations had to be accompanied by an overall binding legal framework, namely the constitution. It was indispensable ‘to give all of the components of the legisla-ture and administration of our Kingdom, with consideration for both foreign and interior relations, complete coherency through organic laws’.20

The need for a constitution became all the more immediate as serious problems gained in momentum, above all public debt, which was mainly a knock- on effect of the expensive reform agenda. Excessive military expenses weighed heavily on the state’s finances, and Bavaria ran the risk of losing its creditworthiness. In the fiscal year 1806/1807, the deficit was 5.59 million guilders, about one quarter of the state income.21 Under these circumstances, offering constitutional guarantees was an obvious solution to strengthening faith in the security of public debt and to avoid the financial collapse of the country. Moreover, by granting constitutional rights, new taxes could be justified.

Besides these practical reasons, there were inherent national- political conside rations which would promote the formation of the 1808 Constitution. Montgelas was well aware that the Constitution would not only have a domestic impact with its integrating effect, but would also have a consoli-dating function in foreign politics, since the text of the Constitution would

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cement Bavaria’s territorial status, which was far from clear. At the same time, the Bavarian Constitution of 1808 was a practical tool to safeguard or rather reclaim national sovereignty. By forcing through its own constitution, the Bavarian government pre- empted the impending creation of a ‘framework constitution’ for the Confederation of the Rhine,22 which would have meant far- reaching restrictions for its own constitutionalisation process.

All in all, the Bavarian Constitution of 1808 was a political feat, by which – metaphorically speaking – two birds were to be killed with one stone: outwardly, the Bavarian government left no doubt that it was a loyal ally of France and wanted to comply with Napoleon’s wishes for constitution-alisation and introduction of the Code Napoléon.23 Essentially, however, the ‘national card’ was being played, promising not only domestic stability and offering a possible solution to financial misery, but underlining and strengthening Bavarian claims for sovereignty and independence.

Yet the very character of the constitution as an act of statesmanlike pragmatism and political craftiness also reveals its fundamental weak-ness. The Constitution was, above all, an expression of Montgelas’ Realpolitik: an instrument of power, not a document to assume independent political life or even a practical ‘manual’ for a democratisation of Bavaria. Accordingly, Montgelas did not intend to carry out the regulations of the constitutional document, some of them certainly progressive (equality before the law, freedom of conscience, freedom of the press, and so on.), in practice.24 This was especially the case for the parliamentary assembly foreseen in the Constitution (National-Repräsentation),25 which was, in fact, never convened. The result was a ‘representative vacuum’, given the fact that the traditional representation of the Landstände (landschaftliche Korporationen) was abolished on 1 May 1808.26

It was likely that public discontent would grow in the long term, but for the time being the dramatic foreign political and military developments were given priority both by the Bavarian government and public. After Bavaria’s successful change of sides in 1813, however, which guaranteed the preservation of Bavaria’s power status and most of its territorial gains,27 the constitutional question became more pressing than ever before. Sheer technical reasoning begged action, due to fact that the Constitution of 1808 had become obsolete in several respects. Among other things, the Confederation of the Rhine, as the explicit point of reference for the Constitution, had been dissolved in 1813,28 while legislation had qualified or annulled a number of the Constitution’s provisions since 1808.29 Much more importantly, however, Bavaria sensed the dawn of a new era, and voices speaking up for a true constitutionalisation for the whole German nation became louder and more distinct. The prospect of a unified Germany and the danger of a restriction or perhaps even loss of Bavarian state sovereignty were thus immediate. At the same time, the country’s financial situation was worse than ever due to the financial burdens of the continuous wars,

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and the task of ‘integration’ – in legal, territorial and social terms – was far from fulfilled.

Nonetheless, Maximilian I Joseph and Montgelas hesitated in relaunch-ing constitutional discussions until mid-1814.30 But the First Treaty of Paris and even more so the proclamation of the Charte constitutionnelle on 4 June 1814 finally marked the beginning of an important shift in thinking.31 In view of the events in France, growing public expectations, and the com-mencement of constitutional deliberations in other German states, among them Baden, the government felt bound to initiate plans for a new written constitution. Montgelas’ own remarks in his Compte rendu au Roi, written after his downfall in 1817, reveal that he had come to realise that it was no longer possible to close one’s mind to the prevailing Zeitgeist and political realities. Reflection on ‘constitution’ was under way practically everywhere, and even among the German rulers ‘no one seemed to doubt that all of Germany’s sovereign states were to be or to become limited monarchies’.32 Montgelas realised the need to accept this ‘logic of history’, but also under-stood that a new constitution might be beneficial for Bavaria as such, not least insofar as any interventions by federal authorities would be restricted ahead of time.33 Moreover, since Ludwig, the liberal-minded heir to the throne and an adversary to Montgelas’ politics, was already busy with his own constitutional plans, immediate counter- action had to be taken.34 On 17 September 1814 – just one day before the official opening of the Congress of Vienna and immediately before the King’s departure – a royal decree gave the go- ahead for setting up a new Bavarian constitution by outlining the principles on which a future text should be based.35 On the same day, another decree appointed a royal commission presided over by Heinrich Alois Graf Reigersberg, which was entrusted with preparing the draft of a new constitution. One month later, the 15 members of this commission – seven of them representatives of the old aristocracy, eight of them ennobled for their merits in public administration – started work.36

4.1.2 Baden

In several respects, Baden was in the same situation as Bavaria at the turn of the nineteenth century. Similarly to its eastern neighbour, Baden profited from French military success and Napoleon’s policy towards Germany, which aimed at establishing a stable Cordon sanitaire against Prussia and Austria by creating a number of Mittelstaaten. Under Napoleon’s aegis, Baden was able to consolidate and increase its territory five times over in a few years. In 1811, Baden covered an area of 27,260 square miles, of which only 5,138 square miles had been under Baden control before 1803. In the same period, the number of inhabitants rose from around 244,000 (1803) to around 990,000 (1811).37 Numerous former abbeys and manors, imperial free cities, secularised ecclesiastical principalities and mediatised territories were now integral parts of Baden. Even more so than for Bavaria, the main challenge

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for the formerly small and politically quite unimportant margraviate was to consolidate its territorial and political status, which had also been upgraded by the prince- elector status in 1803 and by being declared grand duchy in 1806.38 With this in mind, creating a homogeneous administrative body and a unifying Landesbewusstsein seemed an obvious necessity.

Thus, after 13 ‘organisational edicts’ (Organisationsedikte) had been passed in 1803 in order to regulate various areas of public law, a series of ‘constitu-tional edicts’ (Konstitutionsedikte) were issued between 1807 and 1809, which aimed at creating a centralised body politic. Of the proposed nine edicts,39 ultimately seven were decreed.40 The efforts to reform administration culminated in the notorious organisational edict of Sigismund Karl Johann Freiherrn von Reitzenstein (1766–1847),41 signed by Grand Duke Karl Friedrich on 26 November 1809,42 which restructured the entire adminis-trative body from top to bottom. The existing administrative structure was transformed into a system of ten rigidly hierarchical Kreise modelled on the French departments, each with a director exercising all- embracing powers.43

As in Bavaria, the focus was hence clearly on bureaucratic- organisational reform, but the possibility of setting up a constitution was taken into account, too. As early as 1806, Johann Nikolaus Friedrich Brauer, the creator of the organisational edicts in 1803 and close adviser of the government, emphasised the need for a constitution in a memorandum.44 In answer, the Grand Duke declared his support for further deliberations on a constitution (27 October 1806), speeding up the work on the constitutional edicts of 1807–9 that were prepared by Brauer.45 According to Brauer’s plans, the first seven edicts would be crowned by enacting an eighth, die innere Staatsverwaltung des Großherzogtums betreffend (‘concerning the inner state- organisation of the Grand Duchy’), and a final ninth one, über die Gewährleistung der Staatsverfassung (‘on the guarantee of the state-constitu-tion’).46 Even though both edicts were shelved without actually becoming law in 1808, the prospects of a Badenese Constitution looked better than they ever had.

Given the fact that the country was facing possible bankruptcy,47 and in view of the publication of the Bavarian Constitution in May 1808, the Baden government considered drawing up its own constitution in line with both Napoleon’s ‘model constitution’ for Westphalia and that of Bavaria. The trailblazer for constitutionalisation was the country’s liberal- minded former envoy in Paris, Emmerich Joseph von Dalberg, who was appointed minister of finance and Kabinettsdirektor (‘director of the cabinet’) in the same year.48 Under his auspices, Karl Friedrich issued a grand- ducal edict, 8 July 1808,49 which not only proclaimed the introduction of the Code Napoléon by 1 January 1809,50 but also promised a written constitution and a represen tative body like in Westphalia and Bavaria.51

In the wake of this edict, more intensive inner- governmental discussion on the future constitution got underway and a number of constitutional drafts

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were presented, the first on 19 August 1808.52 The main point of discussion was the concrete role of the representative body: while Dalberg argued for one with extensive rights, especially regarding budgetary bills,53 other members of the government clearly wanted a body with substantially restricted rights. Among the latter group, which was in the majority, was cabinet minister Freiherr von Gemmingen. In a written statement he argued that ‘if the Stände have merely a consultative vote, they will create a lot of paperwork, but be of little use’. But much more problematic was the idea of a strong parliament:

If they [the Stände; MJP] are given the veto, then the concept of sovereign government is dissolved, then monarchy and democracy will be locked in eternal struggle. If, as in England, they are given the right to approve or refuse subsidies for the monarchy, then the monarchy corrupts democracy, as in England, and the people are duped of their freedom.54

In the end, none of the plans had any particular effect, and in 1809 the whole project petered out,55 when Reitzenstein took over from Dalberg as the main promoter of constitutionalisation, and the Fifth Coalition War broke out against Austria and Great Britain. Furthermore, in 1811 Grand Duke Karl Friedrich died, succeeded by his grandson Karl,56 and in 1812 Napoleon’s campaign against Russia heralded the beginning of the end of French hegemony in Europe.57 Under these circumstances, which absorbed the attention of both the political class and the population, other affairs took second place, including the enactment of a constitution.58

Yet in 1814 the constitutional question regained momentum, even though there was still no particular popular pressure.59 Napoleon’s defeat in 1814 which had liberated Baden from French hegemony, created, however, new problems and aggravated old ones. The fundamental problem was the future of territorial integrity if not of independence as such. In the Treaty of Frankfurt, by which Baden had changed sides and joined the allied powers in 1813, sovereignty had been guaranteed, but in an addendum Baden had to give its consent to possible territorial changes necessary for a ‘definite order on behalf of Germany’s maintenance and independence’.60 The bla-tant Bavarian demands for those parts of the Palatinate under Baden rule and the Austrian claim to the Breisgau endangered the cohesion of Baden. These demands and claims were fuelled all the more since no heir- at- law had been born and Grand Duke Karl became increasingly frail. Apart from the dynastic problem of the foreseeable disappearance of the Zähringer line and the whole question of succession, the formerly privileged and since 1806 mediatised nobility was trying to reclaim its old rights, thus pushing the country to disunity. Moreover, the need for lasting stability for public finances was now even more urgent than ever before, especially because the two last years of the war had placed an enormous economic burden on Baden. Additionally, public administration was in disarray, intensified by

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partially completed reforms ineffectively carried out, indolence on the part of Grand Duke Karl, and the absence of leadership at the ministerial level. Following Napoleon’s defeat, Baden indeed stood on the brink of disaster: political disunity, economic misery and administrative disorder.61

The project to set up a constitution in Baden was set in motion again in late 1814, with decisive support from Tsar Alexander I and his political advisor Heinrich Friedrich Karl vom Stein.62 In his visionary ambition to create a strong federal German state,63 vom Stein was not a supporter of German particularism as such. Nevertheless, given the dynastic relations between his patron Tsar Alexander and Grand Duke Karl as well as their express will to prevent the enlargement of the Bavarian kingdom, vom Stein attended the constitutionalisation in Baden. In July vom Stein had had a private conversation with the Badenese Grand Duke, in which Stein had insisted on the drafting of a constitution and the installation of a strong cabinet.64 At the beginning of the Congress of Vienna, vom Stein came back to the question of a Badenese constitution, which in his eyes had to be a ‘German product’ and thus landständisch. In a memorandum dated 25 November 1814, which had been prepared by Karl Wilhelm Freiherr Marschall von Bieberstein, envoy for Baden,65 vom Stein beseeched Tsar Alexander I to use his family connections to convince his brother- in- law Karl of the need for fundamental political changes.66

In view of growing outside pressure and the personal intervention even of his sister, Empress Elizabeth, Karl finally relented. On 1 December 1814, during the Congress of Vienna, he formally announced the preparation of a landständische constitution and the installation of a constitutional commission in a memorandum to the princes Metternich and Hardenberg.67 Notwithstanding its brevity, Karl’s memorandum was ‘programmatic’ in two respects: on the one hand the government showed its will to accept a legis-lative body with substantial rights and not merely a deliberative function; on the other hand the memorandum stressed that any constitution should be in accordance with the results of the Viennese deliberations, but at the same time emphasised Baden’s sovereignty. This was underlined by stressing the fact that the constitution would have to suit ‘local conditions’, which was a more or less unmistakable repudiation of a constitutional order being imposed from outside and above, such as the Austro- Prussian initia-tive to establish a quasi- protectorate over Germany in late 1814 by setting up a strong federal order.68 Karl’s memorandum was thus in keeping with an official note by the smaller German states dated 16 November 1814, in which they had protested about their having been excluded from the debate on a federal constitution for Germany and stressed their autonomy in constitutional matters.69

The stage was now set for an intensive domestic political debate about the future constitution of Baden, which formally started when the members of the constitutional commission convened on 12 January 1815.

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4.1.3 Conclusions

During the Napoleonic Age, Bavaria, Baden and Württemberg had extended their territories and population considerably; they achieved political sovereignty and became German powers of importance. However, extension also involved incorporating independent territories with different traditions and legal frameworks, forms of representation and systems of administra-tion, implying that fundamental challenges and existing problems were aggravated even more. While Württemberg tried to meet similar challenges and problems with the instruments of traditional absolutism, Bavaria and Baden trod new paths in enforcing their ambitious reform policies to create a strong monarchical state on modern foundations, including the first tentative steps towards constitutionalism.

All in all, political transformation and reform was more radical in Bavaria than in Baden. Under the reign of Maximilian I Joseph, Bavaria underwent drastic changes, which were essentially pushed forward by Montgelas. In pursuing an unambiguous reform agenda and driven both by keenness and a distinct sense of power, Montgelas transformed the old feudalistic Bavarian state into a modern ‘political machine’ with effective bureaucracy and strict centralism as its main cornerstones. Parallel to that, the traditional Bavarian Landstände were pushed out of their former political role and sank into insignificance. The ambitious modernisation programme culminated in the Constitution of 1808, which took the Westphalian Constitution as a direct model: the Constitution crowned domestic reforms and was likewise a brilliant foreign political coup, strengthening sovereignty, but leaving no margin for any substantial democratisation of the country’s polity. This was manifest in the fact that political involvement was highly restrictive and parliament never actually convened.

In Baden, the chances of establishing strong centralised state absolutism were in certain respects even better than in Bavaria, considering that – with the exception of the Breisgau – there were actually no traditions of cor-porative government which might have been impediments. Nevertheless, Baden lacked an exceptional politician such as Montgelas. The result: the reform programme in Baden was less ambitious and took longer to imple-ment. Rather than a radical breach with the past, the aim was to set up a ‘ conservative- patriarchal Obrigkeitsstaat’.70 It therefore comes as no surprise that inner- governmental constitutional deliberations in late 1808 revolved around revolutionary constitutionalism and the two constitutional docu-ments which had been declared explicit yardsticks by the Grand Duke, namely that of Westphalia and Bavaria, but also clung to certain traditional eighteenth-century concepts. The Badenese constitutional drafts of 1808 based the proposed electoral system on membership in a certain profes-sional group, while in Bavaria an abstract- rational census system was set up. Notwithstanding, these plans were never put into practice and a written constitution as in Bavaria remained a desideratum in Baden.

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Yet despite the fact that Bavaria had become a formal constitutional state in the Napoleonic Age and Baden had not, both states were in a similar position in 1814. The Confederation of the Rhine as the French power- political instrument in Germany had certainly disappeared, but had been replaced by Austro- Prussian aspirations to take over Napoleon’s hegemonic role. Hence, the threat to the sovereignty of the Southern German states became even more imminent in view of growing public demands for a unified Germany. Pending practical problems, which had not been entirely solved by the administrative and legal reform projects in the years before, were crying out for constitutional solutions, in particular two: the financial crisis, which was set to spiral entirely out of control, and the unfinished Landesbewusstsein, which was essential to knit the heterogeneous parts of Bavaria and Baden respectively into a single body politic and to form a sustainable counterweight to the dominant German ‘national spirit’. Finally, the concepts of revolutionary and Napoleonic constitutionalism, which had actually been at the heart of both the Bavarian Constitution of 1808 and the earlier constitutional drafts in Baden, were no longer a favourable basis for new constitutions: not only did they smack of French origin, but they also questioned monarchical power and sovereignty.

Consequently, constitutional deliberations were resumed both in Bavaria and Baden in late 1814, the immediate catalyst being the release of the Charte constitutionnelle in France and the upcoming Congress of Vienna. While the Charte was regarded as a political beacon and the commencement of ‘constitutional accounting’ for the revolutionary past in Europe, though not necessarily as a direct model, the Congress called to mind that the most effective way to pre- empt any attempt to impose constitutional orders from outside was to release one’s own constitution in advance. It is notable, though, that in Bavaria king and government drew the obvious conclusions themselves and spontaneously relaunched constitutional debate, while in Baden it was the external intervention both of Freiherr vom Stein and the Russian Tsar which was the deciding factor. Beyond such external moti-vations for resuming constitutional debate, any intensive constitutional lobbying from any particular group could not yet be spotted in Bavaria or Baden. Thus, the work of the constitutional commissions in Bavaria and Baden did not have to start in an atmosphere of domestic turmoil and pressure. Public expectation – as all over Germany – nevertheless ran high, and the impression that there was no public interest was thus deceptive.

4.2 Genesis of the Constitutions

4.2.1 Bavaria

The Royal Decree of 17 September 1814 contained detailed instructions for the constitutional commission and the form of the future constitution. In official terms, the Constitution of 1808 should just be ‘revised’ and not

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be replaced by a new one. This was obviously to avoid the impression that the Constitution of 1808 had just been a political ‘blip’ or even mistake, and to underline the fact that Bavaria had already been a constitutional state for several years.71

The decree laid down that the constitutional document of 1 May 1808 and the subsequent ‘organic edicts’72 should be modified (Art. I–IV). The ‘main provisions of the Constitution’, however, should remain the basis for the new draft (Art. V): the guarantee of certain fundamental civil rights, among them freedom of worship and conscience, individual liberty and the inviolability of property; freedom of the press, even if only subject to the condition that ‘abuse made thereof can be prevented’; the independ-ence of the judiciary; the abolition of serfdom; equality of all citizens with regards to taxation, military service and service in the national guard; free access to all public posts for all Bavarian citizens. These constitutional ‘core elements’ should only be changed if absolutely necessary in light of past experience.

While this catalogue of ‘basic rights’ was to be preserved, the legisla-tive body would be reorganised. It’s future composition and status was described in length in Article VIII of the royal decree. Above all, the concept of a bicameral system (Versammlung der Stände des Reichs) should replace the unicameral National-Repräsentation of 1808. The explicit motivations for this significant move away from the Constitution of 1808 remain unclear, but circumstantial evidence, for example the similar naming of the second chamber as Chambre des Députés,73 suggests that the French Charte constitutionnelle served as the most immediate inspiration for the bicameral system. Other provisions of the royal decree pointed the way to the future Constitution of 1818, too, for example those provisions regarding the com-position of the first chamber (Kammer der Reichsräthe), the immunity and remuneration of deputies and the competences of the two chambers in the legislative process. However, it seems that in these provisions the Charte did not have a major influence. The same goes for the proposed obligatory annual sessions of the Ständeversammlung, the suggestion of annual state budgets and the innovative idea of a parliamentary board of appeal for citizens’ constitutional complaints (Art. IX), but also for less progressive elements of Montgelas’ guidelines such as the exclusion of the Grundholden, the vast majority of the population, from the right to vote.74

The latter provision in particular came under attack in the meetings of the constitutional commission, which started on 20 October 1814, after a smaller working committee of five had been set up on 1 October to do the preparatory work.75 A liberal group, headed by Max Freiherr von Lerchenfeld, criticised the exclusion of the Grundholden, saying it would actually mean that whole provinces such as Franconia and Swabia remained without representation. They argued that only a truly representative constitution would provide the necessary legitimacy for a viable body politic: ‘only

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in this way can the belief in the perfection and the validity of laws, the necessity of duties grow’.76 The need for such a representative constitution was even more pressing in view of the huge political challenges of the time, as Lerchenfeld specified in a letter to Crown Prince Ludwig, with whom he corresponded regularly.77

Another controversial issue in the commission were the competences of the Ständeversammlung, and those parts of Montgelas’ guidelines which restricted the chambers’ fiscal rights and suggested the crown had the sole right of initiative in the legislative process, while not providing for any kind of ministerial responsibility. While only marginal references were made to foreign constitutions or forms of government in general,78 in the discus-sion about the Ständeversammlung comparisons with other models were consciously made by the liberal- minded members of the commission in order to strengthen their line of argumentation. Lerchenfeld insisted that the idea ‘the will of the ruler [was] law’ would not correspond with German traditions, using the English Constitution and the French Charte of 1814, but also the Constitution of Nassau and the draft for a Badenese constitution as examples. Graf von Arco, another fellow liberal, pointed out that all con-stitutions or constitutional drafts prepared in 1814 actually provided more rights than the Bavarian draft.

Efforts to formulate the draft more liberally were thwarted by the majority of the constitutional commission, who referred back to the binding force of the royal rescript of 17 September 1814.79 Candid liberal criticism was finally foiled by a harsh royal decree, dated Vienna, 10 December 1814, in which Max I criticised the snail pace of the constitutional deliberations and reprimanded them for going beyond the guidelines set down in the September rescript.80 Under the immediate aftermath of this royal interven-tion, the deliberations of the constitutional commission came to an end in the second half of January 1815. A proposal restricting electoral rights and those of the chambers even more than provided by the royal rescript was eventually approved by the commission with a slight majority, and on 14 February 1815 – after 22 plenary sessions – Graf Reigersberg sent his final report to the King.

Reigersberg stressed the commission’s guiding principle to align restriction of power and monarchical constitution.81 At the same time, Reigersberg con-fessed that he – ‘even if […] governed by completely different principles’ – agreed with several of the minority proposals, which he submitted to the King together with the majority draft.82 He confessed that he shared the opinion of the liberal faction that the right to vote should not be denied the Grundholden, insofar as they paid at least a corresponding annual tax, and that the legal competences of the Ständeversammlung had to be expanded.

These minority proposals became significant in future constitutional debate because they also reflected the general attitude of Crown Prince Ludwig, who became the most influential critic of the restrictive draft.

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In a formal memorandum, dated 9 March 1815 and entitled Bemerkungen über den Entwurf der Verfaßung für Baiern,83 Ludwig critically analysed the existing draft. Ludwig’s main objective was to strengthen the political rights of the Bavarian people and especially that of the two chamber parliament. Among the key demands of the Crown Prince were freedom of the press (V, 14), the guarantee of direct suffrage (VIII, 10), the right of initiative for parliament in the legislation (VII, 2), the introduction of a right to petition in the event of a breach of constitution (VII, 7), and undiminished rights of the Stände regarding tax affairs (VII, 4 and 5). Nevertheless, Ludwig’s Bemerkungen, despite their liberal impetus, abstained from emotional appeals, and used generalising statements based on historical reasoning. There is no mention in Ludwig’s text of any specific foreign ‘model’ he might have favoured. If there was something like a ‘general political vision’ in his memorandum, it was rather the idea that Bavaria should tread an independent path in its constitutionalisation and find its own national solutions. Ludwig rejected the terms Constitution and Deputirte, which should be replaced by the German Verfaßung and Abgeordnete,84 and stated his preference for the title Standesherr to Reichsherr for the members of the first chamber in order to avoid any impression that Bavaria was just imitat-ing a foreign nomenclature, namely the Swedish.85

Ludwig was obviously successful, and on 14 March 1815 Max I Joseph ordered the existing constitutional draft to be modified in line with his son’s wishes. The new constitutional commission, however, comprising the most important members of the previous commission, suspended their delibera-tions after only two meetings in spring 1815.86 Montgelas later stated that domestic and foreign political reasons were responsible for the halt in the constitutional debate, which was not resumed until two years later.87 Yet more importantly, Montgelas had personal reservations against the plans of Reigersberg and the Crown Prince. Just days before his dismissal, Montgelas maintained in a meeting with the French envoy La Garde in Munich that it was naïve and over- ambitious individuals, striving for their own personal gain, who were pushing for a representative system in Germany. Montgelas con-ceded that the French form of government, which had become established in France on account of historical experience and particularly the concessions of the Charte, may well be necessary and suitable for France, but he rejected the value and viability of such a system for Germany at that present moment. He felt that only a few people could benefit from or even understand the rights of political freedom, and that a representative system would foil the claims of the German princes for independence and sovereignty.88

Montgelas’ remarks could be interpreted as a fundamental renunciation of the principle of constitutional government, but that would have been contrary to his own initiative to relaunch constitutional debates in 1814. Therefore it would seem that Montgelas was rejecting those parts of the Charte which he considered too liberal, above all the electoral principles.

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A political pamphlet published under Montgelas’ initiative in early 1817 backs this interpretation and underlines the argument that he was still aware of the need of a constitution per se.89

At all events, Montgelas had become an obstacle in the way of the quick proclamation of a constitution. Thus, it was likely that after his dismissal on 2 February 1817, initiated by the Crown Prince, constitutional debate would accelerate. Surprisingly, however, nothing of the kind happened, perhaps also because there continued to be remarkably little public pressure for a constitution to be passed.90 One of the rare examples of a pro- constitutional pamphlet is a brochure published in 1816, entitled Wodurch wird Englands Größe begründet? Eine historische Untersuchung mit Beziehung auf Baiern.91 Here, the English Constitution is praised as the source of England’s power and as the ‘ideal state constitution’, Bavaria as the country most suitable to adopt and institutionalise the English model.92 For the author, the corner-stone and heart of the English system was the liberty of public opinion and the will of monarch and government to accept the rule of law.93

However, the idea of adopting an English- like constitutional system remained rare and was in stark contrast to the intentions of the Bavarian govern-ment. Johann Christoph von Aretin, a former collaborator of Montgelas, expressed the official view in his politico- theoretical writing Abhandlungen über wichtige Gegenstände der Staatsverfassung und Staatsverwaltung mit beson-derer Rücksicht auf Bayern (1816). He not only emphasised the common argument of the local peculiarity and thus non- transferability of the English Constitution,94 but also denounced its democratic nature, which would only allow an idealistic separation of powers. For him, there was in fact parlia-mentarian rule in Great Britain, given that both legislative and executive powers were dependent on the will of parliament: ‘In the spirit of this con-stitution, the king is nothing more than the minister of parliament, and the members of the latter are oligarchs elected by the people.’95 In Aretin’s eyes, such a system shattered the ‘philosophical’ principle that the monarch was ‘the vital principle of the state, the centre of the converging forces. […] In him […] all the power of the state is concentrated, and from him it emanates to all parts thereof.’96

Work on the constitution was not resumed until the beginning of 1818,97 when the decisive step in the elaboration of a Bavarian constitution was finally triggered:98 by the ongoing financial misery, but above all by renewed concern about Bavaria’s state sovereignty and fears of foreign interference in its politi-cal affairs. Since 5 November 1816, the German Federal Assembly (Bundestag) had been in session in Frankfurt, and Bavaria’s envoy Johann Adam von Aretin reported with growing anxiety about the increasing annoyance among both the other representatives and the public in the rest of Germany, who blamed Bavaria for dragging its heels and preventing the release of a constitu-tion as provided in Article 13 of the German Federal Act.99 It was just a matter of time before the constitutional question would be on the agenda of the

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Federal Assembly, particularly, because a growing number of member states demanded a clear interpretation of the vague formulation of Article 13: perhaps the first step to a general and binding ‘framework constitution’.100 This prospect was even more threatening for Bavaria as there were influential powers striving to re- establish pre- revolutionary forms of corporative govern-ment. The Austrian government left no doubt that this was also in its interest, underlined by the re- installation of the Landstände in Tyrol and Galicia in 1816. In winter 1817/1818, Metternich even submitted concrete constitutional plans to Bavaria, which aimed at a traditional landständische constitution and thus contradicted the efforts of the Bavarian government to weaken the influence of the estates in the previous two decades.101 Further interventions by Austria, but also Prussia and Russia, in the Bavarian constitutionalisa-tion process were anticipated. Moreover, the rapid progress of constitutional debate in Baden was another cause for concern in Munich, particularly in view of the unsolved territorial disputes over the Palatinate. Bavaria’s aim was to pre- empt the release of a constitution in Baden as well as in Württemberg, not least for reasons of prestige in order to underline the claim to political and innovatory leadership among the German Mittelstaaten.

Thus, on 16 February 1818 Max I Joseph ordered the immediate resump-tion of constitutional deliberations.102 Under observance of strict secrecy, the first session of the appointed ‘ministerial conference’ (Ministerialkonferenz) took place on 26 February. In line with a proposal by Graf Reigersberg, who as the oldest minister was again president of the committee as in 1814/1815, the constitutional draft of 1815 together with the comments made by Crown Prince Ludwig and the royal decree of 14 March 1815 were taken as a basis for the deliberations. In contrast to the years before, these deliberations now made rapid progress, especially accelerated by the wish of Max I Joseph that the work of the ministerial conference be finished by his birthday on 27 May. Accordingly, in just two months the final version of a Bavarian constitution was moulded into shape.103

In those two months, Georg Friedrich von Zentner became the most important and influential protagonist within the Ministerialkonferenz, and it is with good reason that Metternich later called Zentner the ‘father of the Bavarian Constitution’.104 Zentner, born 1752 in the Palatinate, studied public law and history in Göttingen after a longer stay in France and was awarded a doctorate in law summa cum laude in Ingolstadt 1779.105 In the same year, he took over the chair of juris germanici communis et statuarii Palatini at the University of Heidelberg. In the 1790s, Zentner was ennobled (1792), took part as legal advisor in the peace negotiations of Basel (1795) and Rastatt (1797), and moved from academia into the Bavarian public service, where he quickly made a career. In the Ministry of the Interior, Zentner became head of the section Education and Teaching (1808), and after Montgelas’ dismissal he was appointed privy councillor and director general of the whole ministry (1817).

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In view of his expertise in public and constitutional law, Zentner had been actively involved in efforts to reshape the Bavarian political system even during Montgelas’ era. After Bavaria becoming a kingdom in 1806, Zentner had urged a written constitution be enacted, to avoid having to solve the question of the mediatised nobles at the level of the Confederation of the Rhine, which was likely to strengthen the German national spirit to Bavaria’s disadvantage.106 In 1808, Zentner became one of the four members of the commission entrusted with the drafting of the Constitution of 1 May and personally wrote the second part: Von dem königlichen Hause.107 He was also involved in drawing up the ‘organic edicts’ following the 1808 Constitution and took part in the debates on the reorganisation of the district administra-tion and preparation of the national representation in 1811.108 Given that he was well- versed in legal matters and due to his previous involvement in the constitutionalisation of Bavaria, it is not surprising that in September 1814 Zentner was appointed one of the five members of the working com-mittee within the constitutional commission. Even then, Zentner played an important role.109 Many commissioners basically lacked knowledge of the subject in general and juridical know- how in particular. It was under such circumstances that Zentner was able to exert his influence, even if only sporadically at this stage. Due to the restrictive views of the King and Montgelas and the conservative majority in the commission, there was very little space for Zentner to introduce progressive ideas. Thus, after initial efforts to support the liberal position of Lerchenfeld, Zentner soon pivoted to a more pragmatic line in his voting behaviour.110

The situation in 1818 was now very different to that of 1814/1815: the ministerial conference contained more liberal- minded representatives than the constitutional commission had done, and it was now the express wish of the King the minority votes of the earlier deliberations and Crown Prince Ludwig’s memorandum be taken into account. Moreover, Zentner now held a much more influen tial political position than three years before. Of all the members of the ministerial conference, Zentner was certainly the one with the most expertise, and he was actually the only one who had been directly involved in both the set up of the Constitution of 1808 and the constitu-tional deliberations in 1814/1815, including the two sessions of the ‘revision committee’ on 14 and 16 April 1815.111 In the final phase of the constitution making, Zentner was the leading figure in the debates,112 and from the first session onwards, he assumed the role of the de facto president: he reported on the provisions of the constitutional draft of 1815, elucidated existing regulations, suggested changes and allocated specific tasks to other members of the committee, namely drawing up amendatory edicts, which unlike in 1808 now ran parallel to the setting up of the constitution as such.113

All in all it can be said that Zentner’s activity in the constitution-making process was determined by his personal and professional socialisation in the old Reich, manifest in his opposition towards every form of revolutionary

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constitutionalism and especially the principle of modern representative government. Zentner’s political thought was guided by the experience of the Reichsverfassung and its corporative system, maintaining privileges of particu-lar estates, above all the nobility. While his strict rejection of a representative constitution and his penchant for a ständische Verfassung seemed to reflect a common view in the committee,114 his conservative proposals for preserving certain rights of the nobility went too far even for several members of the commission.115 Zentner was convinced that an elite distinguishing itself in terms of literacy, experience in public service, wealth and property deserved a corresponding constitutional status. As early as October 1814, Zentner had spoken out for civil and penal law courts for nobles and clerics,116 and he vehemently advocated privileges in the deliberations 1818.

In this respect, Zentner was more a child of the Ancien Régime than of enlightened political philosophy. However, his ambition to safeguard the foundations of a traditional constitution went hand in hand with a deeper insight that this project needed to meet the Zeitgeist and incorporate modern ideas and concepts, too, if it was to succeed. For this reason, in 1818 Zentner shared the unreserved liberal view that the Ständeversammlung had to be granted substantial rights and was not just an advisory body.117 Accordingly, Zentner campaigned for a broad legislative participation of the two cham-bers, their right to decide both on direct and indirect taxes, and their right to petition the king on whichever matters they deemed important: three claims, which had failed in 1814/1815 due to the harsh opposition of the conservative majority in the commission at the time, but were now roundly adopted.118 The same happened with the controversial question of voting rights for the Grundholden, to which, upon Zentner’s request, the whole commission agreed unanimously on 15 April 1818.

The fact that Zentner was actually aware of and had a deep knowledge of foreign political systems became manifest in his willingness to break new ground and to tread new trails if appropriate. In preparation for the deliberations, Zentner had systematically studied constitutional texts and systems. But no matter how profound Zentner’s knowledge of contemporary European constitutional law might have been and no matter how much expertise he had acquired in his former function as legal scholar, that did not imply that he was biased towards one specific constitutional model. Rather than being determined by any particular ideological premise, his reasoning in the ministerial conference was motivated by practical require-ments. A vivid example for his pragmatism is the session of 20 May, in which Zentner argued that he had come to realise ‘after much thought and after having studied the right of succession in most European dynasties’ that a change of the Wittelsbach succession law was advisable.119

Nevertheless, Zentner made more references to the Charte constitutionnelle than to any other constitution. The same also goes for the other members of the ministerial conference in 1818, revealing that they were at least

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acquainted with the main features of the French Constitution of 1814. But while in their eyes the Charte was primarily an illustrative example, Zentner paid close attention to the details of its provisions and recommended direct ‘takeovers’ in several respects. On 11 April, for example, Zentner suggested adopting the provision of the presidents of the two chambers being appointed: while the president of the second chamber should be appointed by the king from a list of candidates prepared by the cham-ber (cf. Art. 43 of the Charte), the president of the first chamber should ultimately be decided upon by the king alone (cf. Art. 29 of the Charte).120 Four days later, Zentner recommended adopting age limits for the members of the first chamber (Reichsräthe) from the French Constitution (cf. Art. 28 of the Charte). This recommendation was adopted unanimously by the ministerial conference:

After the provision of the French Constitution had been consulted, and its application in the Constitutional Act – essential for the practical set-ting up of the Reichsräthe – being considered appropriate, it was decided to include the following § 5 of Title VI: ‘The Reichsräthe have access to the first chamber on their coming of age, yet have a deliberative vote only on their reaching the age of 25.’121

Zentner was above all attracted by the fundamental provisions of the Charte emphasising the sovereign power of the king, which in Zentner’s eye had to be defended by all means in the future text of the Bavarian consti-tution. For him, the crown had to remain the centre of political authority, and ambitions of parliament to challenge monarchical sovereignty were to be thwarted in advance. The provisions of the French Constitution seemed perfectly apt for these needs (see Art. 13 and 14 of the Charte). Accordingly, Zentner put forward a motion on 15 April to supplement the existing con-stitutional draft:

He [Zentner; MJP] thought it necessary to express the character of the monarchy in more pronounced terms so that the royal govern-ment be safeguarded against extension of influence of the Stände in the government. It might therefore be added above, where the King is talked about, according to the model of the French Constitution: ‘The king is the supreme head of state, unites in himself all rights of state authority, and exercises them under the provisions established in the present Constitutional Act.’ ‘The person of the king is sacred and inviolable.’122

All members of the constitutional commission agreed to the need to incor-porate these provisions, which were adopted and became § 1 in the second title of the Bavarian Constitution of 1818. Thus, it is a proven fact that the

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much- cited formulation of the ‘monarchical principle’ in the Bavarian Constitution had been directly and consciously taken from the French Charte constitutionnelle, namely on the initiative of Zentner.123 His own comments reveal that by imitating the French model the ‘character of the monarchy’ should be ‘more clearly expressed’, but that even here it was not so much about copying another constitution, than completing the existing Bavarian constitu-tional draft. All in all, there is indeed no evidence that enthusiasm for the Charte or other constitutions went beyond the boundaries of rational motivation.

In such an atmosphere, the Bavarian constitutional deliberations were drawing to a close in May 1818. Unlike 1814/1815, Crown Prince Ludwig was only marginally involved in the debates given that he stayed in Italy from autumn 1817 to spring 1818, and that the Constitution of 1818 undoubtedly corresponded more to his own positions than that of 1815. Nevertheless, he confessed to Lerchenfeld that he would have preferred to introduce a municipal constitution first in order to familiarise the peo-ple with constitutional government.124 Meanwhile, the crown could have entered into negotiations with the mediatised nobles and set up a constitu-tion in collaboration with the nobility, the middle classes, the farmers and the clergy, whose representatives would finally take a vote on the constitutional draft.125 Nevertheless the Crown Prince did in fact accept the procedure for the Constitution to be enacted, and signalled his general consent to the work of the ministerial conference. In only a few matters did Ludwig express his wish for certain details to be incorporated in the constitutional text, for example that the right of the king to appoint peers was not restricted and that fiscal bills had to pass the second chamber before they were directed to the upper house. These and a few other regulations Ludwig suggested were directly inspired by the English constitutional system, which he had obviously come to appreciate in the previous years.126 However, for Ludwig, too, holding a foreign model in any degree of esteem did not go much beyond factual issues, and he underlined his wish that the Bavarian Constitution be a genuine ‘German’ one,127 in which the king was to ‘keep the balance between nobility and the bourgeoisie’.128

After his return from Italy on 15 May, Ludwig was informed about the state of the deliberations,129 and he requested some minor alterations to be made. On 22 May, the final session of the ministerial conference was held in the presence of both the King and the Crown Prince, who sanctioned the final draft with their signatures.130 On 26 May 1818, one day before the King’s birthday, the Verfassungs- Urkunde des Königreichs Baiern was formally proclaimed.

4.2.2 Baden

In a grand- ducal resolution, dated Vienna 12 January 1815, Karl re- affirmed his earlier promise to proclaim a landständische constitution in Baden and nominated a constitutional commission comprising ten members.131

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The ‘Project’132 mentioned in the grand- ducal resolution and consisting of 33 articles, dealing primarily with the organisation and competences of a future representative body, had been prepared by Marschall von Bieberstein133 and formed the basis of the commission’s work which proceeded under strict observance of secrecy.134 In their 11 sittings, the com-mission stuck close to Marschall’s outline and proposed a bicameral system, in which the first chamber should be composed of the princes of the rul-ing house and representatives of the nobility, whereas the second chamber was to be elected indirectly by resident citizens on the basis of property qualifications.135 After its completion, the constitutional draft136 was sent to Vienna in March 1815 together with detailed election regulations for the second chamber.137

Again, however, the constitutionalisation process came to a standstill due to the renewed war against Napoleon after his return from Elba, which forced the government to increase public spending even more. At the same time, a new tax system was introduced in spring 1815, which was intended to standardise existing local regulations but, though certainly an important innovation, provoked public discontent.138 Discontent continued to grow after the renewal of peace, since the government showed no intention what-soever of putting the grand- ducal promise of a constitution into practice. Thus, the first public constitutional movement in Baden got off the ground in late autumn 1815, inspired by the general ‘constitutional mood’ of the time and the constitutional promises in the German Federal Act.139 Opinions on how the political order should be defined and organised were mixed, with two different factions arguing for a constitution in Baden. One group comprised nobles, driven by their privileges and rights which had been diminished during the Napoleonic Age, the other members of the middle classes, suffering under the economic depression and high tax burdens.140

Public constitutional debate in Baden, keenly followed in the German press,141 was launched with a formal petition by 33 aristocrats to the Grand Duke, dated 2 November 1815, in which they openly criticised the state of the country. Among other things, the petitioners demanded the restoration of their former privileges and the immediate summoning of the estates as promised in the German Federal Act. Soon after this first petition, a second appeal by nobles was directed to the government, repeating the request for a restitution of traditional rights. At the same time, the government realised that there was also considerable discontent among the middle classes. The municipalities of the Main and Tauber district and the city of Heidelberg were the ring- leaders, demanding a constitution be introduced.142 The public authorities reacted by taking suppressive measures, interpreting such a stance as public agitation. Grand Duke Karl formally expressed his disap-proval of the nobility’s ‘pretensions’ in December 1815,143 and legal action was taken against several members of the middle- class initiative, mainly in Heidelberg.

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Despite the authorities’ refusal to meet the constitutional demands of these disgruntled groups,144 the constitutional question was once more on the government’s agenda. On 21 November 1815 the cabinet met in secret to discuss the future of the Baden Constitution. The two- day deliberations resulted in a formal recommendation to continue the consti-tutionalisation process to prevent the government being completely destabilised.145 A few weeks later, Wilhelm Ludwig Leopold Reinhard Freiherr von Berstett,146 the Baden deputy at the Diet of the German Confederation, put together a memorandum on the constitutional question, particularly as to whether a mono or bicameral system should be introduced. Berstett emphasised that the French Revolution, together with British parliamentary practice and the system of the Charte proved that a bicameral system would be more advantageous. In a one- chamber system, ‘scholars, advocates and clerks’ had complete legislative power, and any attempt to create seats for ‘special’ groups would immediately be interpreted as a step towards inequality. Furthermore, in such a system the monarch’s veto within the legislative process would be interpreted as an offence against the unanimous wish of the people, whereas in a bicameral system the crown had more possibility to exert its influence. Above all, a bicameral system would fulfil the aspira-tions of the nobility and integrate the aristocracy into the political system without restoring antiquated rights and qualifying state- centred hierarchical administration, which had been pushed through in the past.147

In view of this overwhelming support in the government and among the higher administrative bodies for a constitution, Grand Duke Karl finally issued a decree in March 1816, which was not only a promise in writing to pass a landständische constitution, but also set the date for the first Landtag to convene on 1 August the same year.148

This commitment reflected the hope of the state authorities and, above all, of the Grand Duke to set the public mind at rest. However, the renewed promise of a constitution was not received with the acclaim expected. The main reason for continuing dissatisfaction was that the constitutional rights to be guaranteed remained vague, and that the constitution was to be imposed by the monarch without involving the people.149 Similarly, some members of the aristocracy continued to express their dissatisfac-tion about the fact that their former requests had not been fully taken into account. The authorities took repressive measures, which, in turn, were countered by renewed interventions by the nobility.150 A lengthy grand- ducal decree (7 May 1816) followed that chastised the behaviour of the aristocracy mercilessly and made clear that none of the estates had a legitimate claim to a privileged position, particularly not in the drawing up of the promised constitution.151

Over the summer of 1816, two completely new constitutional drafts were prepared. The first was written by Ernst Philipp Freiherr von Sensburg, a privy councillor and confidant of the Grand Duke who had been greatly influenced

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and moulded by eighteenth- century political and juridical thought.152 His draft was a direct answer to the declared aspirations of the nobility and defined the prerogatives of the crown extensively, while parliamentarian rights were kept to a minimum. Above all, his unorthodox proposal of a one- chamber system without any special representation of the aristocracy was an unequivocal reply to the political grievances of the nobility.153

The second draft was penned by a person who until then had not been in a leading administrative position, but would become a man of crucial importance in the future developments of the constitution: Karl Friedrich Nebenius.154 Born 29 September 1784 in Rhodt (Rhineland-Palatinate), he studied Law, Mathematics and Natural Sciences at the University of Tübingen, where be became a passionate admirer of English institutions. Nebenius’ pro-fessional career started in Rastatt, where he worked as a lawyer, before going to Besançon and working temporarily in the French administration. When he was offered a permanent post in the French civil service, he refused, and in 1807 he was appointed secretary in the Baden Ministry of Finance, but returned to France in 1809 to continue his studies. Back from Paris, Nebenius was appointed Kreisrat (‘district councillor’) in 1810 and was offered the posi-tion of a Finanzrat (‘financial councillor’) in the Ministry of Finance in 1811. With recourse to his profound knowledge of the French financial system and in cooperation with his old fellow student Friedrich Böckh (1777–1855)155 he got started on an ambitious project of reforming the Baden fiscal system and succeeded in abolishing all custom duties within Baden (1812). In view of his commendable service in the ministry, Nebenius achieved a good repu-tation and gained the trust of Sensburg, his direct superior. Consequently, Sensburg involved the young civil servant in the preparations of a Badenese constitution in summer 1816.156

After Nebenius had made his own personal assessment of Sensburg’s draft, which had not yet been submitted to the Grand Duke, Sensburg asked him to draw up his own version. Nebenius agreed, provided that he be granted sufficient time to undertake necessary research.157 Though familiar with juridical and economic matters, Nebenius clearly wanted to deepen his knowledge by taking a close look at the pertinent literature on public law, which Sensburg obviously had not done. However, there was no time left for such research, and Sensburg insisted the work be completed within a few days.158 Sensburg submitted this draft to Grand Duke Karl without mentioning Nebenius’ authorship, and a second smaller commission was convened in order to examine the existing proposals.

Nebenius’ draft had adopted Sensburg’s idea of a one-chamber system – ‘Art. 28. All members constitute an undivided assembly’, yet it contrasted sharply both stylistically and in respect to content. Changes from the original Sensburg draft could be found, for example, in that tax assessment became the basis for the division of the country into electoral districts and the strength of their representation (see Art. 17). Perhaps even more

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importantly, Nebenius had reinforced the role of parliament considerably. The Landstände were granted extensive rights in ordinary (Art. 39, 41), con stitutional (Art. 40) and fiscal legislation (Art. 42, 43, 44, 45, 46), a limited role in the law- making process and the authority to lodge formal complaints against abuses of the state administration and breaches of the constitution (Art. 52). In the same vein, Nebenius extended Sensburg’s limited charter of fundamental rights (Art. 64).

Nebenius’ draft was finally accepted, even though in a somewhat diluted form, by the three members of the commission, including Sensburg. Among other things, the rights of the Landstände were not as extensive as Nebenius had envisaged, and the catalogue of fundamental rights granted by the state omitted completely.159 On 4 July 1816 the commission finished its delib-erations,160 and Marschall, the driving force behind the first constitutional commission in 1814/1815, was invited to write a memorandum on the final draft.161 Everything seemed to indicate that the official proclamation of the constitution was imminent, although 1 August as the date set for the first convening of the Landtag was unlikely to be met. But just two days before 1 August, on 30 July, Karl surprisingly informed the public that the proclama-tion of a new constitution would have to be postponed on the grounds that the constitution of the German Confederation had not yet been completed.162

The uncertainties as to the future of the Bundesverfassung might indeed have played a role in the Grand Duke’s resolution, but it was obvious that reference to the decision- making process in Frankfurt was an opportune means to drag out the final decision about the future constitution. In Baden as indeed all over Germany, the Grand Duke’s announcement did not find much sympathy, and the public voiced their ire and frustration via the press.163 They condemned the Grand Duke for having postponed the constitution ‘last minute’, particularly since other German states, such as Sachsen- Weimar-Eisenach, had already managed to introduce constitutions without waiting for a decision by the Bundestag. Moreover the government came under vehement attack for not even considering involving the people in the constitutionalisation process.164

For the time being, the constitutionalisation process had been brought to a standstill, but the situation would alter in the second half of 1817, when important inner- governmental reshuffles heralded an alteration in policy.165 The most important change was without doubt the recall of Freiherr von Reitzenstein.166 He urged Karl to take immediate political measures in the face of Baden’s overwhelming problems: administrative, financial and political. Such seemed all the more necessary, since Karl’s only son, heir to the throne, died in May 1817 only one year old, and the Grand Duke’s own physical health was steadily deteriorating. For this reason, a House Law, published in October 1817, attempted to at least regulate the as yet uncertain succession question in Baden by acknowledging the hereditary titles of the counts of Hochberg, a lateral line of the ruling dynasty, and by declaring the Grand

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Duchy ‘for ever an indivisible and inalienable whole’.167 This was, however, clearly not enough, and a number of foreign powers intensified their exhor-tations for the Badenese government to speed up constitutionalisation. From Berlin, Stuttgart and even St. Petersburg,168 repeated recommendations for a ‘constitutional solution’ were directed to Karlsruhe.169

In December 1817, the Grand Duke ordered a special committee to deal with the German Federal Act and Article 13 in particular. Its mem-bers included not only Reitzenstein and Berstett, but also Karl Friedrich Nebenius. At the beginning of April 1818 a memorandum was sent to the Grand Duke, repeating the need for a constitution, particularly because Bavaria and Hesse- Darmstadt had already announced the release of a constitution and because a further delay would turn public opinion, both within and outside of Baden, against the government. On the basis of their advice, and after much hesitation, Karl ultimately entrusted the members of the commission with the drawing up of a new constitutional draft on 28 April 1818.170

Rather unexpectedly, it was Nebenius who was appointed ‘speaker’ (Referent) by the Grand Duke, who had been informed that Nebenius and not Sensburg was the true author of the 1816 constitutional draft.171 Karl personally instructed the commission to submit a draft providing for two chambers, and not, as suggested in 1816, only for one. It is likely that the arguments for a bicameral system, which had been put forward by several of his advisors and reflected the common sense of contemporary political thought, had made Karl change his mind. Moreover, his anger regarding the protests of the nobility in 1815 and 1816 had abated, and in his eyes two chambers now seemed to be reasonable. In his instructions for the com-mission and Nebenius in particular, Karl emphasised that monarchical sovereignty had to be a key element of the new constitution and that the representative body should be granted the right to take part in legislation, but be rejected the right of initiative. Otherwise the commission was given plenty of leeway: ‘Earlier deliberations and drafts were not touched upon, but [it was] left to the committee, without consideration thereof, to submit to the Grand Duke an outline of a constitutional act corresponding to the needs of the country.’172

As the work of the commission had to be finished as soon as possible, Nebenius immediately got started on a constitutional draft, without actually taking the collected material and different drafts from the earlier delibera-tions into consideration.173 Nebenius could now put to good use the time he had invested since 1816 in intensive research, well aware of the fact that, sooner or later, he would be consulted again: ‘I had already been told in 1816 that I should be called upon to take part in the deliberations on the Constitution. I procured further literary resources, continued to study and came up with ideas completely different to those I had been guided by in my first draft’.174 In order to ‘correct’ and ‘back up’ prior views, ‘I did not want

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to leave unread any of the many Constitutions which have been issued over many years, [and] no good book on the matter written in a language known to me, in as far as I was able to obtain them’, Nebenius explained in a letter to Reitzenstein, dated 5 December 1818.175

Nebenius’ fragmentary notes and preliminary studies on the constitu-tional draft in his Nachlaß reveal that he had done his utmost to meet these standards: he had gone into the whole question and notion of ‘constitution’ thoroughly, and in doing so had analysed a number of foreign constitu-tional systems.176 Among others, he had examined the English Constitution, the Bavarian Constitution of 1808, the French Charte, the draft of the Württemberg Constitution and others which were not given much attention in Germany at the time, for example the Norwegian Eidsvoll Constitution and the Polish Constitution of 1815. His constitutional studies were not restricted to a mere comparative analysis of the structure and content of said constitutions, but also encompassed more general politico- theoretical considerations and reflections. Nebenius paid particular attention to the principle of representative government, its historical roots and development in different parts of Europe. His aim was to trace the genesis of representa-tive government not only in England and France, but also in Germany,177 based on the conviction that there was neither a substantial nor qualitative distinction between ‘representative’ and ständische constitutions: ‘Wherever there are Stände, which send elected delegates, there is representation. The question is only what is being represented. Obviously, delegates are elected because not everyone can be present.’178 Nebenius was in no doubt as to the value of a representative system and that of a monarchical order. For him, the essence of a ‘constitutional monarchy’:

consists in, as the word itself implies, the legal and uniform order of the entire public state, its preservation by the decisive voice of the repre-sentative body […], and consists in the moral influence of the popular will even in rights pertaining to the king alone (war, peace and nomina-tion of ministers, etc.), which however does not exclude the king’s own independent strong will in their execution, but does to the contrary presuppose it.179

Nebenius’ comments reveal his open- mindedness and liberal attitude, but also, that in his eyes the crown had to take a leading position in a well- organised body politic. For him preserving the monarchische Princip180 was as indispensable as the idea of basing a monarchy on the principle of the sovereign nation was inconceivable:

Popular sovereignty can only exist where according to the constitution the people or their representation alone have the supreme legislative power or where they alone have at least the constitutional authority

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to abolish unilaterally potential limitations. Popular sovereignty is irreconcilable with monarchy; where it exists, the king is king only in name alone, not in substance, he would be a mere civil servant. Therefore it is correct and proper that one cannot talk about popular sovereignty in a monarchical state.181

In his eyes, history proved that constitutions with a strong democratic component were doomed to failure and a ruin to their nations:

Constitutions, which are aimed at the tightest limitation of a regent’s power and at the highest degree of liberty of the people, or rather those who consider themselves to be its main parts, have become the death of the independence of large nations because the representatives of the nation, despite their being separated in parties, nevertheless have a shared interest against the regent and the common good, in the demise of which they have found their own.182

Thus, Grand Duke Karl’s instructions for the constitutional commission to set up a monarchical- constitutional system in Baden corresponded with Nebenius’ personal convictions regarding the best constitutional solution for the political needs of the time. In Nebenius’ rational analysis, it was purely an act of reason to dismiss those constitutions which – in his eyes – had obvious deficiencies and use those as an inspiration or even model which had passed the test of time.

Under these premises, Nebenius drew up the future constitution of Baden in 1818 in unbiased openness to foreign constitutional examples, but without a clear preference for one specific model. After only a few weeks, Nebenius submitted his draft together with an outline for electoral regula-tions to the other members of the commission. Only minor changes were suggested by the committee, who appreciated the fact that Nebenius’ text contained nothing that violated the monarchical principle and no ‘essential innovations’, but was based on existing institutions and reliable maxims of government:

The draft, which I [Nebenius; MJP] submitted, was acknowledged as containing no provision which might injure the essential principles of monarchical government or such [provisions] which according to their content could be considered as unsuitable for inclusion in a consti-tutional law, or, with respect to the condition of the nation, basically inadmissible. The draft of the Constitutional Act was endorsed as essen-tially containing no fundamental innovations other than the necessary provisions regarding the composition and power of the Stände, but that its [the draft’s] other provisions were based on existing institutions or com-monly accepted maxims of government, and that it did not anticipate

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developments in public affairs following the path initiated by the setting up of the Stände by a large number of pre- emptive provisions.183

The final editing of the constitutional document in August took place in Griesbach, the Grand Duke’s summer residence, but no further changes were made, and Karl accepted the draft with one single request for an alteration to the civil list.184 On 29 August 1818, ten years after the first real attempt to put together a constitution for the Grand Duchy, the Verfassungs- Urkunde für das Großherzogthum Baden, arranged in five titles and 83 articles, was published in the country’s law gazette.185 The constitutional era had dawned in Baden.

4.2.3 Conclusions

In some respects the genesis of the Bavarian and Badenese Constitutions of 1818 is remarkably similar: both drafting processes were triggered by rulers making formal promises at the beginning of the Congress of Vienna in a mood of political realignment after the Napoleonic Wars, and in both cases the drafting process came to a close about three and a half years later, namely in spring and summer 1818 respectively. In Bavaria and Baden, constitutional commissions were appointed, consisting exclusively of government members, ministry officials and high- ranking civil servants, while external experts were excluded. Neither in Bavaria nor in Baden was the genesis of either of the constitutional drafts directly linked with the public constitutional discourse of the time. Nevertheless, they did con-tain important impulses, most evident in the omnipresence of the term ständische Verfassung in the debates of the constitutional commissions. In both states, the constitutionalisation process was interrupted several times, but relaunched again and again due to the overwhelming economic and political problems. Moreover, both Bavaria and Baden had to deal with outside interference in their domestic constitutionalisation processes, and in both cases the fear of having an inauspicious constitution imposed by the German Confederation was a decisive factor in speeding up constitutional deliberations in early 1818. Both constitutionalisation processes took place under the tenet of ‘monarchical sovereignty’, with the result that their constitutions were proclaimed as acts of grace by the ruler and gave written form to the crown’s claim to a leading role in both political systems.

Despite the similarities, which may seem to confirm Southern German constitutionalism as a uniform phenomenon, a closer examination also reveals major differences. This is especially true for the tangible ‘inputs’ during the drafting stage of the texts. In Baden, a confident constitutional movement – actively supported by the German press – made itself felt from late 1815 onwards. In Bavaria, a comparable constitutional movement did not get going between 1814 and 1818. But the absent voice of the press and the public, lobbying for a constitution, were compensated for by royal

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support for constitutionalisation: Crown Prince Ludwig’s plans for the constitutionalisation of Bavaria helped to initiate the commission in late 1814, his comments on the constitutional draft in 1815 changed the direction of the deliberations, and his dismissal of Montgelas in February 1817 meant a final constitution was now in sight. The rulers themselves, however, were more of a brake than a catalyst: while King Maximilian I Joseph saw himself as an enlightened absolutist ruler and kept his distance from any constitu-tional project whatsoever, Grand Duke Karl’s hesitant, even indecisive and vacillating, nature dragged out the Badenese constitutionalisation process for years. This role of the monarch was in stark contrast to Louis XVIII, who had monopolised and pushed forward work on the Charte.186

Nevertheless, the drafting of the constitutional text in Bavaria and Baden had a very ‘personalised’ character, too, since two individuals exerted formative influence: Georg Friedrich von Zentner and Karl Friedrich Nebenius. Zentner had played an important role in the constitutionalisation of the Bavarian kingdom since 1806, and had been involved in the drawing up of the 1808 Constitution. Subsequently, he was a member of all constitutional commissions and became the key figure in the final phase of the constitu-tional debate in 1818. Zentner’s long- term personal involvement reflected the continuity of the constitutionalisation process. As a result of this ‘organic development’, certain factors remained constant and the Constitution of 1818 incorporated many elements of its predecessor of 1808. In contrast, the constitutional development in Baden did not follow one single track, but was characterised by erratic shifts. Over the years, a range of constitutional drafts were put together by different individuals and commissions with no immediately recognisable connections between the texts, and the basic principles themselves often contradictory. Even Nebenius’ own drafts of 1816 and 1818 did not have much in common. This lack of continuity, however, was more a result of vague or non- existent guidelines laid down by the Grand Duke, compounded by the fact that there was no constitutional tradition in the country which might have served as some kind of ‘natural signpost’. As a result, the desire to experiment was strong, manifest most clearly in the temporary renunciation of bicameralism in favour of a one-chamber system, including an increased willingness to accept foreign constitutional models. Such models did not play the role in Bavaria as they did in Baden, where references to other constitutions was a common element in virtually all con-stitutional deliberations from early 1815 onwards.

Even more importantly, however, Zentner’s approach to the constitu-tional challenge was fundamentally different to that of Nebenius, even though both shared a juridical background. Zentner had grown up and been educated before 1789, while Nebenius was very much an advocate of the generation shaped by the Revolutionary Age and its upheavals. Essentially, Zentner continued to stick to the legal categories and the corporative order of the eighteenth century, which he had advocated as university professor in

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Heidelberg, while Nebenius had been very much influenced by the paradigms of rationalism and efficiency he had experienced in the Napoleonic adminis-tration, going hand in hand with a remarkable impartiality towards foreign legal and constitutional models.187 Nebenius lacked in- depth knowledge in constitutional matters at the time he was entrusted with the drafting of a Badenese constitution, as he himself bluntly confesses in his writings. All the stronger were his efforts, between 1816 and 1818, to acquire the necessary expertise by studying politico- theoretical literature and constitutional texts, from which he finally filtered out those elements he deemed to be of value and worth adopting in his constitutional draft. That does not imply, though, that Zentner ignored external influences; but as far as he was concerned, incentives and imports were more specific and predominantly supple-mented his own tenets. Under these premises, Zentner strove towards the monarchical principle of the French Charte, which he deemed necessary to emphasise the very ‘character of the monarchy’ in Bavaria.188

Having said this, it should not be insinuated that Nebenius’ reception of foreign models was unbiased and objective. For him, as for most of his liberal- minded contemporaries, revolutionary constitutionalism and especially the concept of popular sovereignty was unthinkable: not only since the implementation of such a constitutional system was virtually impossible in the conservative- restorative atmosphere of the post- Napoleonic Age, but also because he personally shared the common belief that ‘democratic’ constitutions were unreasonable, dangerous and hence unjustifiable. Thus, the number of models on which the Baden Constitution could be feasibly based shrank considerably. Nevertheless, the spectrum of foreign reference points remained broader in Baden than in Bavaria, where the claim to ‘tradition’ and a constitutional Sonderweg was incomparably stronger.

4.3 Text of the Constitutions

4.3.1 Bavaria

The text of the 1818 Bavarian Constitution was divided into a preamble, in which the reasons for enacting the constitution and its main guarantees were reiterated, and ten ‘titles’ (Titel), containing 122 paragraphs.189 Despite the fact that its general structure does not bear immediate resemblance to other texts, there are clear parallels between the Bavarian Constitution and particularly the Charte. Similarly to the French Charte, the tone of the Bavarian Constitution is one of a voluntary act of monarchical self- restraint, vehemently repudiating any form of popular sovereignty: ‘granted […] of our own free will and determination’,190 and claiming to be the product of pure monarchical sovereignty, the new Bavarian Constitution of 1818 did turn away from the terminology of its predecessor of 1808 and was not enti-tled Konstitution, but Verfassungs- Urkunde, thus emphasising the break with

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revolutionary and Napoleonic constitutionalism.191 Other central features from the French Constitutional Charter had also been ‘borrowed’ such as the bicameral system with an influential first chamber, the king’s exclusive right of initiative in legislation and the right of the monarch to dissolve and summon parliament. A close textual analysis reveals that even the wording of many articles is similar. This does not only go for the formula of the ‘monarchical principle’ the adoption of which Zentner had initiated in the constitutional commission,192 but also for a number of other provisions,193 for example the simultaneous convening of the two chambers ( Verfassungs- Urkunde VI. § 16, Charte Art. 25), the leading role of the lower house in fiscal legislation (VU VI. § 18, Charte Art. 47), the right of parliament to introduce legislative petitions (VU VII. §19, Charte Art. 19), the procedure to be taken after the dissolution of the chambers (VU VII. §23, Charte Art. 50), the immunity of parliamentarians (VU VII. § 27, Charte Art. 52), the sanctioning and proclamation of bills (VU VII. § 30, Charte Art. 22) and the organisation of the judiciary (VU VIII. § 1, Charte Art. 57). The catalogues of fundamental rights in the two constitutions similarly show a number of literal analogies and it is likely that the provision of the Bavarian Constitution that: ‘no one shall be denied a proper judge’, that ‘no one shall be apprehended or prosecuted except in cases defined by the law and in legal form’, and that ‘no one shall be forced to relinquish his private property for public purposes unless a formal decision has been made […] and indemnification paid in advance’ (IV. § 8) had been directly taken from the French Charte (Art. 62, 4 and 10). The guarantee of unrestricted access for all citizens to all public posts is worded identically, too (VU IV. § 5, Charte Art. 3).

In view of such striking similarities it is not surprising that it has been frequently assumed that ‘the main points of the Bavarian constitutional act of 1818 have their origins in the Charter of Louis XVIII’.194 However, textual parallels can be found with other constitutional ‘models’, too, particularly with the (royal) draft of the Württemberg Constitution (1817) and the Bavarian Constitution of 1808. It can be argued that the text of the Württemberg Constitution was itself based on the Charte and that the recep-tion of the Charte in Bavaria was hence only ‘mediated’.195 This does not explain, however, the taking on of provisions from the Constitution of 1808, which are, indeed, more in number than those from the Charte. Especially sections II. (Von dem Könige und der Thronfolge, dann der Reichs-Verwesung), IV. (Von allgemeinen Rechten und Pflichten) and IX. (Von der Militaire-Verfassung) recapitulate provisions of the 1808 Constitution.196 A number of articles in the two constitutional texts are even worded identically (for example, VU II. § 2 and 1808 II. § 1, VU VIII. § 5 and 1808 V. § 5). In purely quantitative terms, the Bavarian Constitution of 1818 was therefore based more on its domestic predecessor of 1808 than on a foreign model.

However, textual parallels are only of limited use in determining the (non-)importance of certain constitutional models and are not reliable proof

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of actual imports. The meaning and implications of similar constitutional arrangements, even if identical in wording, can differ significantly from constitution to constitution due to the individual cultural and political backgrounds, and legal traditions. Thus, even an exhaustive demonstration of parallels between constitutions can only be of limited value if the content and importance of norms are not analysed in their respective contexts.197 Likewise, resemblances are not necessarily the result of the wish to import something new, but can be due to the fact that one constitution serves as a ‘supplementary tool’ in the editing process to give existing (legal) procedures and institutions a ‘constitutional’ format. In the Bavarian constitutional commission’s deliberations, such pragmatic references to other constitu-tions played a major role, and it is with this in mind that the similarity between the provisions guaranteeing property rights and habeas corpus as in the Charte and the Bavarian Constitution of 1818 have to be inter-preted:198 the result of ‘technical takeovers’, which were not in themselves completely innovative for Bavarian constitutional law. Moreover, it can be assumed that by adopting a particular constitutional system, such as the constitutional monarchy, certain constitutional settings and institutions were likewise adopted since the two are inseparably bound. To put it another way: the decision to set up a constitutional monarchy in Bavaria automatically triggered the implementation of fundamental institutions representing the ‘hard core’ of this constitutional type. Although seemingly obvious, this observation is frequently neglected in comparative law studies, which suggest a direct transfer between two constitutions by stressing the fact that the cases in question have the same institutions. In this context, the Bavarian Constitution of 1818 was as much the written expression of prevailing ideas of ‘(ideal) constitutional government’ as the French Charte constitutionnelle: ideas, which were to a large extent built upon the perception of English constitutional law.

Nevertheless, this did not mean that the French and Bavarian constitu-tions had to be quasi- identical. Among the main differences is that the Bavarian text of 1818 did not yet grant full equality under public law, manifest in the explicit differentiation between ‘General Rights and Duties’ (Titel IV.) and ‘Peculiar Rights and Privileges’ (Titel V.). There is no such dis-tinction – essentially preserving a number of pre- revolutionary rights of the nobility in Bavaria – in the French Constitution of 1814. The first article in the Charte leaves no doubt that Les Français sont égaux devant la loi, quels que soient d’ailleurs leurs titres et leurs rangs. Maintaining a legal ‘ two- class soci-ety’ in Bavaria contradicted the equality paradigm in the Constitution’s own preamble, promising ‘the same calling to the duty and the honour to bear arms’, and was therefore severely criticised by Liberals of the period.199 Yet, this apparent inconsistency was willingly accepted by the Bavarian government, who deemed the perpetuation of legal privileges necessary to anchor the nobility to the new constitutional order and win a powerful

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ally. The aim to strengthen the conservative element in the political system by endorsing the nobility becomes clear in the composition of the two chambers of the Assembly of Estates (Ständeversammlung). Unlike in France, where the right to become a member of either was not tied to a particular status,200 the Bavarian Constitution of 1818 not only established the first chamber (Kammer der Reichsräthe) as a representation of the land- owning nobility,201 but also reserved one eighth of the seats in the second chamber (Kammer der Abgeordneten) for titled aristocrats (IV. § 9 a).202 In this – and other – respects the Bavarian Constitution perpetuated traditional forms of corporative government and thus stood in stark contrast to modern repre-sentative systems. The whole election procedure for the second chamber was based on representation of class, since clearly defined Klassen elected a set number of representatives at the level of the ‘Electoral Government District’ (Regierungsbezirk; VI. § 11). Most groups of the population were represented in one way or another, but disproportionately so, with titled landowners and the clergy significantly overrepresented (IV. § 9). In this respect, the Bavarian Constitution of 1818 was much more ‘conservative’ than its predecessor of 1808, which did not make such class qualifications, and the rejection of National-Repräsentation in favour of Ständeversammlung was not merely terminological.203

While the Bavarian Constitution preserved anachronistic elements of the pre- revolutionary period, for example by keeping privileges of certain social groups, in the way the second chamber was arranged, and the regulation that the Assembly of Estates not be a permanent body but only convened every third year for a period of no longer than two months (VII. § 22), the text did include a number of trend- setting innovations. Some provisions clearly went beyond those of the French Charte, especially as far as the constitu-tional rights of the chambers were concerned. The legislative competences were quite similar in France and Bavaria, encompassing above all the right to decide upon draft laws submitted by the crown, including financial and budgetary legislation,204 but the right of petition and the accountability of state officials were more distinct in the Bavarian Constitution than in the Charte. The Bavarian text not only created the right of the chambers to submit legal petitions as an early form of parliamentary legislative initiative (VU VII. § 19 and 20), as the Charte had done (Charte Art. 19–21), it also extended this ‘right of appeal’ to all citizens (VU VII. § 21).

This idea of petition as both ‘appeal’ and ‘complaint’, which did not appear in the French Charte, had its roots in the British constitutional system and went hand in hand with a comprehensive understanding of ‘accountable government’.205 While the Charte provided for limited liability of royal ministers (Art. 55 and 56), the Bavarian Constitution of 1818 extended accountability to include all state officials for any violation of the Constitution (X. § 4–6).206 What was particularly innovative was that these rights were set down in a specific section of the Constitution,

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entitled ‘Of the Security of the Constitution’ (Von der Gewähr der Verfassung). Realising that the Constitution needed some kind of special protection, the Bavarian Constitution – unlike the Charte – made a clear distinction between ‘normal’ and ‘constitutional’ legislation, setting up a procedure to change or amend the Constitution, which required a qualified majority of both chambers (X. § 7): ‘For a valid resolution in this most important matter, the presence of at least three- quarters of the members attending the assembly in each chamber and a majority of two- thirds of the votes is required.’

All in all, the text of the Bavarian Constitution of 1818 resembles a patchwork quilt of foreign and domestic components, of conservative and liberal elements, traditional and modern. The French Charte served as an explicit as well as implicit ‘idea contributor’,207 but at the same time the fathers of the Bavarian Constitution were guided by other points of refer-ence, too: pre- revolutionary landständische principles, the Constitution of 1808 and not least English constitutional law. The text of the Bavarian Constitution likewise contained its own innovations, particularly in establishing tangible instruments to guarantee the preservation of the Constitution. The heterogeneous character of the text may well explain why the French envoy in Munich at the time saw no reason whatsoever to regard the Bavarian Constitution as an imitation of the French Charte in his official reports to Paris.208

Yet, what these two constitutions actually shared and set them apart from the English constitutional system was the principle of monarchical sovereignty, which turned Montesquieu’s concept of a separation of powers upside down in declaring the monarch to be a constitutional ‘supra-institution’. Even in this respect it seems that the Charte constitutionnelle was not necessarily a ‘material’ model for adopting the monarchical principle, that is a true inspiration in the constitutionalisation process, introducing an entirely new element into Bavarian constitutional law. The Charte was more a formal(istic) model, which gave the pre- existing monarchical claim to pouvoir constituant a clear, tangible constitutional form. Even in the Napoleonic Age the desire to concentrate all state authority in the crown had become apparent. The French Charte finally provided that formula, by which the promise of a constitution could be honoured without abandon-ing the claim to undivided sovereignty; or, to put it in the words of Georg Friedrich von Zentner:

In our state, the regent unites in his person undivided sovereignty, our present monarch has only restricted Himself and his successors in the execution of certain governmental rights out of consideration for former ständische constitutions and the guarantee given when they were abolished; […] state power is thus not shared but only restricted according to the provisions laid down in the Constitutional Act.209

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4.3.2 Baden

The proclamation of the first constitution in Baden in late August 1818 came only after a protracted constitutionalisation process. What distin-guished the Verfassungs- Urkunde für das Großherzogthum Baden210 from other constitutions of the time was not only its compelling nature,211 but also the fact that it was the product of one single man, Karl Friedrich Nebenius. Unlike his first constitutional draft of 1816, which ‘gives little attention to the other constitutions of this period and has, demonstrably, not taken anything verbatim from them’,212 Nebenius’ text of 1818 was preceded by his intensive studies of constitutional law and based on ‘existing institutions or commonly accepted maxims of government’.213

But what exactly were the ‘existing institutions’ and the ‘accepted maxims of government’, on which the Baden Constitution was founded, and which concrete (foreign) constitutions had Nebenius consulted? In his papers there are only a few hints as to his sources and potential models. The only explicit reference is to the ‘form’ of the Polish Constitution of 1815, a constitution considered to be the personal work of Tsar Alexander I, whose dynastic rela-tions made him the most important advocate of Baden interests among the great European powers:

The views of the Emperor were already well- known and I was able to suppose that at least the form of our [Constitutional] Act […] would be acceptable to him, since I had chosen the Polish Constitution, which, as was believed, the Emperor himself had penned.214

In referring to the Polish Constitution, Nebenius not only nurtured the hope of gaining the support of Tsar Alexander himself, but also the assent of Grand Duke Karl, whom Nebenius expected to be more willing to accept a draft fashioned after a constitution possibly written, but in any case promul-gated, by his own brother- in-law. A textual comparison of the constitutions of Baden and Poland does indeed reveal similarities. The overall structures of each text do resemble each other, too. The first ‘title’ (Baden) and ‘book’ (Poland) respectively, for example, containing general regulations regard-ing the political system, is followed by a detailed enumeration of citizens’ fundamental rights in the second section.215 What is more, the general principles of the constitutions are the same (strong emphasis of monarchical power, bicameralism and so on), and the wording of several articles is similar, too.216

What has to be borne in mind, however, is that the French Charte of 1814 had been the most important point of reference for those involved in draw-ing up the Polish Constitution.217 Therefore, one may deduce an indirect transfer from France to Baden via Poland, and there are indeed a number of identical provisions in all three texts. The correlations between the Charte, the Polish Constitution and Nebenius’ text have been commonly overlooked

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in most enquiries on Baden constitutionalism. One clear example for the link between them is defining monarchical inviolability. In the French Charte, the corresponding expression in Article 13 is: ‘La personne du Roi est inviolable et sacrée.’ This identical phrasing can be found in the Polish Constitution: ‘§ 36. The person of the King is inviolable and sacred’, and also appears in the Baden Constitution: ‘§ 5. Seine Person [the Grand Duke; MJP] ist heilig und unverletzlich.’218 Another indication of such a transfer are the rules for convening and dissolving the parliamentary chambers. In the French case it is codified in article 50 that: ‘Le Roi convoque chaque année les deux chambers: il les prorogue et peut dissoudre celle des députés des départments.’ In the Polish Constitution (§ 87) it is similarly written that: ‘The King alone can summon, adjourn and dissolve the Sejm’, while the Baden Constitution determines that: ‘§ 42. Der Großherzog ruft die Stände zusammen, vertagt sie und kann sie auflösen.’219

The texts of the Badenese Constitution and the Charte, however, are not exclusively linked via the Polish Constitution of 1815. Many provisos of the 1818 Baden Constitution have obviously been taken directly from the French text, for instance those on equality of taxation (§ 8 and Charte Art. 2), the freedom of conscience (§ 18 and Charte Art. 5), the guarantee of state creditors (§ 22 and Charte Art. 70), the formula of the absolute need for parliamentary approval of new taxes (§ 53 and Charte Art. 48) and the provision of special legislative powers of the king in the event of a state of emergency (§ 66 and Charte Art. 22 and 14). Other articles of the Charte appear in Nebenius’ text in the wording of the Bavarian Constitution of 1818, which had been proclaimed just a few months prior to that of Baden. One particular example is the ‘monarchical principle’, which similarly became the key formula of the Constitution of Baden: ‘§ 5. Der Großherzog vereinigt in Sich alle Rechte der Staatsgewalt, und übt sie unter den in dieser Verfassungsurkunde festgesetzten Bestimmungen aus.’220

Thus, it can be assumed that the Charte – directly or indirectly – was of crucial importance in the drawing up of the Baden Constitution, even though Nebenius does not explicitly mention the French text as a model. Notwithstanding, it was not only French constitutional norms which found their way into the text of the Baden Constitution. Provisions of Bavarian origin were adopted, too, sometimes even verbatim, which underlines the fact that the Bavarian Constitution of 1818 was not only a ‘filter’ for the Charte, but also an independent model. The phrasing of the Bavarian and Badenese constitutions is similar especially regarding the re- electability of members of the second chamber (§ 40 and VU VI. § 13), the limits of the Stände in approving new taxes (§ 56 and VU VII. § 9) and a number of judicial guarantees (§ 14 and VU VIII. § 3 VIII. § 5 and IV. § 8). Moreover, Nebenius followed the Bavarian example in three fundamental innovations which were not in the French Charte: in declaring all state officials accountable for observing the constitu-tion (§ 7),221 in extending the right to petition to all citizens (§ 67 para. 2)222

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and in setting up legal limits to any revision of the constitution: ‘§ 64. No law that supplements, explains or changes the Constitutional Act can be passed without the approval of a majority of two- thirds of the members present in each of the two Chambers.’223

Nebenius was not solely attracted by the Charte and the Bavarian Constitution, but was also open towards other models, including the draft of the Württemberg Constitution (1817). Therefore, it is not surprising that more than two thirds of the paragraphs of the Baden Constitution are more or less directly taken from constitutional drafts and texts already existing at the time. Be that as it may, the role of textual ‘imports’ should not be overrated, since most of them can be regarded more as constitutional ‘common sense’ than basic innovation.224 Nebenius himself emphasises this fact in his report on the constitutional draft put before the commission of 1818. There he mentions that in order to defend his draft submitted to the commission, he primarily referred to ‘diverging provisions, which existed elsewhere or could be found in still existing ländständische constitutions or drafts under discussion’, justified with the ‘dissimilarity of political, eco-nomic and social circumstances’.225 This illustrates the point that Nebenius did not have to argue for the idea of borrowing from other constitutions; on the contrary he had to justify those specific regulations differing from existing institutions.

Perhaps the most original provisions in Nebenius’ text were those on the composition of the second chamber of the Stä nde- Versammlung and the election procedure of its members. The Constitution of Baden was the first in post- Napoleonic Germany in which traditions of corporative government were deliberately thrown overboard in favour of modern ideas of ‘political participation’, based on the principle of equality before the law and uniform parliamentary representation of the people. The use of landständisch obscures the fact that the term was not meant literally, but represented a cliché of contemporary constitutional discourse and was a handy and necessary tool to purportedly agree with the German Federal Act.226 It is in this context that the preamble of the Constitution with its references to ‘Landständische Verfassung’ as ‘an institution guaranteed to all German peoples’ and § 6: ‘The Grand Duchy has a ständische constitution’ has to be read.

The representative system had developed and gained acceptance in England during the seventeenth century and had found a prominent advocate in Montesquieu, for whom the legislative body had to be built upon représentation and not identité, as later maintained by Rousseau in his concept of the ‘general will’.227 The idea of a representative constitution later became an integral part of revolutionary constitutionalism228 and was also finally adopted by the Charte in 1814, even though the ‘revolutionary’ term ‘representation’ was not explicitly mentioned. In Baden, the idea of a representative government had already been documented in the draft of

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the constitutional commission of 1814/1815. There, a system of 41 electoral districts was planned, and in each of these districts one representative was to be elected, no matter to which estate he belonged (cf. Art. 11 and 14).229

Yet, given the fact that elements of corporative government remained in the draft, the representative constitution was only fully realised by Nebenius in 1818. Analogous to the French Constitution of 1791 and the Charte, the second chamber in Baden230 was composed of 63 representatives of certain territorial units, namely towns and Ämter (districts) as equivalents to the French départements (§ 33).231 Thus, for the first time in German history, the representation of all electors by a parliamentary assembly of the ‘entire people’ was put into practice. A noticeable flaw of all representative systems in the post- Napoleonic era – including Baden – was the absence of universal suffrage. However, the Baden Constitution took a giant leap forward in democratising electoral law. Traditionally, eligibility for public offices and the right to vote were bound to property qualifications, either to assets, as in Great Britain, or to the amount of tax paid by the citizens, as in France. While the Baden Constitution continued this tradition concerning the eligibility of parliamentarians,232 suffrage depended no longer on property qualification, but on whether inhabitants older than 25 were registered as citizens in their local community (Gemeindebürger) or held an official position (§ 36).

Thus, the electoral law of the Baden Constitution was one of the most modern of its time and certainly the most advanced in Germany, even though a considerable part of the male population, not to mention women, remained excluded from the right to vote.233 The innovative and far- sighted character of Nebenius’ text is expressed not least in specific regulations, for example in stating that state officials were not eligible in their respec-tive administrative districts to avoid conflicts of interest or manipulation (cf. § 37). What was also remarkable was the provision that those entitled to vote or who were eligible to the first chamber did not have the right to take part in the elections of the second chamber (cf. § 35). This provision was rooted in the wish to avoid both chambers being monopolised by the same social class, that is the nobility, and to establish each chamber as independent powers in the political system.234

The idea of establishing two autonomous chambers corresponded with Montesquieu’s classical argument for bicameralism: while the lower house would assume the role of promoting liberty and progress, the upper house was to be regarded as a stronghold for conservatism and moderation, given the vested interest of its aristocratic members to preserve their privi-leges.235 The same justification for a bicameral system had even been used by Freiherr Marschall von Bieberstein in his memorandum on Nebenius’ first draft of 1816, in which Marschall argued for a ‘balanced combination of monarchical, democratic and aristocratic elements’ and for an upper house to guarantee ‘more mature, tranquil and sensible’ deliberations in

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parliament.236 Nebenius consistently put these arguments down in the Baden Constitution and established the first chamber as the representative body of the aristocracy. This chamber was even more independent from the crown than its counterpart in the English constitutional system and the Charte. Whereas in both Great Britain and France the king was essentially not restricted in his right to elect new lords or peers and could thereby create political majorities in the first chamber by appointing a proportionate number of new members, in Baden such power was strictly limited. In accord-ance with Article 32 of the Constitution, no more than eight members could be appointed by the grand duke.237 The other members of the upper house obtained their peerage and their right to a seat and vote automatically: as princes of the grand ducal house (§ 27 Para. 1), as heads of the mediatised families (§ 27 Para. 2), in their function as Land bishop (§ 27 Para. 3), as representatives of the lower nobility (§ 27 Para. 4) and as delegates of the two Baden universities Heidelberg and Freiburg im Breisgau (§ 27 Para. 5). Thus, the supremacy of the hereditary nobility was guaranteed in the first chamber, and the constitutional system of Baden, more than the Charte and the English Constitution, put Montesquieu’s idea of a strong upper house as a vital element in a monarchia mixta into practice.

Nonetheless, the relatively strong and independent position of the Baden first chamber should not be overestimated. It has to be seen in the context of the ‘monarchical principle’, on which the constitutional system was basi-cally founded, and which subordinated both chambers to the sovereignty of the crown.238 The same spirit of ‘monarchical sovereignty’ dominated the preamble of the constitutional text, which was presented as an act of ‘Our firm and free inner conviction’, based on the ‘sincere desire […] to strengthen the bond of trust between Us and Our people’, and the fundamental rights guaranteed in the Constitution.239 Nevertheless, the progressive nature of the Constitution cannot be denied, particularly when compared to the general state of constitutionalisation in the rest of Germany and beyond. Nebenius’ text essentially combined paradigms of monarchical rule and representative government with the principles of individual liberty and legal equality,240 amalgamating enlightened Western political thought with the rhetoric of German hegemonic discourse on landständische Verfassung, thus establishing a constitutional system akin to the French Charte, but in many respects dissimilar, too.

4.3.3 Conclusions

Both the Bavarian and Badenese Constitution continued the tradition of constitutional monarchism as laid down in the Charte, providing for a bicameral system, comprehensive powers of the crown and a limited role of parliament. Moreover, there are also striking resemblances with regard to common and individual rights guaranteed by the two constitutions. The exemplary character and role of the Charte in drawing up the constitutions of

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Bavaria and Baden is clearly underlined by analogies in the actual wording of the provisions made, which leave no doubt that the French Constitution of 1814 played a major role in the composition of post- Napoleonic consti-tutions in Southern Germany. In this respect, recent results of comparative constitutional history research can certainly be corroborated.241

However, a closer analysis challenges the idea of the Charte as the one and only ‘model’ for the Southern German constitutions in a number of respects. The fact is, the Charte was not the exclusive point of textual refer-ence for the constitutions of Baden and Bavaria. In the case of Bavaria, the country’s own Constitution of 1808 and the royal draft of the Württemberg Constitution (1817) were frequently reiterated, often literally. The latter text, but even more so the Bavarian Constitution of 1818, are quoted at great length in the Badenese Constitution, thus emphasising both the correlation between the Southern German constitutions and the character of transfer as a learning process. Moreover, even where analogies between the French Constitution of 1814 and the constitutions of Bavaria and Baden can be determined, this does not imply direct transfer nor does it suggest a one- to- one takeover. Imports were not always direct, but in some cases made a detour via one or another country. This was particularly the case in Baden, where a number of provisions of the Charte were imported via both the Polish Constitution of 1815 and the Bavarian of 1818. In other respects, the French Constitution of 1814 was more a mirror of and filter for general constitutional practices and institutions, and served as a mere ‘formal gateway’ for the predominant constitutional topoi of the time, which were chiefly fashioned by the British constitutional system. That goes, for example, for the bicameral system.242 Yet in some instances the Southern German constitutions modified, reformulated and/or expanded upon regu-lations of the French Charte, such as those on the right of petition and the legal responsibility of state officials. At the same time, the constitutional documents of Bavaria and Baden still preserved their own genuine, unique character. Their country- specific nature made them distinguishable not only from other contemporary constitutions, but also from each other.

The most obvious difference between the constitutional texts of Bavaria and Baden was their respective structure. While the lengthy Bavarian Constitution aimed at literally squeezing in as many details as possible in the constitutional text and its attachments, the actual text of the Baden Constitution set out to achieve the exact opposite, namely to confine itself to regulating only that which was absolutely necessary so as not to obstruct any future developments of the document. Such formal differences were not only due to the individual style and approach of Zentner and Nebenius, but were based on programmatic reasoning, too. In Bavaria, the government aimed to restore and preserve the supremacy of the nobility both in society and polity. Legal disparities and the need for more regulatory measures in the Constitution were hence willingly accepted. In Baden, there was no

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comparable need for legal exceptions, special sections on ‘Particular Rights and Privileges’243 or for specific edicts on the privileges of the nobility,244 since an unyielding spirit of equality before the law ran all the way through Nebenius’ text. The more traditional character of the Bavarian Constitution compared to that of Baden is also reflected in the way the landständische heritage is dealt with. The Bavarian Constitution basically incorporated – or better ‘re-invented’ –245 corporative forms of government, resulting in a fairly hybrid constitutional construction, wavering between classical altständische and representative principles, guaranteeing a marked majority of the land-owning nobility in both parliamentary chambers. Although Nebenius used the anachronistic terminology of Landstände, he did so for pragmatic reasons. Unlike Bavaria with its neuständische Constitution, Baden was the first German territorial state to fully adopt the representative system: an innovation crowned by a progressive electoral law, which had no equal in contemporary Europe and granted more people the right to vote than any other constitution of the time.246 In view of the fact that the Baden Constitution was merely implementing the wording of Article 13 of the German Federal Act with its promise of landständische constitutions, it appears paradoxical that the document consciously refers to the German Confederation, while the Bavarian Constitution with its corporative vestiges does not mention the Deutschen Bund at all. Yet, in view of Baden’s dynastic and territorial embroilments and its relative weakness in terms of power political strength, the country had good reason to demonstrate its bond with the German Confederation, which would become the guarantor of the Badenese Constitution.

In short, it can be stated that both the Bavarian and Badenese Constitution continued the tradition of monarchical- constitutional systems initiated by the Charte, which in many respects was exemplary for the character of the Southern German texts. Under the tenet of ‘constitutional monarchism’, however, there was wide scope for individuality, too. Hence, the Southern German constitutions represented a complex patchwork of external and domestic, traditional and innovative elements. Similarly different was the challenge for both states to breathe life into their respective constitutional documents in practical politics.

4.4 Interim results

The political point of departure for Bavaria and Baden was quite similar when the Napoleonic order collapsed. Both countries had undergone tremendous upheaval during the war years, which had brought them considerable gains in territory, population and political power, but posed new challenges, too, such as political integration and the preservation of state sovereignty. To master such challenges successfully, comprehensive reforms had been introduced – even though at different speeds and intensity, fundamentally

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shifting the domestic distribution of power in favour of a centralised Staatsabsolutismus. In addition, Bavaria and Baden had initially made efforts to establish modern constitutional systems by proclaiming written constitu-tions; efforts, however, which had remained incomplete, as in Bavaria, or even without any immediate results, as in Baden. By 1814, the geopolitical situation in Europe had fundamentally changed, but the arguments for setting up modern constitutions were more convincing than ever. While both states were still confronted with the heritage of the Napoleonic era, including the notorious financial and budgetary constraints, there were a number of new challenges, resulting not least from growing public demand for constitutional government after the Befreiungskriege. Thus, it was just a matter of time before the constitutional debate would be resumed in Bavaria and Baden.

This was the case in the second half of 1814, when formal constitution-alisation processes were initiated, shortly after the proclamation of the French Charte. Yet the trigger for constitutionalisation was not so much the release of the French Constitutional Charter as the forthcoming Congress of Vienna and the impending deliberations on the political future of Germany. Besides the aim to complete the integration process initiated by the reforms of the Napoleonic Age and the need to consolidate public finances, the issue of a Bundesverfassung, which posed a possible threat to both Bavaria’s and Baden’s own constitutional plans, was and continued to be the prime catalyst for promoting constitutionalisation. The thwarting of Austro- Prussian plans to re- establish traditional forms of corporative government in all German states by setting up an authoritative, binding federal constitution, establishing a loose confederation with only the vague prospect of a land-ständische constitution, were certainly a partial success. There was still no guarantee that no attempt would be made to supplement the notorious Article 13 of the Bundesakte or to impose constitutional orders from outside, as Metternich’s proposal for a Bavarian constitution in late 1817 clearly illustrates. The most effective way to foil any such ambition was therefore to spur on one’s own constitutions and thus pre- empt any such attempts.

Unlike these practical constraints, immediate popular agitation in Bavaria and Baden played only a minor role in pushing the constitution making. A Verfassungsbewegung in the wider meaning of the term was only identifiable in Baden, and even there only for a limited period, namely in late 1815 and early 1816. The results were modest and did not leave their mark on the constitutional text of 1818. Much more important than such movements in the two states was the subtle but nevertheless prevailing ‘constitutional tenet’ in German public opinion and the press, that is the conviction that a (ständische) constitution was a natural and basic prereq-uisite of the time. In this respect, the setting up of constitutional forms of government could be postponed by the rulers, but no longer be rejected per se in the long term.

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It was not least the mutual perception of the constitutionalisation process in Bavaria and Baden which was relevant for bringing forward constitutional deliberations. It might be overstating the point to talk about a ‘constitutional race’,247 but it is certainly true that the constitutional endeavour in the other state had a catalytic effect: power- politically, given the unsettled territorial disputes between the two Southern German countries, and for prestige, too, since becoming the first territorial state with a written post- Napoleonic constitution was at stake. The role of such considerations, particularly in the final phase of the constitutionalisation process, should not be underestimated. This final phase was initiated in both countries by a change at the ministerial level which took place in 1817: the dismissal of Montgelas and the appoint-ment of a more liberal cabinet in Bavaria, and the recall of Reitzenstein in Baden. Only after these reshuffles could new constitutional commissions be entrusted with drawing up an unambiguous constitutional text.

But who was in fact involved in the formation of the Bavarian and Badenese Constitution and which role did transfer and reception of (foreign) constitutional ideas and practices play? In actual fact, only a few people were directly involved in formulating the text of the constitution in either of the states, and even these were either senior state officials or members of government. The level of professionalism among the members of the constitutional commissions was considerably lower than in modern- day constitutionalisation processes. In order to be appointed a commissioner, juridical expertise was not a prerequisite; qualification criteria were service to the crown and whether one enjoyed the favour of the monarch. In this respect, the constitutionalisation processes in Bavaria and Baden were in keeping with the mores of the time, including the drafting of the Charte. But irrespective of this, the lack of constitutional know- how was not an obstacle. The available archival sources circumstantiate that basically all those who took part in drawing up and preparing the constitutions had at least rudimentary knowledge not only of law, but also of contempo-rary constitutional debate and other constitutions of the time. In the end, however, the actual skills of the commissions did not play a paramount role, since the final drafting of both the Bavarian and Baden Constitution in 1818 was dominated by two individuals who each had expert juridical knowl-edge and had excelled in previous constitutional deliberations: Zentner in Bavaria, who had accompanied the kingdom’s constitutionalisation process for years, and Nebenius in Baden, whose constitutional draft of 1816 had attracted a great deal of attention. The influence of those two men was all the more important since the King of Bavaria and the Grand Duke of Baden, unlike Louis XVIII in France, showed no desire to be actively involved in the drafting of the constitutional text. Their role was confined to formulating general guidelines for the future constitutions.

Nebenius in particular had plenty of scope for experimenting, as he was not under any obligation to align the new constitutional text with a particular

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predecessor, nor was he compelled to endow the future constitution with any specific form or character. In contrast, Zentner was more restricted in his role and activities: the new Bavarian Constitution should be in line with the constitutional deliberations of the previous years, hence indirectly also with the Constitution of 1808, and additionally take into account the wishes of the Crown Prince. Against this background, the chances of the Badenese Constitution being more innovative were higher. Likewise, foreign consti-tutional models were likely to play a more important role in Baden than in Bavaria. The personal background of Zentner and Nebenius were of consid-erable importance in this respect. Zentner had been socially conditioned in the second half of the eighteenth century and had gained his reputation as an expert in constitutional matters and a Reichsverfassung scholar. His legal- philosophical views continued to be determined by critical distance to modern constitutional paradigms, including the concept of representative government. Nebenius, in contrast, belonged to a younger generation and was less biased to modern constitutional thought. In preparing for the draft of the Baden Constitution, he had also intensively studied foreign constitu-tional systems over a number of years.

But even in Nebenius’ case there were only a limited number of consti-tutions which could actually be considered. Any so- called revolutionary constitution was flatly rejected as were any other constitutional systems which emphasised the principle of popular sovereignty. This was mainly for ideological reasons, but also due to the apprehensions that ‘democratic’ constitutions would endanger state unity and the authority embodied in the crown. Even the idea of imitating the English Constitution was out of the question as far as implementing the British parliamentarian system was concerned. In this regard, the perception and evaluation of each of the main protagonists in the constitutionalisation process unerringly reflected the mood of general constitutional discourse of the time. Unlike public discourse, however, Nebenius perceived the monarchical- constitutional system of the French Charte as what it basically represented: the only conceivable model which provided both a modern form of constitutional government and preserved monarchical sovereignty at the same time. Zentner recognised the obvious advantages of constitutional monarchism, too, but simply as a means to concentrate state power in a constitutional form. As a result, the Bavarian Constitution united the heritage of ‘constitutional monarchism’ with somewhat anachronistic privileges for the nobility and neuständische forms of representation. The status of the Charte as a model was therefore not identical in Bavaria and Baden.

However, it is not only in this regard that existing categories and concepts of ‘model’, ‘transfer’ and ‘reception’ need to be redefined. Existing compara-tive and transfer studies in the field of constitutional history commonly deal with ‘models’ as a rigid category, implying a straightforward and purposeful linking of A and B. Yet a closer examination of the drafting process and text

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of the Bavarian and Baden Constitution of 1818 reveals that – at least in the context of early (German) constitutionalism – ‘model’ needs to be perceived more as a vague, blurred and indistinct category.

There is no doubt that legal ‘imports’ from abroad and especially from the Charte played an important role for setting up the constitutional texts of Bavaria and Baden, as the vast number of textual resemblances and even literal parallels proves. Yet the concrete paths of transfer and reception are, nevertheless, intricate. In many cases, models only had the function of a ‘broker’, either for another constitutional text, or for constitutional com-mon sense, that is for elements which had become integral parts of a more or less universal Western image of ‘constitution’.248 In both cases, ‘model’ had only a relative meaning. Likewise, transfer and reception remain blurred in that in most cases of adopting it was not a matter of simply imitating existing provisions and institutions, but a complex process of converting, supplementing and adapting what already existed. This clearly resulted in peculiar outcomes: in some respects they went beyond their predecessors and in others they lagged behind.

One example is the first chamber, which was of quite a different nature and character in Bavaria and Baden to the one in France. In all three cases, it was undoubtedly an aristocratic body, seen as a necessary counterbalance to the lower house. But whereas the first chamber was conceived, primarily, as an instrument to reconcile the members of the Napoleonic Senate with the Restoration regime in France, in the Southern German states it served as a means to compensate the mediatised nobility for their political marginalisation and thus had a slightly neo- feudalistic touch.249 It was not only the purpose which was different, but also the actual composition of the upper house, with appointment procedures and competences varying between France and the Southern German states as well as between Bavaria and Baden itself.

One peculiarity of the Baden Constitution, to provide an example, is the way in which the first chamber’s competences in financial affairs are regulated. Unlike in France, and even Bavaria, the Badenese upper house only had the authority to accept or reject financial bills in toto and had no power to amend or effect changes (cf. § 60). In this respect, Nebenius’ text apparently followed the example of the English constitutional system, where the House of Lords had the right to block, but not to alter, fiscal bills.250 The limitation of the first chamber solely to a faculté d’empêcher without granting a faculté de statuer251 meant there was the risk that an agreement between the two chambers could be hampered and that no bills would be passed at all. To avoid such legislative stumbling blocks, the Baden Constitution provided for a special procedure if the upper house rejected a fiscal bill. In such a case, the individual ‘yes’ and ‘no’ votes of both chambers would be put together to reach a decision:

§ 61. If the majority of the first chamber does not support the resolution of the second, the assenting and dissenting votes of both chambers will

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be put together and counted, and the absolute majority of all the votes will determine the resolution of the Stände.

The origins of this innovative provision, neither to be found in the English Constitution nor the French Charte, remain unclear. It may have been the Swedish Constitution of 1809, which served as an inspiration,252 or it could have been the Norwegian Constitution of 1814, which Nebenius had evidently studied.253

At all events, these and other country- specific characteristics and shifts of emphasis in the respective constitutional texts merely underline the complexity and individuality of constitutionalisation processes. This indi-viduality was rooted in a number of factors, among them the ‘personal momentum’, represented by those involved in the drafting. No less impor-tant were the divergent historical starting points for the various processes of constitutionalisation. Due to such factors, even the key element of constitu-tional monarchism, the monarchical principle, did not necessarily have the same meaning in France and Southern Germany.

In France, Louis XVIII, on the defensive, had enacted the Charte not so much because he endorsed constitutionalism, but rather to protect himself and the Restoration from political ruin. The German princes, however, were intent on passing a constitution to consolidate and secure their states, as well as their own authority and sovereignty. In France, the objective of the monarchical principle was to re- establish the traditional authority of the crown, which had been replaced by new forms of rule in the previous decades. In Germany, the situation was the exact opposite. The monarchical principle here symbolised defending the political standing which the monarchs had gained during the Revolutionary Age: the preservation of a modern achievement against the traditional order. In point of fact, the Charte marked the temporary conclusion of a revolutionary development, yet had a revolutionary touch itself.254 In the Southern German states, how-ever, the transition from absolutistic to constitutional systems lacked the character of abrupt change. These variations were reflected in slight, but nonetheless momentous differences concerning the interaction between the legislative bodies.255

In view of French constitutional experiences, including the doctrine of the sovereign nation, it was only natural that the Charte could not express the legislative preponderance of the ruler in the same way as in Bavaria and Baden, where an absolute ruler conceded participatory rights to its people and their representatives. Accordingly, in Bavaria and Baden the two chambers were not equal partners of the monarch in the legislation. Parliament was seen as a tangible, but nevertheless dependent state body with no imperium whatsoever, and ‘law’ basically as the sovereign will of the monarch.256 The constitutional texts reflected this particular under-standing. Article 15 of the Charte left no doubt that, at least formally,

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‘The legislative power is exercised collectively by the King, the chamber of peers, and the chamber of deputies of the departments’. In contrast, the idea of law as a collective will of both parliament and monarch was missing in the Bavarian and Badenese constitutional documents. Unlike the French Constitution, the constitutions of Bavaria and Baden did not even make the politico- theoretical distinction between ius and exercitium, according to which the substance of all legislative power was the tenure of the crown, while its execution could be left to other institutions. Instead, the two constitutions presumed that both ius and exercitium were in the hands of the sovereign, manifest in the fact that the constitutional documents only make reference to the right of the chambers to pass bills in terms of ‘approval’ (Zustimmung, see, for example, Bavarian Constitution section VII § 2 and 3; Baden Constitution, § 53, 64 and 65). ‘Approval’, however, is obviously not the same as ‘substantial participation’ and describes the relative strength of the constitutional body most clearly: the crown appears as sole legisla-tor, the Landtag as a subordinated, not to say ‘alien’ element in the system. Legislative and executive power is thus not separated, but on the contrary united in one hand.257

Even outwardly, the constitutions of Bavaria and Baden hence broke with Montesquieu’s concept of separation of powers, which ‘in the Charte still eked out an existence in a corner’.258 In keeping with the logic of this system, the legislative fields, in which the chambers had right of approval, were enumer-ated in the Southern German constitutions,259 while the Charte applied the general maxim that all bills had to be passed by parliament.260 Even though de facto the vast majority of bills were subject to the Zustimmungsrecht of the Stände both in Bavaria and Baden,261 their being specified still expressed that there was a legal sphere left in which the crown had absolute and unrestricted nomothetic prerogatives.262

On the whole, conditions for the development of ‘constitutional life’, and the definition of the relations between monarch and parliament in particular, remained quite different in France, Bavaria and Baden, despite the fact that in all three countries monarchical- constitutional systems had been established. This was all the more the case since the texts of each con-stitution left much scope for interpretation by politicians, and provided a flexible framework within which politics could be pursued. The next chap-ter, therefore, sets out to examine and compare the implementation of the three constitutional documents after their enactment and the development of ‘constitutional practice’.

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5Constitutional Practice: A Comparison

The high number of national histories available on post- Napoleonic constitutional practice(s) is contrasted by a remarkable lack of comparative research. Comparisons of monarchical- constitutional life after 1818 on a transnational level are almost entirely missing.1

Chapter 5 therefore sets out to compare constitutional practice in Bavaria, Baden and France, focusing on the period between 1814/1818 and 1830, a year which marked a politico- cultural break for France and (Southern) Germany.2 This chapter aims to spotlight certain features of post- Napoleonic constitutional life rather than provide an exhaustive analysis. The centre of attention will be on both domestic and foreign perceptions of the new constitutions and concrete (political) reactions to the same as expressed in the press, political writings, and official reports. As far as foreign politi-cal reactions to the constitutions are concerned, the focus will be on the European great powers.

The second point of emphasis will be on tendencies to parliamentarise and/or democratise the political systems, the personal role of the monarch and possible constitutional conflicts arising in practice. To present a broader picture of the constitutional reality of the period, the aspect of ‘constitu-tional culture’, manifest, for example, in governmental efforts to strengthen public knowledge of the constitutions in question, will be included, too.3

5.1 Bavaria

The Verfassungs- Urkunde des Königreichs Baiern was publicly proclaimed on 26 May 1818, and one day later the Crown Prince, ministers and high state officials solemnly swore to preserve the new Constitution at a festive ceremony in the presence of the King.4

Despite the unwieldy character of the constitutional text with its ten Beylagen, the proclamation itself was received with overwhelming fervour in the press both in and beyond Bavaria.5 The enactment of the first written constitution of a bigger German state was seen as a ‘victory for

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Bavaria, which will and must have the most decisive influence on the rest of Germany’.6 After years of political uncertainty, the enactment of the Bavarian Constitution acquired immediate symbolic significance: the universal hope was that it might act as a beacon for the whole German nation. Heinrich Luden commented enthusiastically in his journal Nemesis. Zeitschrift für Politik und Geschichte:

The Kingdom of Bavaria has a constitution! This sets a great example, more important than anything else hitherto in this regard. Every honest German should be glad about this. This constitution shall be a magnificent sign to everyone that we have not suffered and striven in vain, but that the prize of our labours will be apportioned, to us and our children […]. For this king has not only guaranteed the future happiness of his people, but has also given the entire German nation a sacred pledge of law and freedom.7

The impression that with the Bavarian Constitution ‘everywhere in Germany the spirit of liberal principles has been evoked’8 was also shared abroad. In France,9 Italy, Scandinavia and Switzerland, the Verfassungs- Urkunde was perceived positively both by the press and by officials.10 In line with the predominant mood of British foreign affairs in the post- Napoleonic Age, ‘Constitution against Revolution’,11 the British government was particu-larly pleased and hoped that the events in Bavaria would trigger a wave of constitutionalisation throughout Germany, which did not imply, though, that the concrete provisions of the constitutional document necessarily met with unanimous approval.12 The British press was equally benevolent in its appraisal of the Bavarian Constitution. The Times was convinced that ‘[t]his document certainly holds out to the Bavarians […] an ample share of those rights and privileges the secure enjoyment of which may be said to con-stitute the sum- total of public liberty’, and expressed the ardent hope that ‘when once attained, no want of wisdom or virtue in the Bavarian people may impair the use or abridge the duration of those blessings which are now proffered to their acceptance by their Sovereign’s liberality’.13

The common rhetoric of the day is well expressed in a text by Johann P. Harl, a professor at the University of Erlangen who celebrated the new constitution as ‘the dawn of a beautiful future, shining through the fog of theory’.14 Appraisal of the Constitution usually went hand in hand with praises for the King, ‘to whom Bavaria owes its new, better life’.15 It was extolled that the Constitution had not been drafted in haste in the aftermath of a revolution, but was a well- thought out piece of ‘monarchical wisdom’, bonding constitutional government and tradition.16 A widely- held opinion was that the Constitution of 1818 made the Bavarians ‘the Britons amongst the Germans’, and even that its excellence went beyond the English Constitution in certain respects, for example in providing both a formal and ingenious procedure for constitutional changes and amendments.17

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One of its most zealous supporters was Anselm von Feuerbach who, on 27 March 1819, in view of the first positive effects of the new constitutional order and particularly the freedom of opinion and expression, wrote:

There is no other land in Europe (except only England) where one can speak, write, act more freely than here in Bavaria. It is unbelievable what a great royal act, as our Constitution, can achieve in a short space of time. Only through this Constitution has our King gained Ansbach and Bayreuth, Würzburg, Bamberg, etc.18

Even declared liberals, including later leaders of the opposition in the Stä nde- Versammlung, Franz Ludwig von Hornthal and Wilhelm Joseph Behr, characterised the Constitution as ‘a marvellous foundation for legal freedom’19 and worthy of the highest praise since the document

grants nothing less than the peaceful transfer, often painfully achieved after centuries of all the atrocities of revolutions, from the state of absolute rule of one individual will, an unrestrained monarchy, to the state of a constitutional, a constitutionally limited monarchy.20

In their texts, however, declarations of approval are interspersed with more or less open criticism of the constitutional text: ‘to praise it [the Constitution; MJP] as perfect would be pointless flattery’.21 These ambivalent reflections on the document were not the only ones. After the initial euphoria about the new Verfassungs- Urkunde had worn off, a number of more sober evaluations were published, highlighting also obvious weaknesses. Depending on the standpoint of the writer, different aspects of the Constitution were found to be flawed: emigration and marriage restrictions, the exclusion of church dissidents from certain political rights, discrepancies between the Religionsedikt (Zweyte Beylage of the Constitution) and the Concordat of 1817, the failure to clearly separate the judiciary from administration, the absence of jury courts and the restrictions on open courts, or the qualifications for compulsory military service.22

Attempting to find the overall ‘mood’ of public perception of the con-stitution in Bavaria is difficult, particularly regarding the privileges of the nobility. Commoners criticised anachronistic prerogatives of the aristocracy, such as having their own jurisdiction and the right to establish fidei com-missum (Fideikommiss), and the preservation of elements of manorialism. Commoners also disliked the fact that the Constitution ‘alongside the most important exemptions and privileges now once again lays by far the greatest and largest part of all national representation in the hands of these same ennobled titulars’.23

Members of the nobility, such as Freiherr Julius von Soden, however, who were not necessarily conservative or reactionary, were eager to underline

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the necessity of a strong nobility endowed with constitutional privileges in order to preserve the country’s cultural and political order: ‘for the author the nobility [appears] to be a necessary, […] indeed indispensable political machine; as the only strong barrier against anarchy and democracy; the most ominous of all state constitutions’.24 Thus, as far as Soden was concerned, it was only reasonable that the Bavarian Constitution provided strong representation for the nobility in the Stä nde- Versammlung, the first chamber of which he characterised as ‘having been designed with wisdom’.25 Other pamphlets of the time argued similarly and repudiated any reproach that the Constitution was too aristocratic by invoking the spectre of a ‘demo-cratic monarchy’.26

At that time, it was widely felt that although the Constitution might not embody the ultimate ideal, it did signify a huge step on the road towards a better future, bearing the seeds of improvement and development.27 Perhaps the harshest contemporary criticism of the Bavarian Constitution was voiced by the anonymous writer of a pamphlet entitled Patriotische Bemerkungen über die Verfassungs- Urkunde des Königreichs Baiern28 and Joseph von Hazzi.29 Both authors argued in terms of natural law and complained, above all, that the Constitution had been imposed unilaterally by the King and was therefore a ‘royal decree’, not a contract or agreement between ruler and people. This would have been the only form of enactment in line with the ‘requirements of natural state law’.30 No matter how noble the inten-tions of the monarch might have been, fact was that as long as the people had not been given the opportunity to approve the Constitution there would always be doubt and suspicion.31 As far as Hazzi was concerned, the French Charte, despite its formally being a constitution octroyée, was more a Vertragsverfassung than the Bavarian Constitution, since other agreements and contracts had preceded the actual constitutional document ultimately given by the French King.32

Another thing that was severely criticised was the biased nature and restricted legislative competences of the Stä nde- Versammlung, including the absence of the right of initiative and the assembly’s convening for a limited period of two months every third year only, as well as the excessive power of the royal ministers. Hazzi also found fault with the Beylagen of the Constitution which, in his eyes, qualified many of the guarantees given in the constitutional document, for example the freedom of the press. He likewise asked whether a unicameral system would not have better met the needs of the era and the state of constitutional theory than a bicameral.33

But at the end of the day, even these authors conceded the Bavarian Constitution had potential and hoped that any flaws and weaknesses it contained could, and indeed would, be remedied. Reason for such hope was not least the royal decrees of 12 June and 5 October 1818,34 in which liberal concessions were made for the Western Rheinkreis, by which all regulations in the Constitution contradicting or restricting prior prerogatives were

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declared null and void. There was confidence that the liberal guarantees being granted in this particular part of the kingdom would be a shining example for the whole kingdom and perhaps even for the rest of Germany: ‘this as yet tender plant, already bearing sweet fruit, will mature into a tall and mighty tree, under which an entire great people will one day rest and enjoy their existence under a new, fortunate order of things’.35

It was this resolve to strengthen Bavarian consciousness on the one hand and effect a liberal constitutionalisation process in the rest of Germany on the other, which alarmed the two leading German powers: Austria and Prussia. It was all too obvious for the Austrian and Prussian governments that the Bavarian, and later the Badenese, Constitution was directed against Austro- Prussian hegemonic ambitions in the German Confederation and the concept of traditional (alt)ständische constitutions. Accordingly, their diplomatic reactions were harsh. Only a few days after its proclamation, Metternich voiced his disappointment about the new Bavarian Verfassungs- Urkunde, reproached the government in Munich for its anti- Austrian sentiment and declared that the Bavarian document had clearly overstepped the boundaries of a landständische constitution.36 In July, Metternich wrote to the Austrian envoy in Munich that ‘[t]he Bavarian Court, constantly at odds with its own will and actions, now [seems] to want to make use of the most dastardly of parties [that is the liberals; MJP] in Germany, in order to assert the opposition which it had tried to do by other means’.37 Other German governments and monarchs, who feared their absolute powers would be restrained, were no less critical about establishing representative constitutions, since ‘such a body, assembled by means of […] representation, could easily degenerate and become too much for the regent if he does not defend his authority’.38 The first acid test for the Bavarian Constitution in early 1819, when the primary Stä nde- Versammlung was convoked, seemed to corroborate this critical opinion.

In the run- up to and after the convening of the first Landtag in February, public interest became very much focused on the importance, role and agenda of the two chambers and particularly of the Kammer der Abgeordneten.39 Pamphlets and papers discussed what the task of the Landtag was or should be, commented on legislation which they deemed absolutely necessary, or made requests to parliamentarians, occasionally directly addressing the representatives in question.40 In this context, political rhetoric became increasingly radical and criticism more openly voiced than before. Many requests clearly went beyond the bounds of the Constitution and implied the need for ‘improvements’ in the existing document, for example the arrangement of the judiciary.41 A few authors even demanded that every citizen regardless of class should be represented in the Ständeversammlung, and that the bicameral system be abandoned for a unicameral one, thus striking the very foundations of the Bavarian constitutional system.42 Debate on the Constitution became all the more

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polarised since the actual deliberations of the Landtag (4 February to 25 July 1819) deviated considerably from the original expectations of the government.43

In his inaugural speech to the Bavarian Stä nde- Versammlung on 4 February 1819,44 Maximilian I Joseph had expressed his wish that parliamentarians be free of all ruinous thoughts and ambitions, be driven by the desire to serve the fatherland, conscientious in their deeds and remain within the boundaries set by the constitution. In doing so, they would be making an invaluable contribution to the state and throne.45

However, it soon became apparent that certain parts of the Stä nde- Versammlung, namely of the lower house, had no intention whatsoever of being submissive ‘assistants of the government’, and it was the ‘limits of their activity’46 laid down by the Constitution and stressed by the King that were being questioned. Above all, this was an expression of the ‘systemic opposition’ which was likely to develop in any monarchical- constitutional order. Unlike in parliamentary systems, representatives in a system of con-stitutional monarchism, and particularly those in the lower house, were likely to consider themselves eo ipso ‘oppositional’ and see their task chiefly in defending the ‘rights of the people’ against the monarchical government. In Bavaria, this resulted in fierce and passionate disputes between govern-ment and (liberal) opposition, headed by Joseph Behr and Franz Ludwig von Hornthal. The situation was all the more tense since the Kammer der Reichsräthe had made its position clear: to resist any attempt to reform and to oppose the second chamber.47 Likewise, both the second chamber and the government lacked parliamentary experience. This, together with the immobility of the government and the ‘profile neurosis’48 of some of the MPs, made moderate debate nothing short of impossible. Dogmatic discussion was thus being nurtured, condemned even by contemporaries as being nothing short of pedantic and boring, and embarrassingly childish and meaningless when compared with other leading nations going about the same business.49

The activities of the second chamber did in part, however, go beyond this suggested meaninglessness. By frequently resorting to its right of petition, the Kammer der Abgeordneten tried to gain some kind of legislative initia-tive and proposed a number of innovative reforms, particularly in judiciary matters. Among other things, the chamber demanded the administration of justice be carried out in open court, the introduction of jury courts, and a strict separation of law and public administration. They made proposals in the realm of free trade and commerce, the status of Jews, education, and wanted a national bank to be established.50 But apart from an amendment to the existing Bavarian criminal and civil adjective law (Verfahrensrecht), the introduction of a new law on municipal finances and a revision of the existing custom law, the only substantial legislative result of the first Landtag was the passing of the budget for the fiscal period 1819–25.51

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The first Landtag session had an even more sobering impact on government and King than parliament.52 Although the government had managed to quash all parliamentary initiatives and had demonstrated its supremacy, it was obvious that there were strong forces of opposition at work in the Ständeversammlung. Even if radically liberal views might not yet have gained a clear majority in the Kammer der Abgeordneten, three disputes during the first session of the Landtag must have been particularly alarming for the government and its supporters, namely those on the constitutional oath of the army, the right of ministers to take part in parliamentary sessions, and on the increase of military spending.

Traditionally, the armed forces swore an oath to serve the monarch. The liberal opposition, however, wanted the army to swear to serve the Constitution. This initiative was of utmost symbolic importance, consid-ered by the government to be not only anti- constitutional,53 but downright revolutionary. Lively debate on this topic in the second chamber came to a standstill when the initiator for the Bürgereid, Hornthal, finally withdrew his proposal, but the demand had now been voiced and it would only be a matter of time before it was made again. The situation was similar regarding the controversy about the rights of government members to speak in the chamber. Even though the proposal put forward by Christian Sturz, a liberal deputy of the Rheinkreis,54 to restrict the ministers’ right to voice their views in the Ständeversammlung55 was rejected by a clear majority in the second chamber itself, the green light had been given for further parliamentary freedoms. Finally, and perhaps most importantly, the refusal of the second chamber to comply with the crown’s wish to increase military spending heralded severe conflict about public spending in the future.

Alarmingly, these oppositional and emancipatory tendencies found significant support in the press and contemporary writing. There were certainly works of the period which took a clear pro- governmental position and renounced the plans of the liberals as presumptuous and unwarranted.56 There was, however, literature which backed the liberal initiative or went so far as to exceed the claims put forward in parliament. Perhaps the sharpest of these attacks was Franz von Spaun’s Bemerkungen über die wichtigsten Verhandlungen der bayrischen Stä nde- Versammlung.57 Spaun vehemently defended the demand for the army to swear a constitu-tional oath and made an all- out attack against the nobility and the first chamber, whose apddress to the King was interpreted as ‘a declaration of war against the second chamber’.58 He also pushed for improvements to the press edict, claiming that liberal press laws had always been to the benefit of the nation enacting them.59 Spaun’s text overtly criticised the imperfections in the existing Constitution, and at the same time put forward a powerful argument to ‘enhance’ the text. Spaun thus challenged the political and constitutional objectives of the crown and possibly opened Pandora’s Box.

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In contrast to the years before the enactment of the Constitution, political life became dynamic and even radical in late 1818 and 1819. The govern-ment felt duty- bound to take countermeasures not limited to reprimanding the oppositional forces as in the King’s closing speech of the first Landtag on 22 July 1819 (Landtagsabschied), in which he sharply criticised the second chamber for going beyond the limits of its authority.60 The government even seriously considered whether it might not be better to suspend or perhaps revoke the whole Constitution. Even foreign governments were consulted in this matter. On 31 March 1819 the Prussian deputy in Munich, von Zastrow, reported to Berlin:

His Majesty the King [of Bavaria] has deliberated with His Ministry on whether […], before evil spreads still further, it might not be better to annul the whole constitution and declare publically that the King has been compelled to do so, since he has become convinced that due to the conduct hitherto of the representatives the beneficent objectives set could not be achieved. […] The King and His Ministry are of the opin-ion that it would be better to take a step backwards before evil and the spirit of unruliness, which could easily get worse, spreads further […] Rechberg is to be informed by my person, what His Majesty the King [of Bavaria] may expect from Your Majesty [the King of Prussia; MJP], if he should be in the unpleasant situation to take the above- mentioned drastic step?61

It was rather ironic that the Bavarian government, which had forced through the Constitution of 1818 in order to avoid intervention from abroad, now asked for foreign counsel in this crucial matter, namely by consulting the Prussian, Austrian and Saxon governments. Quite justifiably, foreign minister Rechberg hoped that in the light of the events at the first Landtag such drastic plans would meet with favourable approval by the German Confederation.

Shortly after the tempestuous beginning of the first Bavarian parliamen-tary session, the Austrian government indeed declared in an official note that ‘the future fate of Bavaria is so inseparably bound with the affairs of Germany and even more so with our own that we could not possibly be unconcerned about what has happened these last few weeks’.62 The revolutionary spirit, which Metternich saw at work in the conflict between government and chambers, bore out his firm belief that the basic problem of all the Southern German constitutions was that they rested on the wrong – since representative – foundations. Metternich wanted Article 13 of the Bundesakte to be interpreted traditionally altständisch, with ‘regional’ rather than ‘national representative’ bodies: ‘He would advise […] to grant a constitution which would authorize provincial assemblies, but no general assembly of deputies from the provinces.’63 His aversion against the

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Southern German constitutions, representing ‘a decisive advancement in the representative system’,64 was shared by other German sovereigns. Wilhelm I of Hesse, for example, bluntly declared in June 1819:

It had been a mistake to give more than had been promised and agreed upon. He [William I; MJP] had simply agreed to and endorsed there being a landständische constitution. In doing so, he had not imagined that a French constitution or representative constitution in the modern sense would be set up, rather Landstände as common in Germany. He could not accept more and wished that others elsewhere had not gone further either.65

In wanting to do something about this alarming development in Southern Germany, Metternich knew he could count on the active support of Prussian foreign politics, particularly since Hardenberg’s influence was diminishing. As Vienna, Berlin, too, noticed the wakening of constitutional and parlia-mentary life in Bavaria and later Baden. Despite their anxiety, however, both governments dismissed the radical solution of annulling existing constitu-tions as being virtually impossible. As a result, both Prussian and Austrian authorities rejected the Bavarian plan of repealing the Verfassungs- Urkunde. In its response, the Prussian government expressed its doubts whether ‘evil was so deeply rooted and incurable that the government might consider itself justified and coerced to resort to the drastic step of revoking the Constitutional Act’, and warned of the ‘great and imminent danger […], which would be inseparably coupled with the crisis created by the arbitrary withdrawal of the Constitutional Act’.66

Plans to repeal the Constitution were finally abandoned, but not least so on account of the determination by the open- minded members of the government to defend the Verfassungs- Urkunde, among them Zentner, and the Crown Prince, who considered a constitutional coup and the dissolution of the Landtag as being the ‘greatest tragedy’ for both King and country since the consequences were incalculable.67

The authorities pursued another strategy to de- radicalise constitutional life, namely by fostering a pro- monarchical and pro- governmental consti-tutional culture in the country, since it had become obvious that outside of intellectual circles with their communication networks (newspapers, journals, literature, personal contacts), the broader population did not have much idea of the new constitutional system. This was not least due to flaws in the government visible even at the time of the proclamation of the document itself in May 1818. Except for Munich, the new Constitution was not directly announced to the people, but only to state officials. And even in Munich, the proclamation and ensuing festivities were somewhat improvised due to the haste with which the drafting of the Constitution had been completed. Popular passion for the new Verfassungs- Urkunde was thus more restrained in practice than some newspapers were suggesting.68 There

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was not only a general mood of apathy but also widespread concern that the Constitution of 1818 could meet the same fate as the Constitution of 1808.69 The elections for the Stä nde- Versammlung in December 1818 and the convocation of the Landtag in February 1819 helped to dispel such concerns, but the enthusiasm among the Bavarian people continued to be subdued. Therefore, the state authorities stepped up their efforts to ‘market’ the new Constitution and its inherent advantages from late 1818 onwards.

One crucial tool in Volksbelehrung and Volkspropaganda became ‘consti-tutional catechisms’. The first was published in early 1819, entitled Verfassungs- Katechismus. Für Baierns Volk und Jugend,70 and anticipated the characteristics of later catechisms.71 In a secularised context, this first cate-chism used the form of traditional religious catechisms as doctrinal manuals with questions followed by answers. The text was not only designed to be informative, but was also a propagandistic device. Its task was to praise the strengths and benefits of the new order and thus to bond subjects to the crown and their fatherland.72

The introductory chapter of the catechism interpreted the Constitution as a ‘paternal agreement’, given by the ‘loving father Maximilian’ to ‘his children’.73 What was particularly emphasised was the ‘home-grown’ character of the Constitution as the crowning conclusion of Bavarian history,74 and that the King had voluntarily granted constitutional rights and (re-)established the Landstände, now entrusted with extended rights and also encompassing the peasantry.75 Subsequent to the introduction, which brought discredit on the critics of the Constitution,76 the main elements and regulations of the Verfassungs- Urkunde were set out in 12 chapters (Hauptstücke).

One crucial element of propaganda was to create the impression that there was not only a Bavarian state, but indeed a homogeneous Bavarian nation (see especially Chapters I–III),77 and that the ‘blessing’ of the new Constitution lay in the fact that every need and desire of the Bavarian people would now be heard and fulfilled by the King via the representatives elected by the people.78 At the same time, it was made quite clear that the King was ‘the supreme head of state’. Thus, the unmistakable answer to the question ‘What rights does the monarch have?’ was that ‘He unites all the rights of state authority, and thus the […] legislative, judiciary and executive power emanates from him.’79 The role of the Stä nde- Versammlung was hence more akin to a royal ‘consultation committee’, ‘whose approval the king secures when he wants to pass a law or introduce new imposts’,80 composed of elected representatives who should be unassuming, dispassio-nate patriots.81

While the justification of the monarchical- constitutional system seems to be sound,82 the author of the catechism obviously had problems in vindicating the persistence of legal inequalities, for example the uncon-vincing defence of the privileges of the nobility. Thus the answer to the question as to why nobles enjoy certain advantages is plainly: ‘because the

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nobility is a useful class’.83 Be that as it may, the overall effect and influence of such catechisms should not be underestimated. There is no doubt that they gained much wider acceptance than scholarly journals and articles of the time. The message was simple, captured in ‘catchy phrases’ such as: ‘Receive […] with thanks the benefaction granted you and may the motto of every good Bavarian be Wittelspach [sic!] and the Constitution!’84 Apart from the ‘folksy’ appeal of these catechisms, it was also the active efforts by the authorities to spread these texts which made them a common part of the curriculum in schools85 and adult education.86

A second major instrument of political ‘communication’ between govern-ment and people became visual tools to present and praise the Constitution, namely paintings, coins and monuments.87 The minting of the first coin to commemorate the Constitution was announced in the Baierische National- Zeitung on 26 May 1819, exactly one year after the ‘unforgettable day, to which Bavaria owes its Constitution’.88 The commemorative coin portrayed the King on the one side and the allegorised Constitution on the other, symbolised by a solid cube entitled Charta magna Bavariae set on a diamond pattern and surrounded by the verse Magnus ab integro saeculorum nascitur ordo, ‘the great order of the ages is born afresh’.89 The message conveyed by this coin was unequivocal: the proclamation of the Constitution formed the threshold of a new age in Bavaria. The lasting nature of this age would be guaranteed by the durability and solidity of the Verfassungs- Urkunde, which should be memorialised for generations together with its originator, the King.90

With a slight delay, efforts were made to allegorise the Constitution of 1818 in monuments, too. From the early 1820s onwards, memorials to the Verfassungs- Urkunde were built throughout Bavaria, predominantly in those parts of the country which had been incorporated into the Bavarian state during the Napoleonic Age (Neubayern) and in which the need to promote the new political entity was most urgent. The crown jubilee of Maximilian I. Joseph in 1824 was seen as the golden opportunity to erect monuments, either permanent or temporary, to commemorate both King and Constitution. Many of the monuments copied the allegory of the Constitution as a cube, for example those in Passau, Freising and Amberg, and frequently christened the Constitution Charta magna Bavariae, too. Perhaps the most remarkable of all the constitutional monuments in Bavaria, however, is the Konstitutionssäule (‘Constitutional Column’) in the castle grounds of Gaibach (Lower Franconia). The cornerstone ceremony was held on 27 May 1821, the third anniversary of the proclamation of the Constitution, and the formal dedication finally took place on 22 August 1828 in the presence of King Ludwig I and his wife.91

From 1821 onwards, the castle grounds of Gaibach were also the venue of annual ‘constitutional festivals’ for the public: another focal point of constitutional culture.92 In Gaibach as in other towns and villages such Verfassungsfeste were an important tool in governmental ‘constitutional

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politics’. They served as a platform to celebrate the constitutional document as well as the monarchy, and symbolically expressed the new Bavarian ‘national identity’.93 Nonetheless, contrary to the expectations of the authorities, Verfassungsfeste could potentially become as much a focal point of Bavarian patriotism as of liberalism and German nationalism. The mono-polising and instrumentalisation of Verfassungsfeste by liberals and democrats was impressively demonstrated by the Hambacher Fest (‘Hambach Festival’). Celebrated from 27 to 30 May 1832 at Hambach Castle near Neustadt an der Weinstraße (Palatinate), the Festival is today often regarded as the most important German national democratic festival of the nineteenth century: starting one day after the 14th anniversary of the proclamation of the Bavarian Constitution and hence ostensibly a governmental event, the festival actually became an oppositional festival with pan- German objec-tives.94 By the beginning of the 1830s, the festivities in Gaibach, too, had lost most of their ‘official’ character and become gatherings for the liberal opposition, such as in 1832, with more than 5,000 participants demanding the political system be democratised (Gaibacher Fest).

The Janus nature of the Verfassungsfeste reflected the limits of the authorities’ endeavours to channel constitutional culture in one particular direction. It would be misleading to underestimate the pro- constitutional and pro- dynastic effects constitutional catechisms, coins and medals,95 or monuments might have had. Still, the deciding factor for ‘constitutional patriotism’96 remained the way in which success and/or failure of politics was perceived, including the question to which degree the dealings with the constitution were judged as ‘just’, or at least not ‘unjust’.

An interesting barometer for the perception of ‘constitutional fairness’ are the formal complaints of individual citizens lodged against seeming or real violations of their constitutional rights. Title VII § 21 of the Bavarian Constitution provided the legal basis for parliament to consider such com-plaints and, after they had been approved by both chambers, to submit them to the king. The Edict über die Stä nde- Versammlung (tenth supplement of the Constitution), section three § 33–5, and title X § 5 of the Constitution gave detailed procedure for such constitutional complaints, which were dealt with by a special commission established in 1819. Many citizens did make use of their right to appeal,97 and even though there was little chance of an individual complaint ever actually reaching the monarch after having gone through all instances,98 these complaints played an important role. They served as a substitute for a full right of petition, which was not granted to the Bavarian people until 1872, and were a mirror of ‘public opinion’. Thus, they were a source of information for parliamentarians on those matters which annoyed citizens most, and hence a way to take pre- emptive measures.

All in all, the complaints recorded for 1819 and the 1820s reveal a degree of dissatisfaction, but that there were no signs of a looming ‘constitutional

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conflict’ in Bavaria. On the contrary, most complaints dealt with low- key problems, often regarding individual property rights and privileges. The moderate, even humble character of these constitutional complaints stands in sharp contrast to the often harsh tone of some of the political writings of the time and also the turbulences of the first Landtag. To a certain degree, this might have been simply due to the fact that this form of complaint was not considered to be a suitable vehicle for criticising the constitutional system. But it also proves that the constitutional reasoning of intellectuals and the political class was not necessarily the same as that of broader parts of the population. It seems that a vast majority of the Bavarian people were actually content with or indifferent to the constitutional system after 1818. That was in part due to the fact that the proclamation of the Verfassungs- Urkunde was an indisputable political and legal landmark, particularly when compared to the more sobering state of political and civil liberty in the rest of Germany. The ‘progressiveness’ of Bavaria within the assembly of German states became even more distinct after the Karlsbad Decrees, which were enacted in the Deutsche Bund on 20 September 1819.

Austria and Prussia agreed that they had to accept the constitutions in Southern Germany as a necessary evil, but were at the same time putting together blue- prints for repressive legislation and setting up compulsory rules for both existing and future constitutions. In a letter to the Prussian envoy in Munich in August 1819, Friedrich Ancillon, director of the political section of the Prussian Ministry for Foreign Affairs under Count Bernstorff, blamed the ‘underdevelopment’ of parliamentary and constitutional experi-ence for the ‘impetuous, wild and excessive’ character of the first Landtag. Similar turbulence was expected in all states where constitutions were being introduced ‘off the cuff’ and without ‘preparatory institutions’. The ‘true meaning of a representative and monarchical constitution’ was extremely difficult to comprehend. Even the French, who had a much longer and harsher constitutional experience, were still in the process of learning; in (Southern) Germany, any real understanding of what a representative constitution might mean was lacking entirely.99 For that reason Ancillon hoped that the governments would take precautionary measures ‘against an unlawful and all- encompassing form of custodianship’ and invent means together with Austria and Prussia ‘to thwart the activities of the German revolutionaries, to put the young in their place and curb excesses in teaching, writing and acting’.100

The Karlsbad Decrees finally put these ideas into practice. By restricting universities, student movements, political literature and the press, Metternich hit those institutions hardest which represented the basis for the liberal movement, since it was through universities and the press that the educated classes could express their constitutional and national aspirations most clearly and across the borders of the individual states in the German Confederation.

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During the conferences in Munich (July 1819) and Karlsbad (August 1819) it had been easy for Metternich to win the Bavarian envoy round to his reactionary plans, not least since Rechberg agreed with Austrian diplomacy on the need to restrict the freedom of expression by concerted action at the level of the German Confederation.101 However, the practical conse-quences of the Karlsbad Decrees were mitigated by the advocates of the Constitution within the government who were alarmed by the imminent danger to Bavarian sovereignty in the event of no effective limits being set against growing federal authority.102 Lerchenfeld and the Crown Prince once more became fierce defenders of the Verfassungs- Urkunde. In two letters to the King and Rechberg, dated 1 October 1819, Ludwig openly declared that ‘keeping one’s constitution is not humiliating, but to be dictated laws by other powers is’.103 Ludwig argued that if the constitutional document was doubted from abroad, it would not only be disgraceful, but irreparably shatter the existing confidence in the Bavarian government both at home and abroad.104

The direct intervention of the Crown Prince and the active involvement of Lerchenfeld, Reigersberg, Wrede and Zentner was not in vain. At the ministerial meeting of 15 October it was decided that the Executionsordnung, considered to be the most obvious danger to Bavarian sovereignty, would not be enacted,105 the remaining three Karlsbad Decrees only with the proviso that they were compatible with the Bavarian Constitution. In line with this decision, the federal resolutions were published in the Bavarian law gazette one day later.106

For the time being at least, the ‘constitutional party’ in Munich had managed to thwart the reactionary forces. But while the mitigation of the immediate repercussions of the Karlsbad Decrees met with relief in Bavaria,107 the Austrian government was infuriated by the resolve of the Bavarian government,108 which was, indeed, in a fairly intractable situation, particularly since the Wiener Ministerkonferenz was approaching. Here, the foundations of the German Confederation were to be put down in concrete terms. On the one hand, the total isolation of Bavaria had to be prevented, on the other, Bavarian sovereignty and its Constitution had to be defended at all costs. No one seemed to be better qualified to tackle this difficult task than the author of the Verfassungs- Urkunde, Zentner, who was appointed the Bavarian representative at the ministerial conference in Vienna in place of Rechberg.

Zentner’s official instructions109 were unambiguous: he was to underline Bavaria’s commitment to the Federal Act of 1815, but resist any intentions of the Bund to extend its clout to include the domestic and constitutional affairs of its members.110 The hopes put in Zentner were not dashed. Not only did he succeed in defending Bavarian interests in Vienna throughout the deliberations during the winter and spring 1819/1820 (25 November 1819 to 24 May 1820), but even became one of the spiritual fathers of the Wiener

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Schlussakte of 1820.111 Zentner foiled ambitions to restrict the competences of the Landtage and averted the right of the Bund to interfere with the con-stitutions of the individual states (cf. Art. 55 of the Schlussakte).112 Article 56 specified that ‘the […] existing landständische constitutions [can] only be changed again by constitutional means’, that is through domestic political procedures, in Bavaria namely by the king and a two- thirds majority of the Stä nde- Versammlung.113 Moreover, Zentner succeeded in emphasising the protective function of the German Confederation, which was of crucial importance for the smaller and medium size states since their own military capacities were limited. At the same time, military intervention by the Bund against its members was effectively restricted, manifest in Article 25: ‘Maintaining domestic law and order in the Confederal States resides with the governments alone.’114 In order to limit executive power at the federal level and to avoid it being abused by great powers, Zentner also successfully frustrated plans for a federal court (cf. Articles 21–4), and it was with his support that the sovereignty of the single states was strengthened by thwarting any formal re- institutionalisation of the mediatised nobility.115

However, while Zentner was unswerving in defending Bavarian interests in Vienna, he advocated making the monarchical principle the core element of all constitutions in the Confederation, not least since he considered this very principle the essence of the Bavarian Constitution. Thus, it was with his active support that Article 57 of the Wiener Schlussakte declared monarchical sovereignty the soul of constitutionalism in Germany and the only accept-able basis for any future constitutionalisation processes:

Since the German Confederation, with the exception of the Free Cities, consists of sovereign princes, the entire state authority must, according to the basic principles provided thereby, remain united with the head of state, and by means of a landständische constitution, the sovereign can only be required to collaborate with the Stände in exercising certain rights.116

The unanimous acceptance of the Wiener Schlussakte in May 1820 as Bundes- Supplementar- Akte marked the success of Bavaria’s struggle for sov-ereignty and the principle of non- intervention.117 At the same time, the ministerial conference contained an unambiguous message to the Bavarian public: the Bavarian government rejected intervention from abroad and underlined its commitment to the political institutions and liberties vested in the Verfassungs- Urkunde, but clearly pointed out that there was no will for any extensive liberalisation or democratisation of the existing political system.

The reactionary turn in most German states after the Karlsbad Decrees and the Schlussakte,118 which had illustrated how fragile political and civil freedom actually was, could hardly remain without repercussions in Bavaria. Even the most liberal- minded members of the political class had to admit in 1820 that under such unfavourable conditions a progressive ‘evolution’

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of the existing constitutional system in Bavaria was impossible. For the time being, one had to be content with safeguarding existing rights. The best indicator for the moderation of constitutional life in the first half of the 1820s is the remarkable decline in the amount of political writing in general, and particularly writing arguing for constitutional changes.119

The restrained character of the second and third Landtag was merely an attendant phenomenon of the noticeable lethargy among intellectuals and in the press, which was intensified by a highly restrictive interpreta-tion of freedom of the press after 1819.120 Fatigue was the overall attribute of the Landtag in 1822 (21 January to 2 June), in the course of which barely more than a new mortgage law was passed.121 There were still some confrontations between government and opposition, especially about the constitutional oath and military spending, but these conflicts bore no comparison to the situation three years earlier. The third Landtag of 1825 (25 February to 12 September) was even more tranquil and obsequious than its predecessor.122 This was particularly so, because the opposition had been effectively weakened in the run- up to the Landtag and was minus two of its leading representatives, Hornthal and Behr: the former had not been re- elected, while Behr was refused leave- of- absence from his post as a state official.123 It is significant for the pervasive reactionary spirit of the time that the new standing orders of the two chambers, passed in March 1825, were highly restrictive, even though the Stä nde- Versammlung itself had to decide upon them. The new Geschäftsordnung imposed limits on public access to the sessions in the second chamber, restricted the margin of deviation from the day’s agenda, constrained attacks on any government, and even went so far as to limit parliamentarian prerogatives. Filing constitutional complaints became more complicated, and the chambers’ right to direct legislative petitions to the king was substantially restricted.124 The new rules of order were nothing short of self- depreciation of the chambers. Given these circumstances, it is not astonishing that the legislative output of the third Landtag remained modest, too, and that not one single law of outstanding importance was actually passed in 1825. A reform of rural administration (Landratsgesetz) was thwarted by the first chamber, while a new, long- awaited civil and penal code was not even submitted for deliberation. Loud criticism, however, did not ensue, neither from within nor from outside the chambers. In view of this tranquillity, the Bavarian government had all good reason to be satisfied, not least since the state budget, perhaps the main concern of the authorities, had been consolidated and settled.125

But the torpidity of constitutional life suddenly changed just one month after the closing of the third Landtag when King Maximilian I Joseph died and Ludwig I succeeded to the throne. The hopes placed in the new monarch were great, especially among those desiring develop-ment of the constitutional system and existing political liberties. It was an open secret that Ludwig had been one of the driving forces behind the

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constitutionalisation of Bavaria after 1814 and, together with Lerchenfeld and Zentner, one of the most resolute defenders of the Verfassungs- Urkunde in 1819/1820. On several occasions, Ludwig had not only demonstrated his loyalty to the Constitution, but also his willingness to accept moderate constitutional reform and change. Therefore, he appeared to be the best guarantor for a fruitful development of the political system, and the begin-ning of his reign tended to justify those hopes.

One of his first official acts was to dismiss Graf Aloys von Rechberg as foreign minister and appoint Joseph Ludwig Graf von Armansperg, the head of the liberal fraction during the Landtag of 1825, as minister of finance and the interior as of 1 January 1826.126 As early as 24 November 1825, Ludwig revoked existing censorship of the press, which had been tightened in the wake of the Karlsbad Decrees.127 The accession of Ludwig to the throne and the relaxation of censorship, providing for almost unrestricted freedom of expression in Bavaria, led to the almost immediate renewal of intense public discourse on politics and constitutionalism. In various texts, the future of the constitutional system was discussed in detail, and it is symptomatic of the intellectual U- turn that even civil servants now openly put forward suggestions for fundamental changes. The pamphlet Was haben wir Bayern von der jüngsten Thronveränderung zu hoffen? Eine freimüthige Frage, freimüthig erörtert, for example, was an all- out attack against the bicameral system considered to be the basic flaw of the Bavarian Verfassungs- Urkunde.128 The pamphlet argued that the first chamber had proved to be a hindrance to the Bavarian Constitution, and its primary aim had been to sow discon-tent between king and people, government and citizen. Accordingly, the bicameral system should be replaced by one single chamber, and feudalistic influences suppressed wherever possible.

Such ‘radical’ appeals were the opinion of a minority only, likely to provoke protest by both conservatives and liberals alike.129 Still, there was a universal sense that a new era was about to dawn. Expectations grew the closer the Landtag of 1827/1828 came. The King’s speech at the beginning of the fourth Landtag on 17 November 1827 further nurtured the hopes among the political class.130 Ludwig announced reforms in the rural administration, in legal and organisational affairs and in the economic and cultural sector. However, against expectation and despite the fact that the session of the fourth Bavarian Landtag was longer than all its predecessors (17 November 1827 to 18 August 1828), the legislative output was far from satisfactory. A number of bills were passed, among them the important Landratsgesetz, by which new representative bodies were set up at the district level, thus complementing the representation guaranteed by the Stä nde- Versammlung. But many proposed laws were not even put to the vote in parliament; others were amended in a way unacceptable to the King. Unrealistic expectations, together with the feeling of mutual distrust both between and within the two chambers,131 characterised the Landtag of 1827/1828, disillusioning

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the Bavarian public, the members of the chambers and the King. Ludwig’s concluding address – not even given in person – reflected his discontent with the results of the first Landtag.

From 1828 onwards, favoured by the quasi- abolition of censorship three years before, the frustration of idealistic hopes for immediate liberalisation of the Bavarian state manifested itself in a small but growing number of malicious journalistic and literary attacks against the existing political and social system.132 The presumptuous attitude in many contemporary so- say ‘progressive’ pamphlets and writings affronted not only the state adminis-tration, but also the King, whose support for the liberal movement dwindled in view of the tactless invectives against traditional customs and institu-tions, particularly the Catholic Church, and repeated scathing rebukes of the Bavarian Constitution. Behr, for example, who had explicitly praised the Verfassungs- Urkunde in 1818, was unable to identify its fortes one decade later. In his eyes a new constitution was now unavoidable.133

Nevertheless, there was no fundamental change in Ludwig’s constitu-tional thought and politics until the second half of 1830. The French July Revolution and the subsequent revolutionary uprisings in Belgium, Poland, Italy and several German states like Brunswick, Hesse and Saxony, however, marked an irreversible turning point.134 Even though the events in France did not have an immediate effect on Bavaria, the indirect repercussions were all the more far- reaching. As early as the beginning of July 1830, Ludwig made it clear that a victory of the liberal forces in France was not desirable: ‘If the Liberals triumph in France, this can make the hackles rise on the demagogues here’.135 The news of the sudden fall of the Bourbon dynasty some weeks later irreparably damaged Ludwig’s romanticised view of monar-chical rule combining royal dignity and popular fidelity, and shattered his faith in progressive reforms. The Revolution in France convinced him that liberal tendencies had to be harnessed and made him determined not to allow anyone to overthrow him and his reign:

Should an attempt be made to copy the incident in the French cham-bers, they will see my true colours. Just to make that clear to everyone. My throne is not built on barricades, not on the principle of popular sovereignty, but on the monarchical [alone].136

Ludwig reacted harshly at the outbreak of a student demonstration in Munich on 24 December 1830 by temporarily closing the university. Such events confirmed the King’s opinion that the revolutionary spirit had to be broken; a spirit, which in Ludwig’s eyes was primarily fostered by the abuse of freedom of expression and the freedom of the press. In late September 1830, Ludwig had urged Lerchenfeld as Bavarian envoy in Frankfurt to initiate a federal resolution directed at restricting the freedom of the press in all member states in order to have a pretext for reintroducing

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censorship in Bavaria. In his strictly confidential letter, written even without the knowledge of his foreign minister, Ludwig left no doubt that he considered the abolition of censorship a big mistake.137 Unlike the King, however, his ministers saw no need for immediate action, but advocated caution and patience. In a rare case of unanimity, the Ministerrat warned Ludwig against taking repressive measures and underlined the loyalty of the Bavarian people as well as the peace and tranquillity in the country compared to other parts of Germany. Perhaps the most persuasive argument for moderation was put forward by Zentner, who pointed out that those states which had a constitution were exactly those which had hitherto not been faced by a revolution.138

However, these admonitions fell on deaf ears.139 Without consulting his Council of Ministers, Ludwig ordered censorship of the press to be restored on 28 January 1831.140 The royal decree, despite its being stricto sensu ‘consti-tutional’,141 triggered a storm of protest in Bavaria. The reaction was all the more intense, since the restoration of censorship was announced shortly before the convening of the fifth Landtag, a time in which public interest in politics was traditionally keen, and because the King had further decided to deny five leading liberals their seats in the Stä nde- Versammlung. Citizens petitioned that these decisions be revoked, and it was obvious that Ludwig’s measures had clearly missed their mark.

Against the backdrop of this awkward situation, the Stä nde- Versammlung convened on 20 February 1831. The fifth Landtag (in session until 29 December), in which candidates of the opposition had a majority,142 started a fervent debate about the restrictive measures of the crown. The minister of the interior, Eduard von Schenk,143 who had rejected plans for a reintroduction of censorship in the Council of Ministers, but counter-signed the press edict, was harshly attacked. Barely surviving a vote of no confidence on 5 May, Schenk finally handed in his resignation, which was accepted by the King on 24 May. In view of continuous opposition by the second chamber, Ludwig was at a loss and formally asked his Ministerrat for advice, not least because the passing of the new budget was also at stake. The answer of the ministerial conference, held between 6 and 8 June 1831, was nothing short of a rebellion. Zentner, justice minister, Armansperg, now minister both of finance and foreign affairs, and the interim minister of the interior, Stürmer, did not mince their words and openly denounced the autocratic attitude of the King. Above all, they criticised the fact that collaboration between monarch and government was sadly lacking, and that the King announced decisions, even in constitutional matters, over the head of his ministers without prior consultation.144 They demanded a Gesamtministerium be installed with autonomous political authority, that is the establishment of a cabinet system, and the immediate revocation of the controversial press edict before the start of parliamentarian debate on the budget. Ludwig finally relented and abrogated the edict on 12 June, but

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there were still no signs of political tension easing off, particularly since the Kammer der Abgeordneten saw a unique chance to advance its position.

In response to the chamber’s rebellious attitude and especially their rejecting of a lifelong civil list for the King, which had been his main concern in the fourth Landtag, Ludwig withdrew his support for definite regulations of ministerial responsibility, a revised penal code and a new press law, which he himself had announced in the inaugural speech for the fifth Landtag.145 The chance for a legislative quid pro quo had been lost. One of the few laws that could actually be passed in this atmosphere of reciprocal blockade were new standing orders for the chambers, by which the Stä nde- Versammlung was granted the autonomous right to set up rules for internal procedures within the limits of the Constitution.146 One day before the closure of the Landtag, a compromise budget including a temporal civil list was finally sanctioned, but only with a wafer- thin majority of two votes in the second chamber.147

The Landtag of 1831, later quoted by Ludwig as being the ‘longest and worst’ of his whole reign,148 marked a watershed in Bavarian history and the constitutional life of the country in particular. The political climate in Bavaria had been poisoned, and there was a deep rift between the King and the liberal forces. Ludwig was now firmly convinced that a new approach to politics was indispensable if the dignity of his throne, even the monarchy as such, was to be safeguarded.

Under the impact of the European constitutional crisis of 1830 and the experience of the Landtag of 1831, Ludwig’s constitutional enthusiasm and progressiveness were now replaced by a strictly formalistic, inflexible approach to the Verfassungs- Urkunde with a slightly reactionary touch. One expression of this ‘conservative turn’ was Ludwig’s abandoning the second chamber and his turning to the first, which he had formerly considered the main obstacle standing in the way of his politics in 1827/1828, but now in 1831 praised as a ‘barrage […] against the pretentiousness of the deputies’.149 The reshuffle of his government directly after the deliberations of the Stä nde- Versammlung, however, was of even greater importance. At the very end of December 1831, Ludwig not only dismissed Stürmer and Armansperg, but also Zentner, who had most actively accompanied Bavaria’s constitutional development since the Napoleonic Age, actually writing the constitutional document in 1818, successfully defending ‘his’ work in Vienna 1819, and then serving as the ‘constitutional conscience’ within the government. In the royal government there was no longer room for a minister who trusted in a dynamic develop-ment of the Constitution and had even dared to openly criticise the King for his anti- constitutional approach. As early as June 1831, after the ‘revolt’ in the Ministerrat, Ludwig had made clear what he expected from his ministers:

A Bavarian minister should not strive to be like a French or English one since Bavaria has another constitution and Bavaria’s king will never resort to the role which their kings have. The King of Bavaria will stay within

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the limits of the constitution, but will not allow his ministers to draw up others, [or] allow them to dictate him his business. It is hard to be a king, it should not be made even harder by the ministers.150

The line Ludwig took in 1831 remained unchanged until 1848 and was basically characterised by one single aim: the unconditional preservation of the monarchical principle. A tranquil development of the constitutional system was quite impossible under these circumstances. It was only a matter of time before constitutional conflict and public unrest would erupt, which it did in the Revolution of 1848.151

5.2 Baden

The proclamation of the Badenese Verfassungs- Urkunde on 29 August 1818152 met with relief and delight in the whole country. This was in view of the political liberties guaranteed in the constitutional document, but equally due to the fact that the Constitution was likely to secure the sovereignty of the Grand Duchy. Grand Duke Karl, whose health was in a fragile state in September 1818, received a vast number of letters of thanks (Dankadressen), of which around 50 were published in the Karlsruher Zeitung, praising the quality of the new document and the merits of the monarch: ‘The name Karl will be resplendent in the history of Baden; posterity will be beholden unto him as the founding father of their civil rights.’153 A common reason for applause was that the new Constitution guaranteed the territorial and dynastical integrity of Baden.154 Other addresses, like that of the town council of Mannheim, celebrated the new Constitution as a

representative constitution determining precisely and safeguarding the rights of the regent and of the people, [a representative constitution] wisely arranging state administration […] which guarantees, by supporting the most precious assets of mankind, the growth and development of religious and civil life, trade and commerce, science and the arts.155

Everyone was very much aware of the progressive nature of the consti-tutional document compared to other German states.156 Even though the wording of many of the letters of thanks was somewhat repetitive and lacking in originality,157 there can be no doubt that they expressed genuine approval of the new constitutional system.158 One indication for the sincerity of appre-ciation was municipal festivals spontaneously organised in celebration of the Constitution, for example in the district of Karlsruhe on 13 September.159

Within weeks of the Baden Constitution being enacted, utterances of approval could be read in newspapers throughout Germany, often together with an imprint of the constitutional text. ‘One million more Germans on the great road to constitutional freedom!’, the Deutsche Beobachter

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reported on 8 September together with a very optimistic judgement of the Constitution’s potential: ‘No other constitutional document has been under more favourable auspices at the time of its emergence as the Badenese!’160 The Oppositions- Blatt of 12 September described in detail the ‘splendid elements’ of the Constitution, praised its liberal character and confirmed that it had been welcomed by all patriotic Baden citizens, even though the text had not been debated with the representatives of the country before its implementation.161 The appraisal of the Verfassungs- Urkunde in the Aarauer Zeitung two days later was even more effusive. The Constitution provided for ‘such a true, such a liberal- minded representation of the people, which could be hardly expected under the present circumstances’.162

It says something for the innovative quality of the Badenese Constitution that despite the minor power- political role of Baden in the European context, it attracted close attention even in non- German speaking countries. This is manifest, for example, in that the Verfassungs- Urkunde was not only analysed in detail,163 but also translated in full in The Times only a few weeks after its proclamation.164 General public perception of the Badenese Constitution at home and abroad was even more positive than that of the Bavarian Constitution a few months before. It would not only be future scholars who recognised the advanced character of the Badenese Constitution, like Karl Siegfried Bader, who in the 1970s called it the ‘first truly liberal- constitutional document of a German state’,165 but even contemporaries. Ludwig Wieland’s Der Patriot, for example, described in detail the Vorzüge der Badenschen Verfassung vor der Baierschen (‘Merits of the Badenese Constitution over that of Bavaria’) in September 1818.166 In various fields the Badenese Constitution was deemed better: with regard to civil equality and rights, ownership laws, freedom of the press, and ministerial responsi-bility. Above all, the modern parliamentary system set down in Nebenius’ document was considered the main strength: the clear separation of the two chambers, preventing the nobility from controlling both, restricting the influence of the government in the first chamber, establishing mediation mechanisms to prevent the mutual blocking of financial legislation. Here, as in general,167 hardly any criticism was voiced. Wieland’s overall assess-ment was accordingly favourable, and it was his explicit wish that ‘the as yet antiquated constitutions in Germany, hopefully soon to progress, might take the Badenese example as a sound basis’.168

The fact that even outright liberals were full of praise was perhaps the highest distinction Nebenius’ text could be awarded. Such liberals included Rotteck, who was almost carried away by his feelings when at one of the special Verfassungsfeste in Freiburg on 7 September 1818 he emphasised the progressive nature of the Verfassungs- Urkunde as a tool for integration:

We have received a ständische constitution, a political life as a people […] We were men of Baden- Baden, Durlach, Breisgau, the Palatinate,

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of Nellenburg, Fürstenberg, we were men of Freiburg, Constance, Mannheim; yet we were not a Badenese people. But from now on we are One People, have one common will and one acknowledged collective interest, that is, one common life and one common law. Only now do we enter history with an independent role.169

It was the creation of a Badenese Volkskörper (‘national body’), which was the everlasting legacy of the Constitution. Even though it might not be absolutely perfect, as the Freiburger Wochenblatt outlined, the Constitution symbolised a ‘seed’ which if cultivated would grow into a ‘mighty tree’ bearing fruit for all to enjoy.170

In the eyes of the liberals, the most suitable place for ‘cultivating’ was the Ständeversammlung, whose first session had been scheduled for 1 February 1819.171 A precondition for the convening of the Landtag was the release of detailed election regulations. But it was only at the beginning of December that the Grand Duke allowed a Wahlordnung to be submitted. No one seemed better qualified to prepare the election regulations than Nebenius, the actual author of the constitutional document. He did not hesitate in taking on this task172 and was able to finish his work within a few days, not least because he had already prepared the draft of a Wahlordnung at an earlier date.

Nevertheless, the proclamation of the regulations, which complemented and specified the electoral terms of the Constitution,173 had to be deferred, since Grand Duke Karl died on 8 December 1818, aged 32. Three weeks after the sovereignty and territorial integrity of Baden had been guaranteed by the Congress of Aachen (20 November 1818), thus embedding the provisions of the Verfassungs- Urkunde in international law, Karl’s uncle Ludwig (1763–1830) succeeded to the throne. Although Ludwig was not overly enthusiastic about constitutional government, he was willing to continue the implementation of the Constitution and therefore approved Nebenius’ Wahlordnung on 23 December.174 After the second chamber had been elected, the first Badenese Landtag was finally opened on 22 April 1819 in Karlsruhe.175

In his inaugural speech to both chambers, Ludwig I declared his faith in the Constitution and his will to preserve it.176 At the same time, Ludwig made it clear that under his reign there would be no going beyond the borders of the Constitution, and that he counted on the wisdom and sense of loyalty from the Landtag.177 The Grand Duke and his government inter-preted the Constitution and the competences of the Landtag in the tradition of bureaucratic absolutism and wished the legislative work of the chambers to be restricted to debating and passing budgets. The intentions of the Stä nde- Versammlung, however, particularly that of the second chamber, were quite the opposite.

The structure and composition of the second chamber with its 63 members was distinctively marked by the electoral law,178 which was highly progressive

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for its time. Around 70 to 72 per cent of the male population over 25, that is about 17 per cent of the whole population, had the right to vote; represent-ing the highest proportion in Germany and Europe. Unlike other German Landtage during the Vormärz, the members of the Badenese second chamber were almost exclusively from the middle classes, with self- employed persons forming the biggest group (approx. two thirds),179 followed by civil servants (approx. one third). The majority of parliamentarians regarded themselves as liberals, and their aims for the first Landtag were accordingly ambitious: to turn the Obrigkeitsstaat into a liberal- constitutional state.180 Thus, disputes between crown and chambers were inevitable.

Despite the fact that the political organisation of the Badenese second chamber was in its infancy,181 the chamber was astonishingly cohesive and single- minded about its main political programme right from day one. Headed by Ludwig von Liebenstein,182 the chamber confronted the govern-ment with a series of motions, which the latter was only partially willing to accept. What the second chamber demanded among other things was the immediate abolition of any remaining vestiges of feudalism, especially the Zehent ‘tithe’, the separation of judiciary and administration, the establish-ment of jury courts, the passing of a law on ministerial responsibility, the abolition of existing customs barriers, the setting up of local self- government, and the guarantee for full freedom of the press. The latent conflict between government and chamber erupted over questions of the state budget and the new Adelsedikt of 16 April 1819,183 which provided the mediatised nobility with a number of concessions. The second chamber refused to pass the budget proposal in its existing form and urged for cutbacks, while dismissing the Adelsedikt completely. Their argument was that the new edict was unconstitutional, since the original edict of 23 April 1818 was protected by § 23 of the Verfassungs- Urkunde. Therefore, any modification or revision claiming to be legal would logically beg involvement of the chambers. Forced onto the defensive by such a strong headwind, the government took flight in adjourning the Landtag on 28 July 1819 sine die.184

German liberals might have been positive about the first Landtag in Bavaria and Baden and praised these events as the emancipation of the ‘political public’ and the beginning of a parliamentary era.185 The European great powers, however, saw matters differently, although with important national variations. British diplomacy was worried by the political unrest caused by the Landtag, but pursued a policy that existing constitutions in the German Confederation should neither be abolished nor substantially restricted.186 Otherwise the stability of the German Confederation was seen as being at stake, which was considered a prerequisite for the consolidation of Europe: ‘[What is central is] the general peace of Germany, from which Europe’s is inseparable.’187 The impression that Russia, too, was inclined to defend the constitutional orders of the Southern German states, with two of which (Baden and Württemberg) Tsar Alexander I had close dynastic ties,

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was underlined by the Russian envoys Petr Borisovic Kozlovskij (Karlsruhe and Stuttgart) and Fedor Petrovic Palen (Munich). They openly defended the representative systems in Southern Germany and interpreted the emancipa-tory efforts of the chambers as legitimate expressions of their interests.188 The French envoy, La Garde, shared their views and rather than criticising the chambers blamed monarch and ministers for not having fully under-stood the needs and consequences of a representative system.189

Within the Russian government, however, there was growing scepticism. The only purpose attached to representative bodies was essentially to base governmental decisions on a broader foundation and thus concentrate all state power:190 parliaments should be submissive, strengthen the monarch and provide him with increased possibilities to use existing state resources.191 Under such circumstances it is hardly astonishing that there was little under-standing for the debates on political principles in the Landtag of Bavaria, Baden and Württemberg,192 and increasing motivation if not to support at least to tolerate Metternich’s initiatives for restricting Southern German constitutionalism.

Aspirations to work against the tide of ‘parliamentary presumptions’ did not only come from abroad. In view of the oppositional conduct of the Ständeversammlung, drastic countermeasures were considered and prepared by the Badenese government itself. During the ministerial conference in Karlsbad, which started ten days after the suspension of the Landtag, Baden’s foreign minister Berstett was even prepared to allow the Bund to interfere in the domestic affairs of its members, and it was only due to the fierce resist-ance of Württemberg and especially Bavaria that his wishes were not fulfilled in the later Wiener Schlussakte. In contrast to Bavaria, the Karlsbad Decrees were eagerly implemented by the grand-ducal government. The Badenese Zensuredikt of 5 November 1819,193 that closely followed the Prussian Censorship Decree of 18 October,194 put a sudden stop to the development of a free press in Baden,195 and during the 1820s the Badenese press – one of the liberals’ most valuable tools in influencing public opinion – was essentially silenced.196

Restricting freedom of expression was not the only way of weakening oppositional forces. While Berstett tried to find support in Karlsbad, the Badenese minister of finance, Karl Friedrich von Fischer, drew up a memorandum developing his ideas on ‘mild’ reaction.197 Fischer consid-ered ways of repealing the existing Constitution and setting up a new one, in which the Landtag would only be granted legislative competences if new taxes were raised. In the end, Fischer’s radical suggestions were not followed up: particularly since the political consequences were incalculable, but also because the Badenese government could not count on support from Austria or Prussia in any undertaking to abolish the Constitution, as had already been seen in Bavaria. In May 1820, Metternich explicitly repeated the Austro- Prussian position in a letter to Berstett that ‘newly

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established institutions, once having gained constitutional power’, had to be kept, whether they liked it or not.198

The government and Grand Duke Ludwig harboured the hope that adjourning the Landtag and the Karlsbad Decrees had been warning enough for the refractory chamber. And indeed, the second session of the first Landtag, re- opened on 24 June 1820,199 was of quite a different character than that of 1819.200 The lower house displayed its will to cooperate and avoid conflict. In return, the government was prepared to make some concessions and refrain from further coercive measures against the chamber, for exam-ple by allowing all civil servants elected as parliamentarians to take part in debates. The Ständeversammlung ended with the passing of a budget based on mutual consent between crown and parliament. Ludwig’s concluding address on 5 September was, likewise, conciliatory and positive in tone.201

The promising second half of the first Landtag led to the government reorientating its constitutional policy, especially in that the controversial Adelsedikt of April 1819 was abandoned.202 These domestic endeavours to achieve a détente went hand in hand with a change of policy in foreign affairs. Unlike in 1819/1820, when the Badenese government had pinned its hopes on the German Confederation, Baden now moved closer to the ‘trialistic’ ambitions of Bavaria and Württemberg, aimed at strengthening the Southern German states to the disadvantage of Austria and Prussia.203

All in all, the prospects for the country’s political and constitutional system looked good, with higher levels of administration dominated by liberal- minded, reform- oriented civil servants. The third Badenese Landtag, opened on 26 March 1822 started in the same peaceful and constructive atmos-phere as the second had ended. During the break of the Ständeversammlung from 3 August to 22 November, however, the political climate suddenly changed. The second phase of the Landtag was marked by conflict between government and second chamber over a new law on conscription. The dispute worsened during deliberations on the budget and finally plummeted into open confrontation about military spending. While the govern-ment ostentatiously defended the monarchical principle and insisted on more money being spent on the army, the chamber was determined to reduce military spending to demonstrate its fiscal power and to underline the priority of domestic legislation. Attempts by Liebenstein to mediate and warn his fellow parliamentarians that their actions over a rather negligible sum204 might well provoke a complete break with the government were to no avail. Under the initiative of Johann Adam von Itzstein,205 spokesman of the radical liberals, a compromise proposal was rejected by the second chamber with 30 votes to 29. The answer of the crown was clear and unmistakable: the Grand Duke closed the Landtag on 31 January 1823206 and refused to give his assent to any proposed laws, placing the blame for the failure of the Landtag fairly and squarely on the shoulders of the opposition, who had frustrated all his plans for reform by its uncompromising attitude.207

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Political conflict with the Ständeversammlung had a share in the Badenese government becoming reoriented towards the German Confederation and Metternich,208 and gave rise to new initiatives to revise the Constitution. In September 1822, Friedrich Freiherr von Blittersdorf, Baden’s envoy at the Federal Diet since 1821,209 had presented a memorandum to Metternich and the Prussian envoy, in which Blittersdorf launched a frontal attack against the constitutional system of his homeland:

The first chamber is allegedly said to represent the aristocratic principle and the second chamber the democratic one. Yet the democratic principle needs no representation anywhere and in a monarchical- constitutional state both chambers should actually be set up aristocratically. But what if the aristocratic principle was represented nowhere and the democratic [principle] dominated everywhere? These are the lamentable circum-stances existing in Baden.210

In his eyes, the second chamber was entirely dominated by staunch supporters of the revolutionary spirit, especially members of the civil service. Blittersdorf therefore recommended the following: the political power of the civil service had to be broken by taking away their right to be elected to the Landtag, and for the other parliamentarians, drastic age and census restrictions should be put into place.

Even though the Badenese government had no wish to transcend the boundaries of the Constitution in such an obvious way,211 this did not imply that ideas to revise the Constitution were abandoned altogether. Not only did Blittersdorf continue to argue for the existing Constitution to be revised;212 members of the grand- ducal government also felt that the idea of a revision could be entertained. In 1824, Berstett entrusted Karl Salomo Zachariae,213 professor of law at the University of Heidelberg, whose loyalty to the government and conservatism was beyond question, to render an expert opinion on whether constitutional changes were necessary, and in what way they could be realistically transformed into political action. In his Denkschrift, Zachariae came down hard on the existing system and took the view that it was ‘impossible to govern with the existing constitu-tion’, which was ‘a public calamity’ and in dire need of modification.214 Given that direct foreign interference by a federal resolution was not a desirable option, unilateral action by the Grand Duke seemed to be the best alternative.215 Zachariae recommended abrogating the existing document in favour of a new one by arguing that the Constitution of 1818 not only violated federal law, but had basically never come into force due to continu-ous clashes over the budget.

Berstett disapproved of such a radical revision of the existing Constitution, not least because it was unlikely that the support of the other members of the government or the Grand Duke could be won for such a high- risk

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venture. Instead, in October 1824, Berstett asked Zachariae to prepare a second memorandum. Zachariae complied with this wish in an exposé entitled Ueber einige in der baden’schen Verfassung zu treffenden Veränderungen, in which a clear distinction was made between a) those changes to be made by the monarch himself (in Zachariae’s eyes all provisions of the Constitution in contradiction with the Wiener Schlussakte, but also the election regulations), and b) those changes which could only be carried out with the express agreement of the chambers.216 Still the Badenese government shrank from taking unilateral action, despite the fact that the chances of gaining public support for any venture aimed at weakening the Ständeversammlung were not bad either.

The turbulent second half of the Landtag 1822/1823, resulting in Ludwig blocking all legislative projects, had compromised the Ständeversammlung, which was largely blamed for the political stagnation. Disapproval of the chambers’ overall ‘bad behaviour’ found voice in a number of public addresses to the Grand Duke in late 1824, after the formal conclusion of the Landtag. The common tenor of these addresses from different parts of the country was: restriction of the Ständeversammlung’s powers to the benefit of the monarch. In a somewhat anachronistic way, paternal feelings for the Grand Duke were aroused and contrasted with the irresponsibility of the parliamentarians, and some of the addresses even asked for a complete repeal of the Constitution. The Grand Duke should rule ‘without the inter-ference of a body’ which had failed to fulfil the expectations of the crown or the people.217 Yet the Badenese government rejected such demands:

Politically, the government would be well advised to preserve existing circumstances and not change them by force to be able to counter [any] such attempts from below all the more resolutely. For it is by the same right, with which the subjects, [now] happy under the […] government, demand a change to the constitution because it does not seem to benefit them, that under other prevailing circumstances a change to the adverse could be demanded, or even one threatening the ruling family.218

Any appearance of illegality had to be avoided, and therefore consti-tutional change could only take place through procedures provided in the Constitution itself.219 The will to demonstrate steadfast loyalty to the Constitution emanated not least from the insight that there were less hazard-ous alternatives to direct parliamentary activity in a governmental direction than breaching the Constitution. In the run up to the third Landtag in 1825, the government set the wheels of the ‘ministerial electing apparatus’220 in motion in local municipalities, with state officials campaigning for govern-mental candidates in the electoral colleges, while undesirable candidates were brought into discredit. This approach proved to be a complete success. Practically all ‘unwelcome’ candidates, including Rotteck, failed to be elected

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for the Landtag.221 In the end only three – Johann Georg Duttlinger, Matthias Föhrenbach and Albert Ludwig Grimm – of 63 delegates in the second chamber were truly oppositional. It is therefore not astonishing that formal complaints made about electoral fraud did not stand a chance of being heard in the chamber.222 For the first time since 1819 the government could be sure of not being confronted with a rebellious parliament.

Considering the submissive mood of the second chamber, the authorities seized their chance. In his welcome address to the chambers on 24 February 1825, Grand Duke Ludwig declared the need for certain constitutional changes:

Experience so far, similar provisions in the constitutions of neighbour-ing states, the hope of thus enabling savings to be made, and finally the public voice have induced me to propose extending the interval between one Landtag to the next and the periodic renewal of the elected members of the Chambers.223

Even though these reasons could hardly disguise the government’s actual power- political ambitions, the revision was passed by both chambers with an overwhelming majority. On 21 April 1825, the first constitutional revi-sion in Baden was officially proclaimed. It prolonged the period of time between two Landtage, and lengthened the budget periods from two to three years; further, the partial re- election of parliamentarians every second year was replaced by general elections every sixth year (see § 29, 31, 38 and 46 of the Constitution).224 After only three months, the third Landtag came to an end ( June 1825).225 The fourth Badenese Landtag in 1828 (February to May) took an identical course,226 and there were no anti- governmental activities, nor any considerable political initiatives. Reforms, long overdue, particu-larly in the agricultural and municipal sector, continued to languish, and the reputation of the Ständeversammlung steadily worsened. The Bavarian envoy in Karlsruhe caustically characterised the Landtag of 1828 as ‘the deaf and dumb school established for the Grand Duchy of Baden in publico’.227

Yet, despite its control over the chambers in the second half of the 1820s, the government was restrained in its actions. Modifications to the Constitution initiated by the authorities were negligible compared to the far- reaching changes that had been envisaged. Notwithstanding that the reign of Ludwig I was undoubtedly more conservative than that of his predecessor, loyalty to the text of the Constitution remained the maxim of the authorities to ensure political peace.

However, a strict legalistic approach alone was not a lasting guarantee for the existing constitutional order. The paralysis of political life and the stag-nation of the legislative process fired growing public annoyance which was likely to become as much a danger to the stability of the political system as a direct violation of the Constitution by the government might have been.

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The warning sign was the ebbing of ‘constitutional patriotism’ in the 1820s. Tools which the authorities might have used to breathe renewed life into political and constitutional culture were basically left untouched: neither indoctrination, for example by catechisms,228 nor other alternatives such as festivities229 or ‘visualisation’ (monuments, coins, and so on) played a consid-erable role in the constitutional politics of the government during the 1820s. Individual members of the government, among them Ludwig Georg Winter, administrative head of the ministry of the interior (Ministerialdirektor),230 recognised the dangers of the political and legislative lethargy in the country, but were unable to assert their ideas.

The death of Ludwig I, the last male member of the Zähringer House of Baden, on 30 March 1830 altered the political coordinates in the Grand Duchy and raised the country’s hopes. His stepbrother and successor Leopold (1790–1852) was reputed to be affable, open- minded and liberal, and there now seemed to be a realistic chance of making headway in reform. The outbreak of the French July Revolution further heightened expecta-tions, even if the practical consequences of revolutionary events remained minor. In late autumn 1830, a reshuffle in the ministry announced impor-tant political changes: Berstett, minister of foreign affairs, and Berckheim, minister of the interior, were relieved of their duties. Berckheim’s post was taken over by Winter, and Nebenius became Winter’s Ministerialdirektor, thus belatedly rewarded for his outstanding services rendered in the drafting of the Baden Constitution and the election regulations in 1818.

Winter was a keen promoter of the constitutional monarchy and open to many liberal demands of the time, even though he would not allow the monarchy to be reduced to a merely decorative function. As a ‘prag-matic liberal’,231 Winter was able to convince Grand Duke Leopold of the need to break with the existing constitutional practice. Winter particularly condemned governmental manipulation of the elections as reprehensible and counterproductive.232 On Winter’s initiative, vote- rigging was officially banned for the elections of the fifth Landtag.233 The election results left no doubt as to the mood of the general population: the Liberals, many of whom had formed the opposition in 1822/1823, gained a vast majority in the second chamber.234 The self- confidence of the second chamber after the opening of the Landtag on 17 March 1831 reflected these election results. In reply to the Grand Duke’s opening speech it frankly stated its high expec-tations, especially with regard to the Constitution, which should receive ‘new importance and power’ by being complemented with ‘still lacking guarantees’.235

On 21 March, only four days after the opening ceremony, a motion to revoke the constitutional revision of 1825 was put forward in the second chamber. This initiative also found overwhelming support in the upper house. Under these circumstances the government felt duty- bound to submit a corresponding bill on 25 May. Within two weeks the second revision of

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the Baden Constitution, by which the changes of 1825 were annulled, was passed in the chambers.236 In the same vein, the Ständeversammlung served as the main legislative driving force during the nine months of the fifth Landtag, with most of the initiatives being approved by the government and especially Winter. Several important laws were passed, including a progressive municipal law, which strengthened local self- government, upgraded local councils and extended the right to vote by making no further distinction between Ortsbürger (full citizens) and Schutzbürger (dependent citizens).237 A new code of civil procedure made the administration of justice in open court the norm, and agrarian reforms were pushed forward.238 Fully aware that its power of veto in financial affairs was a substantial lever, the second chamber got the government to present a new press bill in the final phase of the Landtag, and from 1 March 1832 censorship was abolished,239 thus endowing Baden with the most liberal press law in Germany. The progressive forces in the country had every good reason to be satisfied with the Landtag of 1831: its dynamism was unprecedented, and the enormous politicisation of the public before, during and after the Landtag,240 impressively under-lined the fact that there was, indeed, broad popular support for reform. In order to celebrate the achievements of the Landtag and the freedom of the press in particular, numerous political festivities were organised at the beginning of 1832,241 and it looked as if the ‘political hibernation’ of the 1820s had now finally ended.

However, disillusionment soon followed. The German Confederation and especially Austria and Prussia were alarmed by the political developments in Baden, particularly by the new press law, which was considered incom-patible with the existing federal law and the Karlsbad Decrees. On 5 July, the Federal Assembly formally demanded the suspension of the Badenese press law. Meanwhile, the Hambach Festival in late May 1832 had not only reinforced Metternich’s reactionary rhetoric, but had also led to an about- turn in the Badenese government and on the part of Grand Duke Leopold, who reinstated Reitzenstein as minister of state. At the end of July of the same year, the Badenese government complied with the federal request, not least since Austria and Prussia openly threatened to revoke the press law by federal means. On 28 July, not even five months after its implementation, Leopold declared parts of the press law null and void and reintroduced censorship.242 Several liberal newspapers, which had been founded in the previous months, were prohibited, among them Der Freisinnige (Freiburg) and Der Wächter am Rhein (Mannheim).

Suddenly the tide had turned, and the Baden case showed clearly that the individual states were left with as good as ‘no room to move’ in constitu-tional matters by the Karlsbad Decrees of 1819 and the Wiener Schlussakte of 1820. They were ‘the reactive politics of Metternich- Prussia, fused into law’,243 a form of ‘ self- commitment to political paralysis’244 eagerly observed by the German Confederation under the direction of Austria and Prussia.

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All bridges for a beneficial political cooperation with the liberal Bürgertum had been burned, and political conflicts were almost inevitable, in Baden, too.

The sudden change from liberalism to repression in 1832 caused unrest in Baden. The repeal of the press law was rightly interpreted as a violation of the Constitution, since it had not involved the Ständeversammlung. In the larger towns of the Grand Duchy there were public protests and sporadic outbreaks of violence. In Freiburg, a stronghold of the liberal movement, the university temporarily closed and the two spokesmen of the local protest, Rotteck and Carl Theodor Welcker,245 were pensioned off.

These unpleasant events marked the beginning of an unstable period in Baden’s constitutional life. Crown and government, pressurised by the German Confederation, but also alarmed by the radicalisation of the national move-ment in Germany and events such as the Frankfurter Wachensturm in April 1833, adopted an even more restrictive approach than before. Government interference in the elections of the Ständeversammlung, Baden eagerly supporting the repressive measures passed at the ministerial conferences in Vienna 1834, and the appointment of Blittersdorf as foreign minister in late 1835 were just some of the ‘snapshots’ of the new political line. However, oppositional forces were no longer as easy to deflate as in the 1820s. After the death of Winter in 1838 and the resignation of his successor Nebenius one year later, open confrontation erupted. Blittersdorf’s undisguised objective to break the ‘oppositional spirit’ in Baden at any cost246 was nothing short of a declaration of war on the chambers and not only paralysed legislative work in its wake, but also fuelled the growing radicalisation tendencies among the population of Baden.

Despite, or perhaps because, Baden enjoyed one of the most modern constitutions of its time, the clash of repressive governmental measures and the Fortschrittspartei created a deeper feeling of distrust and discontent than in other German states with reactionary systems of government. The existing revolutionary bubble finally burst in 1848/1849 with one of the most radical political uprisings in Germany, leading to the temporary creation of a Badenese Republic in May 1849.247

5.3 France

The proclamation of the Charte in June 1814 attracted a great deal of attention not only in France, but from all over Europe,248 with the new constitutional system a subject of much reflection and discussion. The reactions, however, were mixed.

In France, the new political system was perceived less effusively than the monarchical constitutions which followed in Southern Germany four years later. Although there were publications in praise of the Charte, there was also a good deal of sceptical, even openly critical writing. Due to the turbu-lent political and constitutional development in France over the previous

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decades, deep ideological rifts had been opened. The Charte was basically a compromise between ‘revolutionary’ and ‘reactionary’ ideals, but this fact in itself made it vulnerable to attack from both sides. While ultra- royalists sought a radical break with the ‘Jacobinical past’ and, as Joseph de Maistre, considered the Restoration as a hidden continuation of the Revolution and thus flawed,249 partisans of the Revolution saw the Charte purely as yet another instrument of arbitrary rule, lagging behind the spirit of its time. They sought to set up a republic or at least a regime based on the principles of the sovereign nation, as Henri Grégoire, former bishop and revolutionary leader, had already declared in April 1814 in his treatise De la Constitution française de l’an 1814:

The word sovereign […] can only apply to the nation, as a nation only belongs to itself. Sovereignty is an essential and inalienable property for the nation, which can never become that of an individual or a family. From the same principle follows the truth that all public functions, from the most minor to the most prominent, having been instituted for the common good, can never be the property of those who occupy them. Thus, kings, princes, senators, judges, etc., all delegates of the people, are responsible and, when necessary, dismissible.250

The Charte explicitly opposed such revolutionary principles and under-lined the inviolability of the crown and monarchical sovereignty as well. As a result, some of the essays published after the enactment of the new document were harsh and hostile. One anonymous pamphlet entitled De la Charte constitutionnelle bluntly claimed that ‘the constitutional forms’ had been ‘violated in its [the Charter’s; MJP] composition’.251 In the eyes of the author,

it is made only for the king, to enshrine his absolute power as a constitu-tional principle. What a principle! And what a Constitution! This is what is called a liberal Charter! Ah! Let us rather give it the name attributed by those ousted royalists, who hardly wanted to recognise national power in it: Royal Charter. Royal indeed! I see nothing constitutional in all this.252

There were basically no fundamental differences between Napoleon’s despotic empire and the restored Bourbon monarchy:

One talks about the despotism of the former Government, and one walks in its footsteps. What did that Government do? Appropriate all powers and reduce the Nation to a ghost of representation and freedom. What is the present one doing? The same thing. It keeps to the truth of principles made holy twenty- five years ago, which would be impossible to destroy, but it attires them humiliatingly, in shocking contrast to their essence.

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What is the result? That all the fundamentally good foundation is poisoned by these inappropriate forms, that [there is] too much attachment to old ideas, making them look like as preservers of the monarchy, while in fact they destroy the monarchy by injuring the national pride.253

Reactions to the Charte from abroad were similarly ambiguous, but based on different reasoning. Most foreign newspapers and governments took a favourable view of the new Constitution and expressed their relief that the restoration of the Bourbon dynasty had taken place under the premises of ‘constitutional government’, which resembled existing constitutional systems, particularly the English, but nevertheless had its own individual identity and trademark.254 Louis’ Charte found particular favour in Russia and Great Britain, mainly for pragmatic reasons. For the British and Russian governments in particular, the French Charter of 1814 successfully com-bined ‘revolutionary heritage’ and autorité royale and was thus a promising guarantee both for a peaceful France and the consolidation of the Bourbon monarchy, which was in itself crucial for establishing lasting peace in Europe.255 That was not least since the foreign political goodwill of the Bourbon dynasty was beyond question.256

While in Great Britain and Russia the predominant opinion was that the French Constitution was a trustworthy tool in stabilising the (geo)political status quo, the Prussian and especially Austrian government took a less positive view. In their eyes, the main fault of the Charte was that it perpe-tuated many of the ideas of the Revolution and was thus hardly a basis for a post- revolutionary political order in Europe. Shortly after its enactment, Metternich made it quite clear how he felt about the Constitution in a con-versation with Louis XVIII: ‘Your Majesty, You believe You are establishing the Monarchy; You are mistaken, it is the revolution that sustains You!’257 This, however, was less a warning than an expression of serious concern.

Unsolved and entrenched domestic problems posed the greatest threat to the future of the Charte in France. The big question was whether any new constitution could last, and whether the restored monarchy could ever match the ‘revolutionary spirit’ of the French. In its February edition of 1815, the Edinburgh Review, an acknowledged Whig party paper, bluntly answered ‘no’ and declared the restoration of the Bourbons as virtually impossible:

The restoration of the French Monarchy was impossible. Its elements were destroyed. No proprietary nobility – no opulent church – no judiciary bodies – no army. Twenty- five years had destroyed and produced more than several centuries usually do. The King of France could not be restored. A Bourbon Prince was placed at the head of revo-lutionised France. It was not merely a loose stone in the edifice. – It was a case of repulsion between the Government and all the Elements of the Society.258

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There was concern that not only were the historical foundations for monarchical government missing, but also that the policy of some of the restored governments in other countries of Europe was extremely injurious to the Bourbon administration, above all that of the Spanish: ‘Spain was represented at Paris as a mirror, in which all nations might see the destiny prepared for them by restored Princes, and the yoke which would be imposed on them if Sovereigns were not restrained by fear of their people.’259

All in all, the situation for the new regime was delicate, particularly since the Bourbon dynasty could no longer rely on ‘tradition’ alone as a bond between people and crown. The prospect of peace after years of devastating war had facilitated the regime change in 1814, but that change alone was not a durable surety for the lasting continuation of the monarchical- constitutional system. The only means by which the Bourbon monarchy could gain legitimacy and stability in the long term was by means of successful politics.

Louis XVIII was aware of these challenges and took his role as a consti-tutional monarch seriously.260 The tragic destiny of his brother was a warning for the King, who was by nature dispassionate and pragmatic and hence cut out for the role of political moderator. His politics during the first Restoration was focused on the principles ‘forgive and forget’ (pardon et oubli),261 whereby Louis not only honoured his promise of a general amnesty, but allowed for continuity in the state administration and bureaucracy. The King did in fact retain 76 per cent of the imperial civil servants, including 45 of the 87 prefects262 However, his reconciliation politics soon encountered practical problems: his munificence towards the political elite of the Empire was bought at the cost of growing disappointment among the émigrés (about 70,000), whose hopes of generous rewards after their return were dashed, compounded by the fact that state finances were in a miserable shape and left hardly any room for creating new posts or granting other forms of compensation. Even more problematic was that the financial burden of the state made cost- cutting measures an absolute must. The army was especially affected by these measures, by which thousands of professional soldiers and officers were discharged,263 thus generating a hotbed of trouble. Moreover, the fact that Napoleonic officers were discharged, while members of the former émigrés army were awarded with high ranks and the Maison militaire du Roi was re- established, cast a damning light on the cuts in military spending.264 Cause for public displeasure was also that consumer tax could not be abolished for the time being,265 and that the results of the First Treaty of Paris (30 May 1814) could be seen as the price Louis XVIII had to pay for the restoration of the monarchy.266

The instability of the new political order was most drastically demon-strated in 1815 by the interlude of the ‘Hundred Days’. Napoleon’s return at the beginning of March and his triumphal march through France dashed Louis’ hopes of fortifying his reign through a policy of moderation.

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His warnings of civil war and the collapse of a functioning constitutional order were to no avail,267 and on 19 March, after he had formally dissolved the Chamber of Deputies as a precautionary measure,268 Louis had to flee the capital. The fact that neither public nor political and administrative support for the usurper was unanimous and that an important part of the military elite remained loyal to the Bourbons, was hardly a consolation for Louis XVIII. That Napoleon did not dare to reintroduce the former imperial constitution and was forced to proclaim a new one, entitled Acte additionnel aux Constitutions de l’Empire, that was largely based on the provisions of the Charte,269 could not have been much of a comfort to the King either. What these circumstances did indicate, however, was that the constitutional foun-dations of the Bourbon monarchy had not been the weakest link in the First Restoration and had not triggered its failure.

Napoleon’s crushing defeat at Waterloo on 18 June 1815, followed by his resignation a few days later,270 prepared the ground for the return of Louis XVIII and the Second Restoration. But the situation in 1815 was now quite different. On the one hand, the allied powers saw their hopes of 1814 shattered that the establishment of a constitutional monarchy and a reason-able peace treaty would stabilise the political situation in France. Now, one year later, harsher peace terms were imposed by the Second Treaty of Paris (20 November 1815):271 France was reduced to its 1790 boundaries, ordered to pay 700 million francs in indemnities and maintain a Coalition occupation army of 150,000 soldiers in its eastern border territories for a maximum of five years. Moreover, a permanent ‘Conference’ of the allied powers was established at the ambassadorial level to discuss internal developments in France.272

On the other hand, the Hundred Days had far- reaching implications for French domestic policy, too. On 25 June Louis XVIII had already indicated that he was willing to re- establish the constitutional system of the Charte, but determined to take a tougher political line:

[W]e hasten to return to our States in order to restore the constitution that we had given to France; to repair, by every means in our power, the evils of the rebellion and the war that was the inevitable outcome, to reward the good, to enact existing laws against the guilty, finally to gather the immense majority of the French around our paternal throne.273

The enactment of the Declaration of Cambrai three days later put these objectives down in black and white.274 Louis underlined that he had no intention of encroaching on the constitutional guarantees vested in the Charte. But at the same time, he made it clear that those who had been cohorts of Napoleon and plunged France into misery had to be punished:

[T]he blood of my children was shed by a betrayal beyond anything in the history of the world: this betrayal brought the foreigner into the heart of

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France; every day reveals a new disaster to me. For the dignity of my throne, in the interest of my peoples, for the respite of Europe, I must therefore not pardon the instigators and the perpetrators of this horrible intrigue.275

A political purge followed, with a wave of dismissals of public- office holders who were suspected of having cooperated with Napoleon. Around 80,000 civil servants, among them 38 prefects and 115 vice- prefects, and 15,000 officers were affected.276 Generals, who had changed sides, were impeached for high treason. Some of them, including Marshal Michel Ney, were sentenced to death.

Equally as resolute was the action taken against the two chambers, which had been reshuffled during Louis’ absence.277 On 24 July, 29 peers, who had sympathised with Napoleon, were expelled from the first chamber,278 and on 17 August, 94 new peers were appointed, hence guaranteeing a clear majority for the crown.279 Even tougher were the measures against the Chamber of Deputies, which, like the Senate one year before, dared to attach conditions to the return of the King. According to the 104 articles encompassed in the constitutional draft of the chamber,280 ministerial responsibility should be extended (Art. 27 and 28) and the royal prerogative limited, for example in foreign affairs (Art. 22), and in the realm of legislative initiative (Art. 44). Above all, the draft underlined the sovereignty of the nation (Art. 13).281 The King, however, did not take kindly to such pretensions: the chamber was sealed off by royal troops on 8 July, and the Charte thus reinstated through military power.282 Five days later, the Chambre des Députés was formally dissolved and new elections were called, justified by the need to represent the nation:

After the misery of the times interrupted the session of both Houses, we thought that the number of departmental deputies would be, for various reasons, far too small to represent the nation sufficiently: what mattered above all in such circumstances was that national representation be numerous, that its powers be renewed, that they emanate more directly from the electoral colleges, and finally that the elections serve as expres-sion of the current opinion of our people.283

Given that an electoral law had not been passed during the First Restoration, Louis considered himself entitled to set provisional rules for the new election, too, and to revise a few provisions of the Charte. This, he felt, would ensure fair representation. Among other things, a two- stage, direct electoral procedure was introduced and the number of deputies raised from 262 to 395.284 In addition, the age limit for eligibility to stand for parliament were lowered from 40 to 25, and from 30 to 21 for the right to vote.285

These actions taken by the crown demonstrated determination to over-come resistance even with repressive measures, but also that reform of the

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existing constitutional system was not completely out of the question. After the Hundred Days, the nation was even more divided than before, particularly since the unofficial White Terror during the summer of 1815 had widened the existing political division still further. Louis XVIII realised that in the long term, only conciliatory, undogmatic politics could guarantee stability and prosperity. He was willing to do his bit by estab-lishing a functioning constitutional and parliamentary practice.286 At the reopening of the chambers on 7 October 1815, Louis expressed his hopes for fruitful cooperation between chambers and crown, based on the regula-tions of the Charte.287 Notwithstanding, the parliamentary session turned out to be conflict- ridden and the first real practical test of endurance for the constitutional system.

In autumn 1815, traditional roles were turned upside down. No fewer than 350 of the 402 parliamentarians in the second chamber were ultras, who voiced their opposition against the Charte in no uncertain terms.288 United by the experience of exile, the ultra- royalist movement289 pursued reactionary policies, going hand in hand with the desire for retribution against everything deemed ‘revolutionary’. But unlike his brother, the Comte d’Artois, Louis XVIII showed no sympathy for the aspirations of the ultras, whose figureheads were Villèle, La Bourdonnaye, Corbière, Vitrolles and the political philosopher Bonald. The fact that the King did not support their radical political agenda resulted in the highly paradox situation that the ultras actively opposed the King and set themselves up as spearheads of parliamentarism. Their aim was to limit the role of the monarch and allow government to only pursue policies if there was a parliamentary majority. This was a vote of no confidence for the newly- appointed, moderately conservative royal government under the Duke of Richelieu. In the forth-coming months, the ultra- royalists continued to demand that the ministers had to have the confidence of the chamber, while the liberal minority in the chamber defended the King’s prerogative to appoint the members of his government independently. These parliamentary discussions ran parallel to politico- theoretical discourse in which mainly the ultras conti-nued to underpin their point of view in written publications. In his treatise Du ministère dans le gouvernement représentatif, for example, Vitrolles explained the mechanisms of parliamentary government by taking England as an example.290

The chamber, initially dubbed chambre introuvable by the King,291 fell out with the crown not only with regard to the appointment of the government, but also because the chamber wanted to reclaim the right of legislative initiative and insisted on the electoral law being changed to their advantage. The existing dissent between crown and chamber seemed set to become an open conflict, but was then ‘solved’ in September 1816 by the King’s decision to dissolve the Chamber of Deputies and call new elections, based on the original provisions of the Charte.292

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The elections of 1816 brought about a governmental majority in the second chamber and marked the beginning of a ‘liberal period’, in which the consolidation of the constitutional order made progress. Under the Duke of Richelieu, the French government pursued a moderate- reformist agenda directed against the ultra- royalist camp. In February 1817, a new election law was passed which granted the government increased influence in election procedures, but at the same time strengthened the urban bourgeoisie as the main electorate of the ministerial party to the disadvantage of the rural aristocracy.293 The Military Law of 1818, by which access to the army and a military career were further ‘democratised’,294 was likewise clearly directed against the aims of the ultras. After Richelieu had been replaced by the Duke of Decazes in December 1818, the politics of the government became even more liberal. Together with members of the council of state, prefects and vice- prefects associated with the ultras were dismissed, and in March 1819, a large number of liberal- minded peers were appointed to prevent a con-servative block in the first chamber.295 In April and May, the press law was liberalised,296 and a reform of public administration was tackled, aimed at modifying the existing authoritarian system.297

All these measures seemed likely to strengthen the existing political order and to increase public acceptance of the monarchy even beyond the royalist camp. The period between 1815 and 1820 saw not only achievements in foreign politics,298 but also the increasing professionalisation and parlia-mentarisation of the constitutional system à la custom. Louis took a back seat during political discussions and followed the principle of intervening only if absolutely necessary, as in September 1816, when he deemed the dissolution of the chamber essential to guarantee the functioning of the constitutional system. As ‘authority in reserve’, the King left the shaping of policies to his government, which was about to become a modern cabinet with its members deliberating and making decisions jointly, going hand in hand with a strengthening of the pouvoir ministériel.299 Moreover, the exist-ing constitutional order was increasingly seen and carried out as a ‘system of dialogue’ between government and parliament.300 The chambers used the instruments of direct control, among them the possibility to express wishes and criticism towards the government in the annual reply- addresses drafted at the opening of the parliamentary sessions by the monarch, the right of granting public expenditure,301 and the right of audit (since 1818). In addition, indirect means of control became of greater importance, especially the right to interrogate ministers.302

Under Louis XVIII, a functioning parliamentary system was established for the first time in French history. Political ‘parties’ were now considered as necessary and useful in shaping public opinion within the boundaries of the Constitution, manifest in the division of parliament into three distinct political groups, namely the indépendants on the political left, the moderate centre constitutionnel, and the ultras on the right.303

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The success of the government during the Second Restoration, to consolidate the country economically and politically, and to set up sound constitutional and parliamentary practice after dissolving the chambre introuvable in 1816 restored faith in the ability of the French monarchical system to survive both nationally and internationally. The reports of the Bavarian envoys in Paris reflect the growing confidence among foreign political observers in the ability of the monarchical system to survive. The early reports by Pictet de Rochemont, accredited in January 1816,304 were highly sceptical and painted dismal pictures of the situation in France:

There is an overall spirit of pillaging and selfishness, slander is every-where, and there are more secret denunciations every day: all individual hatreds assume the mask of Public Good in order to pass, there is no Patriotism, no public spirit; the only way in which people think of the Fatherland is in terms of its effect on themselves: in a word, this country is failing by corruption: such a State cannot last: either France will be struck from the register of nations or it will rise again after being violently shaken.305

Pictet de Rochemont regarded moral decadence and egotism as the root of evil in French politics:

What’s missing in France now is unified power, or a unified aim among the various parts of Government […] There’s no point in using words about patriotism and the love of its Kings: everyone gains advantage accord-ing to their dedication to the Government […] Since a revolution has displaced everyone, everyone has developed the hope of moving up […] This is what makes up this huge population of ambitious, restless, discontented people in France, ready to do anything to achieve something, always willing to believe that change can only be beneficial for them, and always ready to take advantage of it. Since there are usually twenty candidates for each available place, once it is assigned, there are inevitably nineteen unhappy people who hope to succeed when the system changes, vs. one satisfied man who wishes to maintain the system.306

But in view of the success of Louis’ policy and the normalisation of political and social life, assessments changed from late 1816 onwards. In March 1817, Pictet de Rochemont reported to Munich that ‘the Government’s progress in the system it has adopted, towards consolidation and repose, towards trust and credit, has been rapid and confident’. For him, France and its constitutional system had made ‘an immense advance towards stability in recent months’.307 Pictet de Rochemont’s successor in Paris, Willibald Graf von Rechberg, brother of the newly appointed foreign minister of Bavaria, came to similar conclusions and communicated in September 1817 to King Max I Joseph

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that ‘the retention and progressive development of the systems of moderation and observation in the Charter have consolidated his [Louis’; MJP] govern-ment […], and they will strengthen it more and more’. Rechberg expressed his firm belief that ‘the vast majority of the French today want the politi-cal results of the Revolution enshrined in the Charter to be maintained’. According to him, the ‘majority of the nation wants rest, but above all it wants to […] benefit from the political results of the Revolution. They demand that the Sovereign governs for this majority of the nation.’ For that reason it was essential that the French government did not leave the path of moderation and reform, but continued its policy of strengthening both the representative system and the parliamentary regime. With remarkable acumen and farsightedness, Rechberg realised that the future of the consti-tutional order basically depended on how long Louis XVIII would continue to reign and thus strengthen the system of the Charte:

So if Louis XVIII lives on for a few years, the affairs of France led by a Ministry made strong by its high moral standards and its union, will show consistency; the representative system will be consolidated; one will get used to the observation of the Charter, so much so that when Monsieur [Charles X; MJP] accedes, the structure will be too strong to be toppled.308

The alternative was grim and – from an ex- post perspective – indeed divinatory:

If the Comte d’Artois ascends to the throne before the present order of things is so firmly established that the impossibility of reversing them would be apparent to even the blind, we can expect a crisis whose outcome would not be favourable to him […] all depends on the life of the King, and the premature death of this Prince would certainly cause a new crisis for France and perhaps for Europe.309

Rechberg’s realising that the system itself was not yet completely stabilised and could still ‘backfire’ was corroborated as early as in 1820. Developments towards a ‘parliamentary government’310 suffered a setback when the Duke of Berry, son of the Comte d’Artois, was assassinated in February 1820, thus initiating a conservative turn in royal policy.311 Under pressure from reactionary circles, who blamed the murder on the tolerant policy of the government, Decazes handed in his resignation a few days after the assassi-nation and was replaced by the Duke of Richelieu again, who came to some arrangement with the ultras and initiated a number of reactionary measures. At the end of March 1820 censorship was temporarily reintroduced, justified with the ‘insufficiency of the existing means of repressing the appalling abuses of newspaper freedom’.312 In May, a drastic change to the electoral

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law was proposed, creating 172 new parliamentary seats and a double franchise for the wealthiest sector of the electorate (loi du double vote).313 This revision of the electoral law together with the government’s ‘toolkit’ of electoral manipulation – mainly put into effect by the prefects, an insti-tution left over from the Napoleonic Age – was to guarantee a long- term majority in parliament. During passionate parliamentary debates, lasting for more than a month, the indépendants cautioned against perverting the spirit of the Charte and the whole political system. Benjamin Constant, for example, outlined the dangers of political radicalism and a ‘new Jacobinism’ by drawing parallels with the Republic: ‘Fear for the monarchy, the men who claim to be more royalist than the Charter and the King. The republic was killed by the Jacobins of the republic. The Jacobins of royalty will be the ruin of royalty’.314 Four days later, La Fayette warned that the Charte, which had become firmly rooted in France, might come to harm:

Let us agree, gentlemen, that if the Charter, despite its history, its imperfections, […] has really become popular among us, it is because it was presented by its august author as a guarantee for individual freedom, freedom of the press, freedom of religion, equal rights, independence of the judiciary, the inviolability of all properties, and the promise of a representative system that would allow us to move forward with the recent recognition of our rights and the fruits of the Revolution.315

The new electoral law, he said, would destroy all such achievements and leave the door open to despotism.316

Despite harsh protest by the liberals, the new electoral law was passed at the end of June 1820.317 Agitation by the opposition outside of parlia-ment followed and led to fierce demonstrations, some of which could only be suppressed by using military force. Some secret societies even strove to overthrow the existing political system.318 The cleft between ‘old’ and ‘new’ France had opened up again and became wider in December, when Villèle, one of the leaders of the ultra- royalists, was appointed successor to Richelieu. Backed by a strong parliamentarian majority, Villèle pursued a strictly rightist policy, leading to further restrictions of the free press.319 Yet the appointment of Villèle was actually a triumph for the parliamentary regime in the country, since Richelieu’s replacement had been triggered by votes of no confidence for his government in the Chamber of Deputies, which the King did not want to counter with a dissolution of the chamber. Villèle was also prepared to observe the text of the Constitution and to respect the rules of the parliamentary system. Under these circumstances the prospects for the future of the constitutional system and the monarchy did not look too bad, particularly because Louis XVIII was a reliable guarantor for the preservation of both.320

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Louis XVIII had in fact managed to gain significant popularity in France since 1814, no matter how turbulent some years of his reign might actually have been.321 Unlike his predecessors in the eighteenth century, Louis consciously adopted the role of the state’s ‘first servant’: an enlightened, almost bourgeois monarch.322 This image is symbolically illustrated in a contemporary painting by François Gérard (1817), which shows the King in his study, dressed in a plain coat and sitting at an almost spartan desk covered with documents and writing materials.323 The picture of a king working for the good of his people, who considered himself ‘head of the French nation’, perceived as a ‘family’,324 went down well with the expectations of the time. Louis was perceived as the guardian of prosperity, peace and stability, all of which contributed to the public esteem for the King.325

Even though Louis XVIII did not initiate a personality cult, as Napoleon had done, the popularity of the monarchy was actively promoted in different ways. One tool was to heighten the ‘visibility’ or ‘presence’ of the Bourbons.326 Members of the royal family were regularly seen visiting the provinces and thereby doing their part to strengthen loyalty towards the crown out of town,327 while the King demonstrated public presence in the capital, for example at public events, such as the annual Saint- Louis festival,328 but also through regular court life. The royal residence was no longer Versailles, but Tuileries Palace in the centre of Paris and therefore closer to the people than in the Ancien Régime.329 Another tool to ‘popularise’ the monarchy was making effective use of history. Henry IV (Henri le Grand or also Henri le bon), the first Bourbon on the French throne, whose political achievement in reconciling the country after the devastating Wars of Religion and his care for the welfare of his subjects was used as an example and put on a level with Louis XVIII and the Restoration project after 1814.330 The cult surrounding le bon roi Henri expressed itself in various forms, including medals, prints, poems and plays,331 and helped to stabilise the regime.332 But the most important element of political symbolism was certainly the synthesis of King and Constitution. Given the popularity of the Charte, especially among the French middle classes,333 Louis wanted to be identified with the constitutional document, which was no difficult task, since he had not only defended the constitutional document on several occasions, but was actually its benefactor.334 The countless editions of the Charte in circulation in the country, including rhyming and illustrated versions,335 together with numerous pro- constitutional pieces of writing not only made the Constitution a public commodity, but also strengthened the image of the King as Roi législateur. With ‘constitutionalism’ and ‘royalism’ becoming identified with each other, Decazes’ ambitious strategy of royaliser la nation, nationaliser la royauté was after all far from preposterous, but actu-ally within the realms of possibility – even after 1820.336

The hope, however, that ‘the history of France will perhaps offer the first example of a restoration that has succeeded’337 was shattered in 1824.

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The death of Louis XVIII on 16 September 1824 changed the political coordinates in France. Louis’ successor, Charles X, was in many respects different from his slightly elder brother.338 The experience of the Revolution had had a formative influence on Charles and during his years in exile he had become a declared reactionary and supporter of the ultra- royalist movement. Louis had managed to keep Charles’ political influence at a low key after the restoration of the monarchy, but in September 1824 his moment had finally come. It was quite clear right from the beginning that the King, ‘a sovereign of ancient tradition’,339 around whom ‘all those gazing back to the past’340 were assembled, was not willing to take up the constitutional role of a pouvoir neutre.

Despite his promise ‘to maintain and enforce the state laws and the insti-tutions granted by the King, my brother’,341 Charles’ traditional coronation on 28 May 1825 amid much pomp and ceremony in the Cathedral of Reims deliberately harked back to the Ancien Régime.342 This emblematic event was followed by a number of reactionary and unpopular measures being intro-duced, for example declaring blasphemy a statutory offence. Particularly controversial was the government’s initiative to compensate former owners of biens nationaux, that is predominantly the church and aristocrats; an initiative which, under the slogan milliard des émigrés, became a symbol for the crown’s ‘backward’ policy. Even though not more than 25.9 million francs were actually paid as recompense for the expropriations during the Revolution,343 the compensation fuelled fears of a fundamental revision of the existing social, economic and political order.344

Charles’ contentious line provoked growing resistance even in the two chambers with their conservative majorities. Government and King suffered a first defeat in 1826 with a bill on the right of primogeniture, which was put forward to help consolidate the situation of the rural aristocracy by modifying existing regulations of the Code civil. The oppositional forces in the country, who were alarmed by gestures such as the granting of pensions for the relatives of those Swiss Guards killed during the defence of Tuileries Palace on 10 August 1792345 and the intensification of the public cult for Louis XVI as Roi martyr,346 interpreted the project as an attack on civil society and as yet another indication of the impending return to the Ancien Régime.347 In the aftermath of a fierce public campaign in the press, uncom-monly sharp and very emotional parliamentary debates followed in March and April, particularly in the Chamber of Peers.348 On 8 April 1826 the bill was rejected with a majority of 120 votes to 94,349 a decision which was greeted with enthusiastic applause in the liberal press. The crown blamed the press for the failure of its legislative project, and in late 1826 a bill was submitted to parliament, proposing higher publication charges, wider legal responsibility of publishers and printers, and the censorship of non- periodical writing. Liberals, moderates, but also conservatives considered the initiative a threat to the spirit of the Charte. The fact that Villèle was able

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to push through the bill in the second chamber despite broad resistance350 was hardly more than a Pyrrhic victory, since the first chamber refused its assent and thus forced the crown to withdraw the bill in April 1827.351

Nevertheless, Charles X was not willing to abandon the cause. On 24 June, just two days after the end of the parliamentary session, he re- established censorship of the press through a royal ordinance. This affront to parliament led to a storm of liberal protests and made an open conflict between chambers and crown during the next parliamentary session almost inevitable. As a pre- emptive measure, the King not only appointed 76 new peers to guarantee a governmental majority in the first chamber, but also dissolved the Chamber of Deputies on 5 November, hoping to receive electoral confirmation for the government’s policy as Louis XVIII had done in 1816.352 Charles X was sure of victory, not least because the government had been able to influence the elections to their advantage in the past.353 This time, however, the dissolution of the second chamber had the opposite effect. The (liberal) opposition, for the first time united in an alliance characteristically called Aide- toi et le ciel t’aidera and headed by François Pierre Guillaume Guizot, was strengthened by the elections of 1827: there were 180 villèlistes opposed by a similar number of dedicated liberals and around 70 right wingers in the new chamber.354 After having been in office for more than six years, Villèle’s government had definitely lost its parliamentary backing.

Villèle drew the obvious conclusions and handed in his resignation. It seemed that Charles, too, was prepared to accept the new majorities, when he appointed Jean Baptiste Count Martignac, a centre right politician, as Villèle’s successor at the beginning of January 1828. Martignac made concessions to the oppositional chamber and initiated a shake- up of the electoral colleges to remedy existing abuses (March), and a new press law to relax the existing censorship regulations (April).355 He was also able to wring a restriction of Jesuit activity in the country from Charles and a limit to the influence of the Church in the educational system, which was a particular bone of public con-tention.356 But right from the start, Martignac’s mediatory course was regarded with reservation by the King, who considered it an expression of weakness.357 The failure of a bill on local and departmental administration in spring 1829 was finally the pretext for replacing Martignac’s cabinet by a conservative one, which was expected to put Charles’ idea of monarchical government into action: ‘That is to say, the Charter according to the monarchy and not the monarchy according to the Charter. We need a ministry that will resist not its will, but the Chambers’ opposition.’358

Some days after the conclusion of the parliamentary session of 1829, Prince Jules de Polignac was made head of the new government: a represent-ative of the extreme right and personal friend of Charles X, whose public reputation was of the worst kind possible.359 The appointment of Polignac and other disreputable reactionaries360 was nothing short of a declaration of war on the liberal forces in the country and the majority in the chambers.

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Loud and clear protest made itself heard all over the country, particularly in the press, which campaigned not only against the new cabinet, but the King himself, too. In its edition of 10 August, for example, even the conservative Journal des Débats portrayed the division of the nation and the end of the bond between king and people:

So here again the bond of love and trust is broken that united the people with the monarch! Once again, the court with its old grudges, emigration with its prejudices, the priesthood with its hatred of liberty are throwing themselves between France and its King. What she [France; MJP] has won through forty years of work and difficulty is being taken away; that which she rejects with all the force of her will […], is being violently imposed on her. And what perfidious advice could mislead the wisdom of Charles X, and throw him into a new, disorderly career, at an age when ambient calm is the first condition of happiness? […] what have we done that leads our King to separate from us?361

In the end, however, all the efforts of the reactionaries were doomed to failure: ‘Will they destroy the Charter that has ensured Louis XVIII’s immor-tality and his successor’s power? Let them believe so! The Charter now has an authority that will crush all despotic efforts.’362

Not only the press, but basically the whole political class dissociated itself from the King. A wave of resignations from state civil servants, including declared monarchists like Chateaubriand, was symptomatic of the loss of confidence.363 The oppositional forces adopted more and more anti- royal rhetoric and became more diversified at the same time, thus cracking the traditional triad political landscape of ultras, centre and liberals. On the left, a new republican faction established itself, while on the right, the Orléanists with their newspaper Le National took tangible shape as a political group, offering a concrete alternative to the ruling house.

The showdown between crown and opposition followed in 1830. In his address on the reopening of parliament, Charles X clung steadfastly to his political line to defend the ‘holy rights’ of the crown at any cost:

Peers of France, deputies of the departments, I do not doubt your coope-ration to create the good I want to achieve; you will drive back those treacherous insinuations that malice seeks to propagate. If shameful manoeuvres were to create obstacles for my government that I do not want to anticipate, I will find the strength to overcome them in my resolution to maintain public peace, in the just confidence of the French and the love they have always shown for their kings.364

This was nothing short of a direct warning to the chambers, particularly the lower house. They for their part were willing to take up the challenge

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and hit back. In its reply address, adopted on 16 March with 221 votes to 181 (thus the common name ‘Address of the 221’),365 the chamber referred to the rules of the parliamentary regime and reminded the King that the Charte provided for the participation of the French nation in political affairs, for good reason: ‘because the permanent harmony of the your government’s political views with your people’s wishes becomes the essential condition for the smooth running of public affairs’. This crucial interaction, however, had ceased:

Sire, our loyalty, our dedication obliges us to tell you that this harmony does not exist. The fundamental opinion of the administration is now an unfair distrust of France’s reason and sentiments. Your people are distressed by this, because it wounds them; the people are worried, because it [the administration; MJP] is threatening their freedoms!366

Charles’ answer was short and clear:

I was entitled to rely on the cooperation of both Chambers to do all the good that I was devising; my heart grieves to see the deputies […] declare that, for their part, this cooperation does not exist. Gentlemen, I announced my resolutions in my opening speech of the session. These resolutions are immutable; the interest of my people forbids me to discard them. My ministers will let you know my intentions.367

On 19 March 1830, the session of the two chambers was adjourned, followed by the dissolution of the second chamber on 16 May.368 Meanwhile, the government considered the possibility of using Article 14 of the Charte to back a drastic change in the electoral and press law by royal ordinance. Charles Cottu, a government counsellor, publicly stated the need of dicta-torship (De la nécessité d’une dictature) and a government ‘coup’ to guarantee ‘harmony in all parts of government’.369 The King, however, was confident that the new elections would lead to a stable majority for his policy. He intervened personally in the election campaign and publicly proclaimed that the ‘nature of government’ would be changed for the worse ‘if unjust restrictions weaken my prerogatives’:

Voters, make haste to join your constituencies. May no reprehensible negligence deprive them of your presence! May the same feelings animate you, the same flag rally you! It is your king who asks this of you; it is a father who calls you. Fulfil your tasks; I will fulfil mine.370

But Charles’ hopes were shattered. The opposition, actively supported by the press, gathered strength in the elections, and had now almost a two- thirds majority.371 In this situation the King, actively encouraged by his government,

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took drastic measures. On 25 July 1830, ‘with little planning, military or otherwise’,372 the chamber was dissolved again, even though it had not yet convened. Two other ordinances were released the same day with reference to Article 14 of the Constitution. The first suspended the freedom of the press, the second altered the electoral census to the benefit of conservative clientele.373 The festering conflict between King and parliament had thus culminated in a coup d’état of the crown.

Charles X had cherished the hope that the July Ordinances would strengthen his authority and ring in a new era of monarchical rule in France. However, he had now lost the support even of those who had until then been loyal to the monarch.374 The developing popular revolt in Paris, spurred on still further by the poor economic situation including crop failures and soaring prices, spread and turned into a full- scale revolution.375 Starting with formal protest notes from liberal lawyers and journalists, who stressed the illegality of the ordinances and denounced the turn from legal rule to tyranny,376 the government lost control of the capital to the revolutionaries in just three days, known as the Trois Glorieuses. When the disaster of the royal troops became obvious on 29 July, Charles X sought to set people’s minds at rest by withdrawing the July Ordinances and by announcing the formation of a new cabinet under the Duke of Mortemart. But the King’s willingness to compromise to save his throne came too late.

As early as 30 July, a liberal- conservative group around the financier Jacques Laffitte, cooperating with the newly established National Guard under its distinguished leader La Fayette, offered the throne to Louis- Philippe, the Duke of Orléans. The bourgeoisie hoped to liberalise the political system but safeguard the monarchy at the same time with a dynastic change. And indeed, that same evening Louis- Philippe accepted the invitation formulated by Benjamin Constant to come to Paris and take the office of regent (lieutenant général du royaume).377 In a proclamation to the people, Louis- Philippe justified his decision with the need to prevent anarchic conditions in France, and he guaranteed the immediate summoning of the parliamentary chambers ‘to ensure the rule of law and uphold the rights of the nation’. At the same time, he made clear that there would be no funda-mental change to the political system: ‘The Charter shall henceforth be a truth.’378 In its official response the second chamber announced the official appointment of Louis- Philippe as regent and praised his role as guarantor of the Constitution. When Louis- Philippe gave his public speech late in the afternoon of 31 July, in which he swore an oath of loyalty to the nation, it was met with general approval. The victory of the Orléanist faction against its potential adversaries, including republicans and Bonapartists, could no longer be doubted.

The Orléanist promise to keep the Charte, however, did not mean there would be no changes at all. Rather a revision of the Constitution was tackled, aiming to ‘liberalise’ existing provisions and strengthen the power

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of parliament. François Guizot, the designated minister of the interior, was entrusted with this task. On 7 August, not even two weeks after the first violent clashes in Paris, the revised constitutional document was passed with 219 votes to 33 in the second chamber and 99 votes to 14 in the first, where radical right- wingers abstained from voting. Louis-Philippe’s oath and his proclamation as ‘King of the French’ on 9 August, together with the resigna-tion of Charles X, marked the formal conclusion of the regime change.379

The regime change of 1830 was certainly not a fundamental one. Not only was the monarchy as such preserved, but indeed even the wording of most provisions in the Charte.380 Nevertheless, the revision of the Constitution was ‘revolutionary’. Whereas the Charte of 1814 had been imposed by the king, who claimed to be the only holder of sovereignty and the pouvoir constituant, the revised Charte of 1830 downgraded the king to an ‘object’ of the Constitution, a pouvoir constitué. Whereas the oath of Louis XVIII in 1814 could be interpreted as a voluntary act, Louis- Philippe had to swear to preserve, protect and defend the Constitution as a prereq-uisite for his appointment as king. Thus, a revolution in monarchical rule had taken place. It transformed the former Roi de France et de Navarre to a ‘democratised’ Roi des Français,381 which was the reason for Félix Ponteil’s pathos that ‘the authoritative act of 1814 was transformed into a work of liberty’.382 The centre of power had moved from the king to the second chamber, the hub of bourgeois liberalism. Parliamentary authority had been strengthened in several respects: firstly, the right of the chambers to impeach ministers was no longer restricted to individual cases, from which one might deduce the principle of political responsibility. Secondly, the chambers received a full right of initiative in legislation, thus laying the foundations for successful parliamentarian government. Thirdly, the refor-mulation of Article 43 brought more autonomy for the second chamber insofar as, from now on, the appointment of its president was a preroga-tive of parliament itself. One particular act of emancipation was also that the right to elect the presidents of the electoral committees was transferred from the crown to the electorate (former Art. 41). To prevent the king from abandoning the constitutional path, the legal basis both for emergency and special legislation, which had been used as a justification for the release of the July Ordinances by Charles X, was restricted (Art. 14 of the old, Art. 13 of the revised Charte).383 Moreover, Catholicism was no longer the state religion (Art. 6 of the old Charte), censorship was irrevocably banned (Art. 7 of the revised Charte) and electoral law became less restrictive by lowering the voting age from 30 to 25 (Art. 34) and eligibility from 40 to 30 years of age (Art. 32).384

The historical model adopted for the regime change, either intentio nally or unintentionally, was obviously the English Glorious Revolution. As in 1688/1689, the throne becoming vacant was justified by the monarch’s continual abuse of his prerogatives. In the case of both France and England,

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parliament took advantage of a specific historical situation, namely a moment of weakness on the part of the crown, to consolidate its own position and to guarantee its rights. And in both countries, parliamentarians were anxious to disguise the dynastical rupture and to keep up appearances of continuing legitimacy. That is why Louis- Philippe was elected and why the idea of an elective monarchy was abandoned in favour of the traditional form of a hereditary monarchy.385

After hardly more than 15 years, the experiment of constitutional monarchism initiated by Louis XVIII had failed, and one might surmise that the Restoration regime had never been truly viable. Nevertheless, characterising the entreprise bourbonienne as ‘impossible’386 is misleading. It should be realised that the development towards a revolutionary constitutional change was not an irrevocable must. It had been in the hands of political protagonists to guarantee an evolutionary develop-ment of the Constitution after 1814. The July Revolution was ultimately the result of careless dealings with the existing Constitution, above all by Charles X, whose continual violations of the political and constitutional ‘culture’ finally culminated in the loss of legitimacy for the Bourbon monarchy. When the King’s claim to power failed miserably in July 1830, the bourgeois liberals saw their chance to realise their political ambitions. The July Monarchy of Louis- Philippe opened the last chapter of French monarchical rule by a ‘historically legitimised’ dynasty: another episode, which would end in the Revolution of 1848.387

But not only then, even back in 1830, France had once more taken the lead as ‘political initiator’ in Europe. The failure of the Restoration regime and the July Revolution actually served as a signal for political and consti-tutional emancipation all over Europe. The Revolution spread to Belgium, Switzerland, parts of Italy and Poland, reinforced national movements, pushed forward reform projects and lead not least to processes of constitu-tional liberalisation in several European states.388 The effects of the French constitutional revision of 1830 were most directly felt in the Southern provinces of the United Kingdom of the Netherlands, which declared the independence of Belgium from the Dutch crown. The new liberal- monarchical constitution of Belgium, proclaimed in February 1831, was based on the principle of popular sovereignty and directly inspired by the revised French Charte of 1830.389 But even the ‘classical’ English Constitution of the eighteenth century, which had remained unchanged throughout the Revolutionary and post- Napoleonic Age, did finally undergo alterations in view of the events in France, manifest in that the constitutional system was now up to accepting social and economic transformation processes. Highly symbolic in this respect was the Reform Act of 1832, which, after controversial parliamentary and social debate, introduced sweeping changes to the electoral system of Britain and aimed at linking wider parts of the middle classes to the Constitution.390

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5.4 Conclusions

The most obvious difference between Southern German and French post- Napoleonic constitutionalism is the continuity of the monarchical- constitutional systems in Bavaria and Baden beyond 1830. The July Revolution, in contrast, marked an abrupt breach with the political order of the Restoration, despite the fact that the monarchy as such and even important parts of the Constitution basically outlasted the regime change for almost two more decades. The main reason, however, why Louis’ Charte of 1814 was short- lived compared to the Verfassungs- Urkunden of Bavaria and Baden, cannot be reduced to any simple formula. Nor can the individual political developments be explained exclusively with the actual content and political guarantees of the different constitutional documents. It was more that a set of variables determined constitutional life and practice in France, Bavaria and Baden after 1814/1818.

Past experiences and the political ‘starting points’ in the three countries were different. This meant that the actual reasons behind the drawing up of a constitutional document were diverse in nature. In France, the main objective of the Charte was to provide a legally anchored compromise between ‘Revolution’ one the one side and ‘Reaction’ on the other and thus create the prerequisites for a lasting restoration of the Bourbon monarchy. In contrast, the main mission of the constitutions in the Southern German states was to serve as an ‘integration tool’, namely creating a ‘state consciousness’. Thus, these constitutions basically founded what would soon become criticised by German nationalists as ‘particularism’.

The perception of each constitutional document was different, too. In France, the Charte constitutionnelle of Louis XVIII was one in a line of constitutions and opened yet another chapter in the eventful political life of France since 1789, resulting in a more pragmatic than effusive reception of the new constitutional document, particularly at home. But even among the voices praising the Charte as a stabilising factor for the post- Napoleonic political order in Europe were some questioning whether the new Constitution and the Restoration regime as such would be able to survive at all. In contrast, the enactment of the constitutions in Bavaria and Baden met with rapturous applause all over Germany, especially among the (Bildungs)Bürgertum, since the constitutionalisation of these two countries was a beacon for all other German states. The reactions to the Southern German Verfassungen were almost unanimously positive, praised as guarantors of civil and political liberties, even heralds of a new era. After the initial excitement had abated, however, criticism set in and became more frequent, especially with regard to the Bavarian Constitution, which was clearly less innovative and progressive than the Badenese. However, even in the case of Bavaria, fundamental criticism, especially in terms of natural law, remained an exception. Rather than replacing the Verfassungs- Urkunde,

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the aim was to remedy existing deficiencies. Unlike in France, radical alternatives to the existing monarchical- constitutional system could not yet even be envisioned. Under the existing Realpolitik framework, a monarchical representative constitutional system was the only goal which at that time could possibly be envisioned. This was clearly reflected by the reactions to the Southern German constitutions from those German governments who did as yet not have a constitution, above all Austria and Prussia. Unlike other European powers, who viewed the document as a tangible sign of stability, Austria and Prussia could hardly conceal their displeasure at the two Southern German constitutions.

The actual test for all the constitutional documents was putting them into political practice and in establishing fully- functioning legislative practice and political culture. It is significant that in all three states, France, Bavaria and Baden, constitutional life began most turbulently and was characterised by squabbles as to limits of power between the executive branch and parliament, even though the reasons underlying the conflict were not exactly the same. In France, the first parliamentary session after the second Restoration (1815/1816) was marked by the unorthodox confrontation between government and reac-tionary ultras in the Chamber of Deputies. In contrast, more conventional debates between government and liberals in the second chamber dominated the proceedings at the first Landtag in Bavaria (1819) and Baden (1819/1820).

In Southern Germany, the clash between crown and second chamber was particularly passionate because of the disparity between the individual positions. As far as the crown was concerned, the enactment of the consti-tutions had been a pragmatic necessity to conclude the state- absolutistic reform and consolidation politics of the Napoleonic Age.391 Hence, the Ständeversammlung was a necessary evil, which should function as an auxiliary instrument of monarchical government. The parliamentarians, on the other hand, considered the Landtag to be a crucial element in shaping the political will of the people and an equal partner of the crown, at least in legisla-tion. Correspondingly, the crown was eager to interpret the constitutional texts in a formalistic way, while the parliamentarians referred to the ‘spirit’ of constitutional government, which in their eyes meant a separation of powers, substantial political participation and constantly ‘perfecting’ the constitutions. Conflict was pre- programmed. The fight for ‘the right of inter-pretation’ went hand in hand with substantial power struggles, especially over the budget. This clash was due to the legislative competences of the Landtag in financial affairs, being in line with the tradition of the former estates, whose prerogative had been the granting of new taxes.

In France, the main fields of conflict were – and continued to be – electoral and press law, traditional trouble spots of French constitutional life since 1789.392 Moreover, the question of ministerial responsibility gained ground. Although these issues were important in Bavaria and Baden, too, they were far more central in Bourbon France.

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After initial turbulences, parliamentary life both in France and Southern Germany entered calmer waters, but in different ways. In France, Louis XVIII made use of his prerogatives and dissolved the rebellious chamber in 1816, but did allow for a ‘parliamentary culture’ to develop and hence a modus vivendi both for the crown and the chambers. In Southern Germany, the crown reacted with coercive measures by restricting the liberals’ manoeuvring space, and by manipulating the composition of the second chamber. Election ‘rigging’, a main feature in the repertoire of governmental constitu-tional politics in France, continued to be an essential element in Southern German constitutional policy and practice, too. Yet even more drastic actions were considered by the crown: in Baden a far- reaching revision of the Constitution and in Bavaria the repeal of the whole document. In the end, such revisions did not take place due to the resolute opposition of the ‘constitutional factions’ in both governments and the incalculable risks involved, also owing to sheer power- political considerations: the Verfassungs- Urkunde was a cornerstone of Bavaria’s and Baden’s sovereignty, thus any attempt to downgrade the constitutional documents would be nothing short of an assault on the political autonomy of the two states.

Differently from Restoration France, where the domestic constitutional development was quite unaffected by foreign politics,393 in the Southern German states the Deutsche Bund remained a determining factor for constitutional politics. The role which Bundespolitik actually played in the Badenese and Bavarian Verfassungspolitik was somewhat ambivalent. On the one hand, the German Confederation was perceived as a threat to state sovereignty, leading to partially successful emancipating efforts in consti-tutional affairs which were aimed at preventing direct intervention of the federal level in the constitutions of its member states. This was particularly the case of Bavaria which, as the most influential German power after Austria and Prussia, favoured autonomous federal policy. Having said that, however, the Bund was also a welcome and powerful instrument of the authorities in Bavaria and Baden, used to steer domestic political life in the desired direction, for example by legitimising repressive measures such as restricting freedom of opinion and expression with reference to federal obligations and by codifying the monarchical principle in the Wiener Schlussakte.394

There is no doubt that the main battlefield of constitutional practice between 1814 and 1830 remained parliament, that is the bargaining and/or struggle between government and chambers, in particular the second chamber.395 Nevertheless, constitutional life was also active outside of parlia-ment and involved the people to a lesser or greater extent.396 One important element in this regard was the press. In France, the limits on freedom of expression in political writing were comparatively low, and discourse both at parliamentary and press levels were clearly distinct and mutually reinforcing. At the end of the Restoration period, the highly professionalised French press had in fact become an important political player and was even able

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to set the political agenda.397 In Bavaria, the press played a less immediate role, mainly due to the fact that freedom of the press was only partly achieved. Still, even here journalism contributed to sensitising the public to constitutional issues. In comparison, the press in Baden remained weak throughout the 1820s, but this was more than compensated for by another means of public politicisation, namely liberal suffrage. Badenese franchise was highly advanced for its time: in France, the Charte effectively restricted the involvement of the people by limiting it to the rich only; a situation later aggravated by the droit du double vote. In Baden, however, most adult men had the right to vote; a fact that propelled constitutional awareness among large parts of the Badenese population. Thus, at least Badenese constitution-alism was able to gain the status of a truly ‘popular’ phenomenon.

In France and Southern Germany the governments made an effort to promote and further the creation of a popular constitutional culture through ‘propaganda’ in the broadest sense of the word, including writing, coins, monuments or (constitutional) festivities.398 These efforts were particularly intensive in France, especially under Louis XVIII, where measures to strengthen the public standing of the Charte went hand in hand with the need to (re)gain historical legitimacy for the Bourbons, and Bavaria, where ‘constitutional’ and ‘state patriotism’ could be fruitfully linked. In Baden, this ‘synergetic effect’ was not exploited to the same degree, and govern-mental efforts to steer constitutional culture into a particular direction kept a rather low profile until the 1830s. The determining factor for the accept-ance and stabilisation of any of the constitutional orders, however, remained the public perception of the political system’s output, which differed among the political class and the population. Hence, direct links between ‘public opinion’ and elite- centred constitutional discourse in parliament or in the press are difficult to establish.

What is characteristic for post- Napoleonic constitutional life in all three cases is the central importance of action taken by individuals, and it comes as no surprise that the role of the sovereign as the ‘leading actor’ on the political stage of monarchical- constitutional systems was the most decisive. The most important policy changes in the timeframe of this enquiry were preceded by a change of monarch: in France 1824, in Bavaria 1825, and in Baden 1830. The actual role of each particular monarch differed from country to country. In general, one might say that Louis XVIII had a more pragmatic style of government than his counterparts in Southern Germany. His undoctrinary approach to politics and his will to act as a ruler not involved in day- to- day politics allowed a parliamentary regime to develop within the frame of constitutional monarchism. At the same time his approach strengthened the legitimate basis for the Bourbon Restoration, whose fragility had been proved by Napoleon’s Hundred Days. Charles X was incapable of continuing the legitimisation strategy of his older brother, Louis XVIII. As a passionate believer in unrestricted monarchical rule he

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mistook restoration for reaction and replaced consensus with confrontation. Charles’ political style was an anachronism and in the end disastrous both for the monarchical- constitutional system and his dynasty. When the latent conflict between crown and deputies grew into an open constitutional conflict in early 1830, Charles ignored the longsighted advice of Louis XVIII that ‘you, Kings, my Successors, as you seek to create the happiness of your subjects, the sole consolation for a Crown’s weight – never forget that your duty to them involves above all upholding the law and making yourself respected’399 and violated the Constitution, convinced that he was serving the ‘security of the State’.400 By breaking the imagined treaty between nation and king, thus perverting rule to despotism, Charles X had prepared his own fall and put an end to the high- risk venture to base the post- Napoleonic constitutional order on the principle of monarchical sovereignty.

In the Southern German states, with their state- absolutistic traditions, establishing monarchical- constitutional systems had been a less hazardous undertaking. The systemic need for concessions was not comparable to France, since the introduction of constitutional government itself indicated progress, and in view of this the monarchs in Bavaria and Baden had strong reservations about actual or assumed limitations of their role in politics. In both countries the cabinet system remained fragmentary, the style of government personal and paternalistic. Basically, the Southern German rulers remained more ‘enlightened despots’ than ‘constitutional monarchs’. Hopes for liberalising the political system and a new era of reform were nourished by the accession of Ludwig I to the Bavarian (1825) and Leopold I to the Badenese throne (1830).401 But the ‘liberal turn’ was only an episode, which after a few years returned to a traditional- conservative understanding of rule and government and a restrictive interpretation of the constitutional documents.

Nevertheless, even in Southern Germany autocratic forms of monarchical government were not seriously regarded as being a long- term solution. The divergence between the monarchs’ claim to power and the reality of rule became increasingly sharp, particularly, since the French July Revolution had electrified the liberal movement and strengthened its self- confidence all over Europe. The middle classes, whose social and economic ascent could not be ignored, strove for a substantial share in political participation and were ever less willing to accept monarchical and governmental claims without reservations. The level of public expectation grew to such an extent that even though there was still no appetite for republican experiments, the understanding of ‘monarchy’ was undergoing radical change. The monarch might still be accepted as ‘head of state’ and perhaps even sovereign, but he was no longer automatically accepted as ‘ruler’ and designer of state politics. Traditional forms of legitimacy had been worn out and were all but forgotten, and rational elements gained in importance. Progressively, legiti-macy of rule stood and fell with the ability of those in power to comply with

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the demands of the time. ‘Good governance’402 became a crucial criterion for the acceptance of a constitutional order and the stability of a dynasty. Professionalising the politischer Betrieb (‘business of politics’)403 seemed an obvious way of meeting these challenges; the withdrawal of the monarch from frontline politics to a back- seat role of ‘authority in reserve’ another one to reduce the vulnerability of the crown. This, however, suggested a parliamentary regime which no longer allowed the monarch to draw up the political agenda personally, or be actively involved in politics. This implied a downgrading of the monarchical principle and the road to the ‘Anglicisation’ of constitutional systems.404 Except perhaps for Louis XVIII, none of the rulers in France, Bavaria or Baden were actually prepared to make such concessions. Transforming the monarchical- constitutional systems by evolutionary means was thus not accomplished. Unlike the administration, the standard of work in the legislature remained, in many cases, ‘amateurish’, its output unsatisfactory due to the perpetual polarisa-tions between crown and chambers and the lack of tools to hand to resolve conflicts. In France, it was the July Revolution that bolstered the parlia-mentary regime lastingly by overthrowing the existing Bourbon monarchy altogether, while in Bavaria and Baden true parliamentarisation remained a desideratum beyond 1830.

In the wake of the French July Revolution, the seeming political tranquil-lity in Germany and Metternich’s hope to achieve stabilisation by means of ‘constitutional paralysis’ proved to be deceptive. Yet a policy change did not take place. Instead, the German Confederation introduced even harsher reactionary measures, both with regard to fundamental rights and the scope of constitutional government. While the Zehn Artikel of 5 July 1832 were a means to suppress the popular national and constitutional movement by further curtailing civil liberties,405 the Sechs Artikel of 28 June 1832 set out to interpret existing constitutions more rigidly than ever before and to keep parliamentary opposition in check:406 not only the right of petition of the Landtage (Art. 1) and their budgetary competences (Art. 2), but also freedom of speech in the chambers and the publication of parliamentary protocols were restricted (Art. 5). The Sechzig Artikel of 12 June 1834 further specified the reactionary measures, and underlined that ‘Art. 1. Any […] claim aimed at a separation of state power is untenable with the state law of the states united in the German Confederation and cannot be applied to any German constitution’. The Confederal governments would thus ‘in no case grant an expansion of ständische powers incompatible with sovereign rights’. If Landstände ‘Art. 2. […] in the intent of expanding their powers should prompt doubts concerning the meaning of specific points of constitutional documents, then the governments will adhere to the corres-ponding interpretation of the basic principles given above’.407 The prospect of liberalising existing constitutional systems in the German Confederation by evolutionary means now looked grimmer than ever before, and the

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gap between governmental constitutional policy and public expectations widened almost irretrievably.

Metternich’s Vormärz system was finally shattered in the Revolution of 1848, which gave vent to the widespread vexation at oppression and reforms having come to a complete standstill in the previous decades. While some of the immediate political effects of the Revolution were reversed, the reverberations were to be far- reaching. The revolutionary wave of 1848 provided the impetus for German national unification and a democratisa-tion of the German political landscape in the second half of the nineteenth century. This did not imply, though, that the concept of constitutional monarchism faded into insignificance. On the contrary: the monarchical principle, which been established for the first time in the French Charte of 1814, later taken on in the Bavarian and Badenese constitutions of 1818 and codified as the nucleus of the Bund in the Wiener Schlussakte of 1820, was to be an enduring heritage, remaining a decisive factor in German constitutional history during the nineteenth century.

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6Constitutional Monarchism: Reflections in Political Thought

As has been shown in the preceding chapters, both the enactment and the actual practice of monarchical- constitutional systems in France and the Southern German states can only be understood ‘in context’, that is as phenomena depending on and exposed to external frameworks or ‘inputs’. At the same time, the systems themselves had a considerable impact: be it in the shape of active perception, at home and abroad, or in the shape of immediate (political) ‘reactions’. The enactment of constitutions in Bavaria, Baden and Württemberg as secondary or – in the case of Baden – even tertiary powers did not have the same significance for Europe as the setting up of the Charte. In France, the actual establishing of a monarchical- constitutional system, as well as its later breakdown in 1830, was of international dimen-sions, absorbing the attention of governments and political elites all over Europe. This was particularly the case because the success or failure of the Charte was symbolic of the (in)ability to deal with and overcome the Revolution. In contrast, the constitutionalisation of the Southern German states was more a ‘regional’ than a ‘European’ event, nevertheless with far- reaching consequences for the political and intellectual development of Germany.1 The constitutionalisation of Bavaria, Baden and Württemberg was actually regarded as the dawning of a new era by the progressive forces and for that reason feared by the ruling class in many other German states, above all Austria and Prussia.

The ‘external effect’ of constitutional monarchism was particularly manifest at the level of political theory. In point of fact, the repercussions of constitu-tional monarchism and particularly the ‘monarchical principle’ in nineteenth century constitutional theory and legal philosophy cannot be interpreted as ‘static’, but have to be seen as dynamically intertwined with constitutional practice and Realpolitik. The development of constitutional practice and the understanding of the political systems created by the constitutions are inseparably connected insofar as political theories attempt to explain existing constitutions not only abstractly, but also with regard to their actual imple-mentation, hence working out both guidelines for ‘constitutional’ and criteria

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for ‘unconstitutional’ political action. At the same time, constitutional theory more or less reflects the framework in which the ‘political business’ took place and the resulting perspectives for the development of constitutional systems. Most obviously, the blend of politics and political theory is expressed in that a large number of nineteenth-century political thinkers were at the same time key players on the political stage.

This chapter does not attempt to provide an exhaustive history of politico- theoretical reflection.2 Nor can a concise overview be expected; rather, by taking a selective approach and concentrating on a few writers, some global tendencies of the politico- theoretical approach to ‘constitutional monarchism’ in the first half of the nineteenth century will be highlighted. Focus will be on three national contexts: firstly that of France, where the institutionalisation of monarchical- constitutional rule started in 1814 with the proclamation of the Charte; secondly that of Germany, where the monarchical principle was not only eagerly adopted, but remained in force longer than in any other European country; finally that of Britain, the most important international power after the Napoleonic Wars and birthplace of modern constitutionalism, whose constitutional system continued to be the benchmark of comparison for European scholars.

6.1 French perspectives

A peculiarity of ‘constitutional monarchism’ is that political and legal practice preceded the theorisation of the phenomenon. At the time the French Charte was enacted, there was no cohesive ‘theory of constitutional monarchism’ or the ‘monarchical principle’. Politico- theoretical reasoning about these concepts, however, was not long in coming, first of all in France itself, where political and legal philosophy was confronted with a fait accompli by Louis XVIII.

Parallel to the widespread circulation of pamphlets, thorough scholarly evaluations of the new constitutional system and its underlying paradigms were published soon after the proclamation of the Charte. Extreme positions on the fringes of the political spectrum, that is of republicans and ultra- reactionaries, do not need to be dealt with here, since they either challenged the existence of any monarchy or every form of constitutional government and thus negated one of the two substrata of ‘constitutional monarchism’. More attention must be given to those thinkers who did not condemn the new system wholesale but provided a critical analysis of its meaning and prospects for development, both in the conservative and liberal camp. Two of their most outstanding exponents, who were also active figures of French political life in the Restoration period (the one as cabinet member and diplomat, the other as parliamentarian), are taken into closer conside ration to elucidate the differences, but also the similarities between conservative and

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liberal perceptions of constitutional monarchism in France: Chateaubriand and Constant.

As early as 1814, Chateaubriand attacked certain rightists such as de Maistre, who accused the Bourbon Restoration of being the continuation of the Revolution and demanded the return to pre- revolutionary conditions.3 Chateaubriand argued that the reinstatement of the Ancien Régime was out of the question and the Charte a necessary tribute to the spirit of the times. Chateaubriand repeated this viewpoint in his Rapport sur l’état de la France, fait au roi dans son conseil à Gand (May 1815),4 refining it one year later to a detailed analysis of the Constitutional Charter and the first sophisticated theory of monarchical- constitutional rule in his highly regarded work De la monarchie selon la Charte.5 Based on the introductory assessment that neither the old regime, nor despotism could be a solid foundation for a legitimate monarchy, but only the Charte,6 Chateaubriand outlined the concept of a Monarchie représentative, basically consisting of four elements: ‘the Royalty or the royal Prerogative, the Chamber of Peers, the Chamber of Deputies, the Ministry’.7 The king was the fundamental principle in this system, its heart and soul:

In his will and his actions, he is accountable only to God. He is the head or external bishop of the Gallican Church. He is the father of all individual families, linking them to himself through public education. He alone rejects or sanctions the law: all law thus emanates from him, he is thus sovereign legislator. He is even above the law, for he alone has the right of pardon and can speak above the law. He alone appoints and dismisses ministers as he wishes, without opposition, without control: all administration thus derives from him, and he is thus the supreme leader. The army marches only on his orders. He alone makes peace and war. If he withdraws the royal hand, everything stops. If he extends it, everything works. He is so complete unto himself, that without the king, there is nothing.8

In many respects, ‘[t]he king, in this monarchy, is more absolute than his ancestors ever were’.9 According to Chateaubriand, however, the preemi-nent role of the crown did not imply that the king was actively involved in policy- making and day- to- day politics. On the contrary, his role as the heart of the system required his withdrawal from the political frontline and his leaving the actual ‘work’ to his ministers:

The doctrine of constitutional royal prerogative is: that nothing proceeds directly from the king in the acts of government; that everything is the work of the ministry, even those things be done in the name of the king and with his signature, bills, ordinances, nominations. The king, in a representative monarchy, is a divinity beyond the reach of anything;

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inviolable and sacred, he is also infallible; for if there is an error, this error is the minister’s and not the king’s. Thus one can examine everything without infringing on the royal majesty, for everything stems from a responsible minister.10

The idea of a ‘representative monarchy’ not only required a responsible government acting in strict accordance with the (constitutional) law, but also that chambers be allowed to play an active role in the political system. For that reason Chateaubriand argued for strong parliamentarian preroga-tives, in particular the expansion of the chambers’ right of legal initiatives11 and effective instruments for checking governmental activities. All in all, the message of Chateaubriand’s work was ambiguous and bore the sign of compromise: on the one hand, he did not allow for any downshifting of the préeminence monarchique, but on the other he deemed the establishment of a parliamentary regime unavoidable. Chateaubriand did definitely not have English parliamentarism and particularly not complete political respon-sibility of the ministers in mind, but he was aware that unison between government and chambers was a matter of raison d’État. Crown rule against a parliamentary majority was impractical and dangerous to the stability of the political order, especially since ‘it is public opinion that is the source and principle of the ministry, principium et fons’.12 New ministers had to be appointed in line with the majorities in parliament. Chateaubriand had no doubt that the success of a monarchy in accordance with these guiding principles was guaranteed:

The representative monarchy may be imperfect, but it has undeniable advantages. Is there war beyond, agitation within? Representative monarchy becomes a kind of dictatorship by the suspension of certain laws. Is a chamber seditious? It is checked by the other, or dissolved by the king. Does the passage of time place a prince who is an enemy to public liberty on the throne? The chambers prevent the invasion of tyranny […] Every man finds his natural place in this kind of government.13

In point of fact, Chateaubriand’s explanations were indeed far- sighted in evaluating both the potential and the risks of monarchical- constitutional systems. This was impressively demonstrated by actual constitutional practice over the next 15 years. The publication of Chateaubriand’s treatise De la monarchie selon la Charte, which unmistakably demanded that a parlia-mentary regime be established, was untimely for the crown, since it was at the same time as the King’s quarrels with the ultras. However, it was exactly this idea of parliamentarisation which Louis XVIII took to heart after the chambre introuvable was dissolved, and notwithstanding the fact that the personal relations between the King and Chateaubriand had cooled off: the latter’s work can almost be read as a ‘script’ and ‘stage directions’ for the

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constitutional politics of Louis after 1816. In contrast, the later crisis of the Bourbon monarchy under Charles X in the run- up to the July Revolution was a practical exercise in what Chateaubriand had plainly warned of: that to rule against a majority in the chambers in the long term was not only impractical, but jeopardised the whole system, particularly if the king left himself open to political attacks.

While Chateaubriand was the leading proponent of contemporary French (moderate) conservatism, Benjamin Constant was perhaps the most distin-guished liberal thinker of the time.14 Despite their ideological differences and the personal animosity between them, the disparity in their politico- theoretical reasoning about the Charte and monarchical government in general was less than one might expect.

The Restoration of the Bourbon monarchy and the setting up of the Charte basically marked the beginning of Constant’s constitutional writing,15 determined throughout the forthcoming years by fitting existing political powers into a constitutional system, thus providing for stability and justice. Constant was not explicitly hostile towards the new French Constitution of 1814 and/or the Bourbon regime. For him, the Charte was rather a handy device to demonstrate what a liberal constitution should be like. Moreover, Constant was of the opinion that, provided a constitutional text met certain minimum requirements, it was possible to fill the text with a liberal spirit. It is under this premise that not only his constitutional theory, but also his parliamentary activities during the Restoration have to be interpreted. Constant had no doubt that the political system of the Charte had indeed the potential to be converted into liberal constitutionalism, mainly because he was sure that a constitutional state with a monarchical head was a much better guarantee of political liberty than a republic: ‘liberty can exist fully and entirely under a constitutional monarchy’.16 Even though the constitu-tional document was certainly not perfect in his eyes, the only reasonable thing was to accept Louis’ gift of relatively generous political guarantees for the time being: ‘The goal is that the Charter not be weakened, that the rights of citizens not be compromised.’17 Only if the liberal forces took the Charte as a solid foundation and positioned themselves as its defenders, would they themselves be acceptable for the monarch as the ruling party and thus maintain the chance of a peaceful long- term transformation.18 The model he had as his objective for this transformation was clear: the English constitu-tional system in the interpretation of its main Whig theorist John Locke.19

Thus proceeding from the premise that a constitutional state had to be rooted in a balanced separation of powers, Constant considered it his primary task to define the role which the monarch was to play in political life. For Constant, the idea of the divine right of kings was a poste ruiné,20 not so much because it had to be renounced in favour of abstract philo-sophical or moral reasoning, but because it was a highly unreliable and fallacious source of monarchical legitimacy. In his eyes, there was no chance

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whatsoever that some kind of ‘virgin confidence’ of the nation in its rulers, on which political thinkers like de Maistre and Bonald based their political concepts, could be possibly regained, even if it had existed before. For the same reason Constant renounced the key tenet of the Charte, that all state authority would lie in the king’s hands, declaring it to be anachronistic and conflicting with modern society. This claim may have been an expression of power- political pragmatism, but it had no realistic future. As Constant said, in the modern age the monarch could no longer be the master of a state, but only its constituted head: ‘In our century, every political corporation needs to be linked to constitutional and set prerogatives.’21 That did not imply, though, that the crown was to be ‘rationalised’ and ‘downgraded’ to one of a number of institutions. On the contrary, Constant was convinced that dignity and respect towards the monarch were essential for a constitutional monarchy. It was against the background of this conviction that Constant developed his doctrine of the monarch as a pouvoir neutre, perhaps his most important achievement as a political thinker.22

According to this doctrine, there were not only three, but actually four powers in a constitutional monarchy: ‘royal power, executive power, representative power, judiciary power.’23 Of central importance was the royal power, ‘surrounded by traditions and memories, and coated with the power of opinion, which serves as the base of its political power’, perceived as the political authority presiding over the others and guaranteeing order and liberty: ‘The true interest of this King is by no means that one of the powers overturns the other, but that all depend on one another, agree and act in concert.’24 Due to his role as neutral ‘arbitrator’, the monarch had to abandon the realm of practical politics and leave executive power to the government. In this respect, the resemblances with Chateaubriand’s ideas expressed in The Monarchy according to the Charter are striking: resemblances which were not pure chance, but a result of similar sober assessment of the extent of constitutional possibility in a country that had undergone dramatic change in the previous three decades and experienced republicanism and liberty as well as political terror and despotism. In both cases the crown was basically depoliticised and becoming more of a transcendent factor, in both cases the government was upgraded to a political force to be reckoned with, with its own authority, and in both cases establishing a parliamentary regime was favoured.

This does not mean, though, that the motives for redefining royal power were the same. For Chateaubriand, the government had to be established as an independent power in order to serve as a strong ‘buffer’ between king and parliament and to preserve royal prerogatives. For Constant, it was vital that the monarch be a pouvoir neutre to prevent a political system from turning into arbitrary rule. ‘The vice of almost all constitutions’, Constant declared in his Principes de politique of 1815, ‘has been to have failed to create a neutral power, but to have placed the total authority that should be invested

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in it in one of the active powers’.25 For Chateaubriand the withdrawal of the monarch from daily politics was a matter of pragmatism, for Constant it was an absolute must of modern constitutional government.

Particularly in Constant’s theory, the ‘monarchical principle’ assumed quite another meaning than had been intended in the Charte and especially in Beugnot’s preamble. The king was no longer the ultimate source from which other political powers received their legitimacy, but was only a judi-ciary authority among other powers;26 nor was the king the unchallenged holder of all state sovereignty any longer. Constant did not explicitly reject the idea that sovereignty could lie in the hands of the monarch, nor did he answer this question in the affirmative. Instead, he avoided any definite commitment and tried to sidestep the issue by declaring that ‘liberty’ was the regulative principle in political life and ‘justice’ the true sovereign in a body politic.27 The absoluteness of the principle of ‘monarchical sover-eignty’ was called into question, unlike in the works of Chateaubriand, who had never doubted the fact that sovereignty was inseparably bound with the person of the monarch.

Constant’s constitutional theory did have weaknesses, particularly regard-ing his concept of ‘royal power’ as a fourth and ‘neutral’ power separated from the executive body, in Constant’s eyes ‘the key to any political organisation’.28 One of those weaknesses was that the separation of pouvoir exécutif and pouvoir royal was of a somewhat random and unrealistic nature, especially under the circumstances of the time, when the appointment of ministers remained a prerogative of the monarch.29 Moreover, the whole concept of a ‘neutral power’ was based on idealistic premises. To believe that the king was a ‘neutral and intermediary authority, with no interest […] in disturbing the equilibrium, but rather having every interest in maintaining it’30 was too optimistic and overlooked both human nature and the inherent rules of politics, later to be demonstrated by Charles X.

Be that as it may, Constant’s political theory received both attention and approval in France, above all among liberals. Jean Denis Lanjuinais, for example, basically recapitulated Constant’s paradigm of the pouvoir neutre in 1819 when he declared the crown to be an ‘moderating, mediating, directing authority’.31 Even moderate conservatives developed a taste for Constant’s constitutional concepts.32 This was not least due to the obvious parallels between Constant’s and Chateaubriand’s theories in defining the crown more of an ‘authority in reserve’ than an active political player. This idea stemmed from the common desire, after the negative experience of the Revolutionary Age, for the guarantee that all political powers would be united for the common good of the nation and that a long- lasting political system be set up. Beyond French borders, too, Constant’s and Chateaubriand’s theories were soon taken note of, sometimes even with direct consequences on constitutions, as in the case of the Portuguese Constitutional Charter of 1826, in which the king was officially declared the ‘moderating power’

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between the other political powers (Art. 72).33 Also in Vormä rz- Germany, these two French political thinkers received quite a lot of attention, as studies on the reception of Benjamin Constant and Chateaubriand have demonstrated.34 Their constitutional doctrines, however, met with a politi-cal and intellectual situation different from that of France. For that reason the practical impact of French political theory and philosophy on German politico- theoretical discourse remained limited: a discourse, which did indeed take quite a singular turn in the post- Napoleonic Age.

6.2 German perspectives

All in all, constitutional law theory in France after 1814 had a clear ‘liberal drift’ towards full acceptance of the doctrine of a separation of powers and the idea of the monarch as a pouvoir neutre. In contrast, German discourse was more conservative in tone, characterised by the fundamental dismissal of Gewaltenteilung and an emphasis on the unity of state power (Einheit der Staatsgewalt), which was to be guaranteed at all cost. Reflecting both historical traditions and the political reality in the post- Napoleonic Age, the two points of reference were: a strong state on the one hand, comprehensive monarchical power on the other. It was in this context that the monarchisches Prinzip became a key moment of the German Staatsrechtslehre after 1814. However, the idea that the monarch was the only holder of sovereignty and that all state power was concentrated in his person did not remain entirely uncon-tested, particularly, because the traditional dualism: prince versus estates, which had been a distinctive feature of the Holy Roman Empire, continued to play a central role in post- Napoleonic political and constitutional thought. Attempts to reconcile the diverging positions, such as Hegel’s doctrine of the ‘Sovereignty of the State’, arguing for a comprehensive understanding of sovereignty, were not destined to succeed.35 Therefore, the ‘intellectual processing’ of the monarchical principle and the struggle over the scope of the princes’ ultimate authority and to what extent the people should be involved in the political process remained characteristic features of German politico- theoretical debate.36

Unlike in France, intensive politico- theoretical reasoning about ‘consti-tutional monarchism’ in Germany was not triggered by the proclamation of the Charte, but the enactment of the Southern German constitutions, albeit with a delay of several years. What became formative for the charac-ter of politico- theoretical discourse were the actual political reactions to the Southern German constitutions at the federal level.

The establishment of constitutional governments in Southern Germany in 1818/1819 was a clear sign for the German political landscape. Unlike most foreign countries, including Russia, where the Southern German constitutions were regarded as autonomous and legitimate acts of sovereign states and as a means to strengthen the antirevolutionary Holy Alliance,37

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the German great powers did not take a similarly favourable view. In their eyes, the new representative constitutions were less a step towards stabilis-ing Germany than the seed of an epidemic which would sweep across and ‘infect’ the entire German Confederation and steer it in a contra direction. Even though the Austrian and Prussian authorities did not go so far as to call the Southern German constitutions, and above all that of Baden, ‘republican’, as did several reactionaries of the time,38 there was a shared feeling in Vienna and Berlin that counter measures had to be taken. This conviction grew stronger during and after the turbulent beginnings of consti-tutional life in Bavaria and Baden. What seemed even more important than ‘curtailing the imminent threat of political liberalism’39 through repression and the establishing of a central authority against revolutionary activities in Mainz (Zentralkommission zur Untersuchung hochverräterischer Umtriebe) was the formal condemnation of representative systems in Germany. In Metternich’s view, the most effective way to do this was to have a binding ‘conservative’ definition of Article 13 of the German Federal Act accepted. To this effect, Friedrich von Gentz’s concise memorandum Ueber den Unterschied zwischen den landständischen und Repräsentativverfassungen, writ-ten on behalf of Metternich for the ministerial conference in Karlsbad was more than explicit: Gentz tried to reason the superiority of landständische over representative constitutions and underlined the reprehensibility of the latter.40 This memorandum was basically the first clear politico- theoretical react ion to constitutional monarchism in Southern Germany: a study directed against this ‘newfangled’ regime type to prevent its swamping the entire nation.

Gentz defined landständische constitutions as those, in which ‘representa-tives of corporate bodies [either] exercise a right of participation in state legislation in general, or [the right of] co- deliberation, consent, opposition within specific branches thereof’. He claimed that ‘so long as there is [sic!] a German history and language, the term ‘landständische constitution’ could never have another meaning, and therefore no other could be intended in Article 13 of the German Federal Act’. Compared to them, representative constitutions were:

those, in which persons designated for direct participation in legislation and for direct participation in the most important matters of state administration are not called upon to represent the equity and interests of individual estates […], but the entire people.41

Gentz argued that while landständische constitutions were founded on the natural basis of a well- organised civil society, in which ‘ständische relations and ständische rights, emanating from the particular status of the classes and corporations on which they are based, and modified by law in the course of time, exist without curtailing the main sovereign rights’, representative

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constitutions were ‘ultimately based on the misguided notion of a supreme sovereignty of the people and necessarily return to this notion, no matter how carefully it may be concealed’. For that reason representative constitu-tions had the:

abiding tendency to substitute the phantom of so called ‘popular freedom’ (that is general caprice) for civil order and [relations of] subor-dination, and the insanity of general equality of rights – or, what is really no better, general equality before the law – for the inviolate social and legal distinctions given by God.42

The origins of both landständische and representative constitutions were quite different. While the former arose out of the ‘primordial elements of the state’ and underwent a steady process of perfection, representa-tive constitutions were nothing else but ‘the fruit of external power’, if triggered by revolution, or of sheer ‘arbitrariness’, if proclaimed ‘out of a wrong motive of reason of state’.43 There was no doubt that the censure of ‘arbitrary’ constitutions was taking a dig at the Southern German states, even though they were not explicitly mentioned. According to Gentz, it made no substantial difference whether such constitutions resulted from the monarch’s own authority (constitution octroyée) or assumed the form of a ‘treaty’ between monarch and people:

In the latter case, in which the ridiculous principle of the highest sovereignty of the people is directly and expressly acknowledged, the constitution itself is already dead before it is born, since this principle cannot be reconciled [to any constitution]; in the former case, it may seem to be alive for a while because, as long as the old rule exists in some form, the memory of its former glory and the shadow of the old order of things are more or less working against the advance of the dis-integrating forces.44

Basically, however, ‘the main flaw of arbitrariness is adherent to the one […] no less than to the other, and the primordially blemished legal title of the constitutional legislator can neither be hidden nor improved upon by [any] fictitious consensus of the people’.45 For Gentz, the main flaw of representa-tive systems was that monarchical power by necessity lost its supremacy and became restricted:

In representative constitutions it is not only the legislative power which appears to be split into different […] parts, but it is also the unity of state administration […] which is being torn apart and fractured that it is often difficult to determine who actually rules in such constitutions. In the theory of the representative system, the alleged principle of the

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separation of powers is central; a principle which if left to its own devices, must always and everywhere lead to the complete destruction of all power, thus pure anarchy.46

Unavoidable attributes of representative constitutions were, among others, the dual responsibility of ministers both towards the monarch and the people’s representatives, the public nature of the parliamentary sessions, unlimited freedom of the press, and an unrestricted right of petition: ‘it does not take much acuteness of mind to grasp the incompatibility of such institutions with the prime principles of a monarchical form of govern-ment’.47 These and similar shortcomings of representative constitutions were unknown in landständische systems. For that reason, Gentz concluded in no uncertain terms:

In Gemany’s present situation, landständische constitutions […] can never contradict the basic conditions […] of the German Confederation. In such constitutions […] the territorial prince does not cease to be the highest legislator or head of the entire state administration.48

In actual fact, landständische constitutions were the only conceivable alternative for the German Confederation, since ‘the incompatibility of the representative system in individual federal states with the obligations and rights of the German Federal Diet is obvious’.49

During and after the ministerial conference in Karlsbad, Metternich did not tire of outlining the dangers of ‘democratic constitutions’ and under-lining that it was of the utmost importance that the Bundesversammlung proceed to a:

thorough […] interpretation and explanation of Article 13 of the German Federal Act derived not from general theories or foreign models, but from German notions, German law and German history, entirely appropriate to the preservation of the monarchical principle, which Germany cannot go unpunished for if it abandons it, and the preservation of the Confederacy as the only pillar of its independence and peace.50

In the end, Metternich was unable to push through all his demands, especially the one to make landständische Verfassungen the only acceptable form of constitution in Germany. This failure was particularly due to the persistent resistance of Bavaria and Württemberg at the ministerial confer-ences in Vienna. His efforts were, however, not completely in vain and he did achieve a degree of success: even though the Wiener Schlussakte of 15 May 182051 acknowledged the existing constitutions in Germany in their current form and thus guarded representative systems in Southern Germany against direct interventions from the federal side,52 a clear limit to the lib-

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eralisation of constitutionalism was introduced. Article 13 of the German Federal Act was restrictively specified (Art. 53–61 of the Schlussakte), particu-larly by institutionalising the monarchical principle as the core of ‘German constitutionalism’ (Art 57)53 and hence subordinating future constitutional developments of member states to the surveillance of the Bund.54 If it was impossible to rescind constitutionalisation processes, they should at least be heading in one particular direction.

With the far- reaching provisions of the Schlussakte,55 the content for future politico- theoretical debate on constitutional monarchism and the monarchical principle in Germany were set. The first noteworthy study of the young ‘constitutional science’,56 and which more or less succumbed to the dictates of the federal Realpolitik, was Johann Christoph Freiherr von Aretin’s Staatsrecht der konstitutionellen Monarchie of 1824,57 in which the author tried to integrate the monarchical principle as a stabilising element in his theory of constitutional monarchy. Even in this work the basic char-acteristics of future German discourse were anticipated, manifest especially in the strict rejection of the idea of a separation of powers:

Power cannot be divided, since power means Will linked with Might. Neither of these two elements can be absent if power is to exist. Montesquieu himself says that power is the universal will of the state. But there can only be one universal will […] Thus, there is only one State power, which is undivided, not held in check by another power, but can be restricted in the same way as an ocean is not held in check by another ocean but restricted by the shore.58

For Aretin, there was no doubt that in order to guarantee the unlimited authority of the state, monarchical power had to be entrusted with the full plenitudo potestatis, provided that ‘the rule of law is maintained, safety and freedom of the people secured’.59 In this context Aretin also shows respect for the constitutional system of the French Charte, in which ‘monarchical interest’ was predominant.60 However, he left no doubt that in his view the new German constitutions were better in terms of quality than the French Constitutional Charter of 1814, since ‘the German Constitutional Acts (unlike the French one) have assigned all governmental rights to the territo-rial princes, thus […] achieving the necessary unity and at the same time doing justice to the theory’.61 Not least in indicating, at least implicitly, the specificity and superiority of the German development, Aretin’s Staatsrecht pointed the way for the future debate, too.62

From the early 1830s onwards, in view of events such as the July Revolution and British parliamentary reform, there was not, as one might expect, in unison a liberal shift among German political thinkers, rather there was a growing conviction that there was a specific ‘German constitutiona-lism’ which was neither comparable to France nor England, but ‘original’

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and ‘true’. While the changing international environment accelerated the ‘nationalisation’ of German constitutional theory, the domestic polarisation of both political practice and thought after 1830 favoured the diversifica-tion of the Staatsrechtslehre both to the right and left. Significantly, however, most authors shared the common view that debate did not revolve around fundamental constitutional alternatives, but around how monarchical government and the monarchical principle had to be interpreted.63 Among the many theorists of the day, two are particularly worthy of note and merit closer consideration, since they represent the outposts of the German politico- theoretical reasoning about constitutional monarchism in the first half of the nineteenth century and lay out new perspectives, even though in different directions: Friedrich Julius Stahl and Robert von Mohl. The former managed to lastingly unite conservative and constitutional thought. In pushing the concept of ‘German constitutionalism’ to monarchical extremes, he made radical rightwing approaches, as (re)presented by patri-monial theorists such as Karl Ludwig von Haller,64 seem obsolete. Mohl, on his part, helped to widen the perspective of German constitutional theory to the ‘left’ by offering a pragmatic solution to the dualism- dilemma (monarch vs. parliament) without having to sacrifice the principle of monarchical sovereignty, namely by means of a parliamentary system.

What is surprising are the shortcomings in defining the ‘monarchical principle’ and developing a cohesive and really applicable theory in the first three decades of the Vormärz, if one takes the key role of the paradigm into account, which became increasingly recognised as the distinguishing feature of the deutschrechtliche konstitutionelle Monarchie (‘ German- law constitutional monarchy’).65 In fact, it was only in 1845 that Friedrich Julius Stahl helped put an end to the vagueness of the definition by providing a systematic study on the topic with his book Das monarchische Princip,66 which, despite its brevity, marked a leap in conservative state thinking.67 Stahl saw his work as contributing to the debate about a Prussian Constitution and thus as a piece of writing with a clear political function. Unlike many of his fellow conservatives, he had no doubt that monarchical rule and popular repre-sentation were not only compatible, but that constitutional- representative government was the only reasonable alternative, since ‘involvement of the nation in the design and guarantee of public law by well- arranged […] representation’ was ‘a goal towards which modern state- building is driven out of intrinsic necessity’. But while Stahl pleaded for representative ele-ments to be strengthened, he underlined the fact that the ‘political system of the West’ had to be avoided at all costs:

popular sovereignty, separation of state power, a republic in the guise of a monarchy, rule of chambers attended by corruption, the aggregate of […] mere numerical popular representation. Should this system befall our Fatherland, it would be a misfortune infinitely worse than the nation

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being allowed a smaller role in directing the state and [worse than] the excessive expansion of bureaucracy.68

Stahl went on to explain that the exact opposite of the ‘monarchical principle’ was the ‘parliamentary principle’, characterised by the ‘predominant role of parliament compared to the king, as has developed in England and in those constitutions based on popular sovereignty is naturally being striven towards not to a lesser but greater degree’. The parliamentary principle made parliament ‘the decisive power for the public state of affairs’.69 Such a situa-tion was both intolerable and dangerous.

Stahl appreciated that the Charte of 1814 was the first modern representa-tive constitution not based on the ‘parliamentary principle’, as the English Constitution, but emphasising that all public order sprang from the king, who personified all state authority. However, Stahl argued that the provision, ‘that all public order emanates from the king and that the king unites all state power in his person’, which had been adopted in German constitutions, was merely an expression of monarchical sovereignty, but not of the monarchical principle.70 According to Stahl, the widespread equating of monarchical sovereignty with the monarchical principle was misleading. Sovereignty was purely a legal term, which, as he elaborated in later editions of his Philosophie des Rechts, was inherent in every monarch: ‘a king, who is not [a] sovereign, is an absurdity.’71 In contrast, the monarchical principle went far beyond that, had a practical dimension and expressed ‘that royal power, according to the law, is […] above the representation of the people, and that the prince actually remains the focal point of the constitution, the positive driving force in the state, the leader of development’. Both phenomena were distinct and independent of each other:

In England there is the sovereignty of the king juxtaposed to popular sovereignty and the separation of powers, but [there is] not the monar-chical principle. The reverse was the case in the German territories at the time of the Reichsverband where the princes had no sovereign power […]; but there was the monarchical principle, because the prince was the anchor- point of the constitution and the Stände had no share in sovereign power.72

In a political system committed to the monarchical principle, the right of the monarch to rule at his own discretion was not restricted. According to Stahl, the following elements were distinctive for the principle: 1) the monarch controlled not only the execution of laws, but all administration, and was hence entitled to issue regulations and decrees; 2) he alone had the right of initiative in legislation, the representative body only a right of petition; 3) the budgetary competences of the chambers had to be restricted; a full right of veto was unacceptable, since such a prerogative ‘calls the

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government itself into question , […][and] forces the prince to comply with the Stände everywhere’.73 Above all, the monarchical principle demanded that 4) ‘the prince has the right and power to reign himself’. That implied that ministers could never be politically, but only juridically responsible: ‘Here ministerial responsibility serves only the purpose of constitutionality, not as in England the purposes of parliamentary government.’74 In the event of diverging interpretations of the constitution or a constitutional conflict, ‘preserving the prestige of the monarch must, according to the monarchical principle, be the overriding principle’.75 For Stahl, only the monarch had the ultimate right to interpret the law, as he was the father of the constitution, both in the figurative and literal sense:

Setting up a constitution by a […] popular representation, as if there had never been a constitution and no authority before, is one of the most radical expressions of the principle of popular sovereignty. Even agreeing on the constitution in a way that it is discussed with the existing Stände like any law and is subject to their amendment is inadmissible according to the monarchical principle.76

Stahl concluded that the monarchical principle was ‘the foundation stone of German state law and German state wisdom’,77 not only, because it was ‘legally justified’, but was also ‘politically desirable’:

For apart from the confusion looming […] everywhere from its curtail-ment [i.e. that of the monarchical principle; MJP], in Germany there is the additional factor that due to the haphazard fragmentation and conglomeration of the territory into states, which have no […] historical Gemeinschaft, the anchor- point of the constitution and the spirit of government must reside in the prince and not in the Ständeversammlung, if […] unity and cohesion, and if outward power is to be preserved.78

In contrast, the parliamentary principle was unsuitable and implied the ‘abdication of the Crown’.79 Whoever demanded it was, therefore, essentially demanding a republic,80 either with or without monarchical attachment. Stahl claimed that the monarchical principle was the right and just alternative under normal circumstances.81

Under the immediate impact of the 1848 Revolution, Stahl further elucidated upon his plea for the monarchical principle in Die Revolution und die constitutionelle Monarchie, in which he carefully separated ‘true’ and ‘false’ constitutionalism and spoke out against ‘radical’ and ‘liberal’ constitutionalism.82 According to ‘radical’ constitutionalism, ‘the essence of a constitutional monarchy [lies] in putting the ideas of popular sover-eignty into practice completely and consistently’. This paradigm had been taken to the extreme by the French Constitution of 1789/1791 and its later

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imitations in Spain and Italy, which were both ‘products’ and ‘expressions’ of the Revolution.83 Unlike the ‘constitutionalism in the spirit of the 1789 Revolution’, the backbone of ‘liberal constitutionalism’ was to cling to an unrestricted royal veto, bicameralism, the power of the king to appoint, adjourn and dissolve the representative body, and the absolute unaccounta-bility of the monarch. Nevertheless, ‘in this system too, true kingship and thus also true constitutional monarchy [have been] forfeit, yes, even any tenable state constitution’.84 Since the characteristic feature of a constitutional monarchy according to the principles of liberal constitutionalism was ‘parliamentary government’, one had to wonder about how ‘monarchical’ such a system basically was:

Who rules here, the king, to whom the ministers are not beholden, or the representation of the people, to which they are? The king, who is unable to assert his will, or the representatives of the people, who can […]? And is it still a monarchy in which the representation of the people rules and not the king?85

The essence of constitutional monarchy ‘according to its true meaning’ was something quite different to liberal constitutionalism:

[I]t consists, as the word itself suggests, in the legal and homogenous order of all public affairs, its preservation by the decisive voice of the state representation, the appropriate use of which is secured by ministerial impeachment, and consists in the moral influence of the popular will even on the rights pertaining to the king alone ([declaring] war and peace, appointing ministers, etc.), which [moral influence; MJP] however does not exclude an independent strong will of the king in their applica-tion, but does in fact presuppose it.86

‘Constitutional Verfassung’ and ‘parliamentary government’ were not one and the same thing: while the former was ‘Europe’s veritable model’, the latter was ‘a peculiarity of England, which is emulated elsewhere in vain or to gross disadvantage’.87 Therefore, it was crucial for Europe, and Germany in particular, to safeguard the ‘true monarchy’:

A true monarchy can only be [one] in which the prince always has inde-pendent power, no matter how limited, [one] in which his personage and personal Will play a [significant] role in the public order [of things]. Accordingly, the prince, despite, yes even because of the constitution and by virtue of the constitution, would have to be in a free, living, personal relationship with the people and the constitution. He would have to have a true veto […] which he employs as a free agent according to his conscience, the use and wrong use of which is not determined by the

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same majority in the chamber against whom he might want to use it. It would have to be, within the limits of royal prerogative, word and deed for the entire constitution to be a reality and not imaginary.88

In his political writings, Stahl not only assailed revolutionary constitu-tionalism, but also repudiated the British system, in which parliament was the controlling power, and French constitutional theory in its demand for ‘neutral’ monarchs, as both would gravitate towards parliamentarism. As an alternative, he outlined another idea of constitutional monarchy, based on the ‘monarchical principle’, which for Stahl was the nucleus of modern and independent ‘German constitutionalism’. For him, ‘the failed project of the Restoration to merge constitutional Verfassung and monarchical principle’ was ‘not proof that it was not possible’ – particularly so, because the Restoration project had failed due to structural cross- purposes.89 Stahl was convinced that historical and legal tradition provided all the necessary prerequisites for a successful blend of both in Germany, thus setting the stage for a ‘true’ political system:

May the party of popular rule and that of the king flourish into a higher vision of the state as the moral- intellectual Reich, in which […] moral authority, which is the king, and the people themselves as a moral community accept their necessary and limited role!90

Just one year after Das monarchische Princip, Robert von Mohl confirmed Stahl’s typological differentiation between the constitutional systems of Great Britain, France and Germany in his article Ueber die verschiedene Auffassung des repräsentativen Systemes in England, Frankreich und Deutschland.91 As Stahl, Mohl came to the conclusion that only a representative system had the potential for the constitutionalisation of the German states or, perhaps, a future German nation state, and that blocking the entire politi-cal system with continual confrontation between monarch and parliament had to be avoided. However, the solution which Mohl presented went in exactly the opposite direction: while Stahl considered a highly politicised monarch entrusted with encompassing power to be the ‘natural’ solution for the immanent dualism in constitutional monarchism, Mohl argued for the ‘creation of ministries based on the majorities of the chambers, and the consequent setting up of people’s rights and the administration according to the highest principles of the constitution’,92 that is parliamentarisation.

In his treatise Das Repräsentativsystem, seine Mängel und die Heilmittel, published for the first time in the Deutsche Vierteljahres- Schrift 1852,93 Mohl went into more detail on the need for a parliamentary form of govern-ment and the role the monarch would play in it. Mohl’s central message was that the existing conflict- ridden practice of the constitutional system in Germany was doomed to failure, since it suffered from fundamental

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deficiencies and also harmed monarchical authority. According to Mohl, there were in principle two separate powers in a (monarchical) constitu-tional monarchy: ‘the prince who holds state power; the representatives of the people with the right of appeal and […] involvement in certain tasks of government’. Hence, there was ‘undeniably a dualism’.94 Since a complete and lasting union of the two powers could not be expected, this dualism was potentially detrimental to the state and had to be remedied if the constitution was to serve its purpose and have its subjects reconcile themselves to the political order. To overcome the gaping chasm between government and representation of the people there were only two possible alternatives: ‘Corruption or parliamentary govern ment. Anything else are just possibilities or botched up repairs, if not empty phrases.’95 Mohl agreed that ‘corruption’, meaning all political tools guaran teeing submissive parlia-mentary majorities,96 was certainly a tempting alternative for government and crown since unrestricted authority in state affairs would not have to be abandoned. Nevertheless, no statesman could seriously be advised to make use of such methods to reach an artificial agreement between govern-ment and representation of the people, as both the ‘material and ethical disadvantages’ were incalculable. In the ‘material’ respect, winning over and manipulating individual representatives or whole electoral wards was nothing short of a ‘tub of the Danaides’, expensive, and only produced a load of useless civil servants. The ‘ethical’ consequences would be even worse: not only would the reputation of the administration and the government be severely tarnished, but also ‘one of the chief advantages to be gained from a representative constitution would not only be thwarted but horribly reversed’. The common people would regard corruption as theft of their legitimate rights. Without understanding the political need for the unity of state authority, citizens saw just one thing:

[T]hat the government uses every means [at its disposal] to prevent them from electing those men they regard as their friends, who promise to bravely defend all rights and gain great advantages and that in contrast, such men are forced upon them who are loyal to the government, agreeing to everything [the government] does and wants to do. The masses see that those representatives who they either justly or unjustly accuse of betraying them […] are rewarded and pampered, while the few opponents who are elected despite all counterefforts by the government are persecuted and despised.97

The results were ‘complete distrust of all intentions of the government, aversion to the same’ and ‘hatred of its agents’. A system of corruption, Mohl concluded, secured ‘the unity of the state powers at the cost of the animosity and dissatisfaction of the majority of the people, all too often [at the price of] hatred and contempt of the government itself’.98 The whole political

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system was hence contaminated from the roots up, with fatal consequences for the state and the ruler.99 A much more promising alternative would be to overcome the dualism between government and parliament by establishing a parliamentary system, which Mohl deemed an easy task:

[the setting up of such a system; MJP] simply entails composing a ministry each time based on the majority of the representation of the people, namely with the leaders of the same. Naturally, these men then conduct business according to their political party, and thus complete consensus is established between the government and the representative body in all essential matters. There may be opposition; however, it is in the minority and thus unable to thwart the running of government. When at some stage the majority changes, either as a result of elections or because some previous supporters have become dissatisfied with government policies, the ministry will be dismissed and another one formed in the spirit and from the core of the new majority.100

In order to take the wind out of potential critics’ sails, Mohl underlined the fact that installing a parliamentary system did not require a revision of the constitution: ‘[it] is not legally laid down as a directive, but is merely a practice based on the insight of its main benefits; it is not a constitutional paragraph, but a system of government.’ Nor did the parliamentary system imply any change in the legal status of the monarch or his prerogatives:

Not only do all personal rights concerning the majesty of the head of state, his role as head of his House, financial circumstances of any kind, remain completely untouched, but the constitutional rights of govern-ment will also remain unchanged. Here too, the prince is the holder of state power, his consent is required for any act of government, particu-larly legislation; he appoints and dismisses civil servants as stipulated by the provisions of the law. The personification of the state abroad remains unchanged.

According to Mohl, a formal systemic change would not take place at all, and the ‘monarchical principle’ would effectively be preserved. The only prerequisite of the parliamentary ‘system of government’ was that the monarch waived his claim to ‘making’ politics solely as he fancied and showed consideration for the party with the majority:

[It] is a prerequisite that the prince regards the governing of administra-tion in accordance with the respective majority of the representation of the people as a political necessity, and [that he] thus not only elects his official advisers accordingly, but also governs and is governed by their views wholeheartedly and without reservation.101

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Such abstention from actively steering politics, however, would be of immense advantage for the princes in that they could not be blamed for the failures of their governments. Respect for monarchical power would grow and, insofar, parliamentary government would not mean weakening, but ‘protecting the role and power of the princes’.102

Closely following Chateaubriand’s thoughts on monarchical- constitutional rule, Mohl demonstrated the virtual incompatibility of a representative system and monarchical power in everyday politics. Unlike Chateaubriand in 1816, whose politico- theoretical reasoning about constitutional monar-chism had primarily been based on suppositions as to the future potential and risks of the Charte, Mohl was able to establish his analysis on more than three decades of practical constitutional experience. Not only could the fall of Charles X in 1830 be taken as a warning example, but one could also cite the highly conflicting constitutional practice in the Southern German states since 1818/1819, which had temporarily almost paralysed political life there, as proof of evidence for the need of parliamentarisation. Both in France, be it during the Restoration or also later under the July Monarchy, and (Southern) Germany the shortcomings of ‘corruption’ as a tool to overcome the dualism between monarch and parliament had been clearly demonstrated: it might be possible to manipulate individual elections in favour of the government, such as in 1824 in France or 1825 in Baden, but this was not a lasting solution and even less a guarantee for the stability of the system. In his work published in 1852, Mohl was also able to look back on and refer to the Revolution of 1848 as a drastic example of what could be expected in the event of misguided constitutional politics.

Based on such historical examples, Mohl questioned Stahl’s clear distinc-tion between the monarchical and the parliamentary principle and argued that the former could only be safeguarded by the implementation of the latter. Mohl wanted to show that the existing monarchical- constitutional systems in Germany could be enhanced through constitutional practice, namely by effectively combining monarchy and a parliamentary form of government. That did not imply that he had a long- term transformation into democratic structures in mind. On the contrary, Mohl conceived ‘parliamentarisation from above’ as a crucial means of thwarting incalculable democratisation processes and the ultima ratio in safeguarding monarchical sovereignty and Einheit der Staatsgewalt.103 The central point of Mohl’s argu-mentation was that the dynamics of political and social change demanded a degree of flexibility in adapting constitutional monarchism and making it fit for the future.

In this respect, Mohl certainly stood out from most of his fellow contemporaries, who like Stahl clung to a rather static understanding of monarchical rule. However, despite the analytical strength of his constitu-tional thought, Mohl did not succeed in making entirely plausible how the intended ‘organic transformation’ was to be achieved in practice, or how

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the existing bureaucratic- administrative political systems could be converted into monarchical- parliamentary ones. Moreover, he did not mention how the de- politicisation of the princes should actually take place, and how a functioning system of political parties would be instituted.104 Mohl’s perspective of a ‘parliamentary turn’ in monarchical- constitutional systems thus remained an isolated approach with little effect on German politico- theoretical discourse.105

In the second half of the nineteenth century, the situation seemed to be somewhat paradoxical: one might easily gain the impression that constitu-tional practice in Germany was slowly turning towards the ‘parliamentary regime’ outlined by Mohl, and that it was not entirely out of the question that in the long term even the transition to a parliamentary monarchy would succeed, illustrated by, for example, that parliaments in various German states achieved full legislative initiative and extended budgetary rights. On the other hand, German constitutional theory showed no real progressive tendencies, but continued to confine itself to conservative para-digms.106 Upon closer examination, however, this contradiction proves to be less dramatic. It is certainly true that in the wake of the Revolution of 1848 certain liberalisation and also democratisation tendencies, manifest for example in the gradual expansion of franchise, took place, which was clear evidence that German governments were indeed striving for a more harmonious political life than during the Vormärz.107 Nevertheless, not only did the monarchical- constitutional system as such remain quasi untouched, but also the supremacy of the monarch in everyday politics. A true ‘parliamentarisation’ process did not take place. In point of fact, monarchical power even (re)gained in strength both in political and moral terms in the second half of the nineteenth century, especially in the course of the Wars of German Unification. In this context, the German Staatsrechtslehre sought once more to acquiesce to political realities. Even in the first half of the century, German political thought had quite obligingly surrendered to reactionary- conservative framework conditions; in the second half, its characteristic feature became the preservation of the status quo: a conservative- liberal constitutional compromise, which might have more ‘liberal’ elements than during the Vormärz, but in which the conservative element was still unchallenged. At the same time politico- theoretical efforts were stepped up to argue the singularity of German constitutionalism. In 1911 Otto Hintze did not need to fear much in the way of opposition when he summed up the state of German discourse on constitutional monar-chism as follows:

Monarchical constitutionalism is […] a metamorphosis of old enlight-ened absolutism. Particularly when compared to England, it does not appear as an imperfect stage in the development of constitutionalism, but as a constitutional form sui generis actually based on the furthering of

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absolutism, which evolved by grafting constitutional institutions onto the monarchical rootstock and which has a completely different historically political background than the parliamentary system.108

6.3 British perspectives

In Germany, the monarchical principle did, indeed, become the key feature of constitutional theory in the post- Napoleonic Age; in France, reasoning about how monarchical power and constitutional government could be effectively intertwined remained at least a formidable part of French intellectual life until 1830 and 1848 respectively;109 in contrast, the politico- theoretical implications of ‘constitutional monarchism’ were minor in post-1814 Britain. This cannot be explained by a general decline in domestic writing on the constitutional question in the nineteenth century, which was on the contrary on the increase. Such disregard was due more to the fact that British debate tended to revolve almost exclusively around its own constitutional system, which was perceived as a ‘masterpiece of political organisation’ and enjoyed prestige of seemingly mythic proportions: the ‘English Constitution’ stood at the very heart of political life and was a rallying point for both popular patriotism and national identity, giving parties their identity and politics its defining issues.110

The fact that Britain emerged unscathed from the revolutionary wave of 1789 and survived those of 1830 and 1848 meant that paeans on the existing constitutional framework and the insularity from foreign discourse were intensified rather than diminished. Basically, the ‘European’ politico- theoretical debate on monarchical sovereignty and forms of government predominantly centred around the person of the monarch met either with disinterest or reservation. The understanding of ‘constitution’ as the volun-tary limitation of monarchical power, in itself unlimited, did not fit into the English idea of constitutional government, and it would have been essentially heretical to claim, as many continental politicians and thinkers did, that ‘there must […] exist a political power, which, by its nature and by its more intimate connection with the principle of its formation, preserves a real preponderance over the other powers of the state’.111

For the British, constitutional monarchism was not a real alternative, particularly since it reminded them of their own constitutional struggles and clashes in the seventeenth century. The dualism between monarchical and parliamentary power so characteristic of monarchical- constitutional systems seemed to have been effectively overcome a long time before, and the political agenda now revolved around other questions, such as the democratisation of electoral law.112 Accordingly, it comes as no surprise that one will not find any genuine British politico- theoretical contributions to the discussion on ‘constitutional monarchism’ in nineteenth- century writing. British intellectual points of view on the subject were limited almost

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exclusively in commentating on foreign politico- theoretical discourse. The most influential British magazines of the time, that is the Edinburgh Review, mouthpiece of the Whig party, and the Quarterly Review, supporting the Tories, reflect not only the predominant attitude towards continental constitutional theory and practice, but also the variations in liberal and conservative understanding. Typically, these ideologically- driven varia-tions concentrate on the perception of the Bourbon Restoration regime and French constitutional theory in particular.

Shortly after the publication of Chateaubriand’s The Monarchy according to the Charter, for example, the Quarterly Review published a detailed review, written by John Wilson Croker, which extolled the work. Croker not only eulogised Chateaubriand’s emphasis on loyalty to the Charte as a crucial prerequisite for the stabilisation of France, but also the well- balanced mix of strong, even though de- politicised, monarchical authority, responsible government and parliamentary rights: ‘[it is] the most temperate, the most just, the most liberal, the most constitutional, the most ably and heartily favourable to the strict maintenance of the Charte, the rights and liberties of France, of any publication we have yet had the good fortune to see’.113 In many respects, Croker recognised and appreciated the ‘principles of the British system of government’ in Chateaubriand’s writing, albeit he was convinced that its full implementation in France could only take place in the long term, since ‘that which suits England in her present state may not be exactly the properest regimen [sic!] for France in hers’.114

Unlike the Tories, the Whigs took a far less positive view of both the Charte and Chateaubriand’s politico- theoretical work. The basic claim of constitutional monarchism, namely that the preponderant power of the monarch, by virtue of the monarchical principle, was inherent in the crown alone, was for the Whigs not only a contradiction in terms in their understanding of the English Constitution, but basically inappropriate and dangerous for establishing any just and durable constitutional form of government, no matter where. According to the Whigs’ interpretation, history was the universal and indeed inevitable progression towards ever greater liberty and enlightenment, culminating in modern forms of liberal democracy and constitutional monarchy. This tendency could be clearly seen in the articles, letters and editorials in the Edinburgh Review on France during the Restoration. There was a common feeling, though, that ‘the restoration of the Bourbons seems the natural and only certain end of that series of revolutionary movements, and that long and disastrous experi-ment which has so awfully overshadowed the freedom and happiness of the world’.115 But if the new regime was to last, it had to be arranged as a ‘limited monarchy’, for which the Senatorial Constitution seemed to be a reasonable legal basis.116 Under these prerequisites the Charte of 1814 was regarded as being an imperfect constitution, especially because of its explicit predilection for monarchical power.117 Even Chateaubriand’s

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politico- theoretical efforts to limit the political role of the sovereign were not considered to be a satisfactory approach to solving the problem as long as the ‘monarchical principle’ and the dichotomy between ‘popular’ and ‘monarchical sovereignty’, both of which were equally reprehensible for Whigs, were not abandoned:

M. de Chateaubriand […] allows two principles of all social order, ‘the sovereignty of the monarch in monarchies, and the sovereignty of the people in republics.’ Now, if by ‘the sovereignty of the monarch’ be meant, the sole, exclusive, and unlimited authority of the King, it is clear, that he excludes all limited monarchies from his enumeration, and indeed allows the existence of no government but Despotism and Democracy, and no means of amending civil institutions, but such as depend on the caprice of a single tyrant, or the passions of a tyrannical multitude. What is most pertinent to our purpose is, that, in spite of all his vain distinctions, he in truth displays the monarchical principle in all its horrors; for he still maintains, that no absolute monarchy can be reformed, otherwise than by the spontaneous act of the monarch.118

The aspired evolutionary conversion of the Restoration regime to a parliamentary system did not take place, particularly due to the failed policy of Charles X. Thus, in the logic of ‘Whig history’119 it was basically not before 1830 that France, then by revolutionary means, was ‘transformed into a real constitutional monarchy, and transferred, in the balance of political principles, from the side of the allies of Laybach, to the side of Great Britain and its reformed Parliament’.120

Unlike French theoretical discourse on the scope and character of consti-tutional monarchism, which was at least touched upon in passing, the German Staatsrechtslehre, focusing on the Einheit der Staatsgewalt, was hardly discussed at all. This was not only because of the distinct self- centred nature of British political thought and the particular role France played in Britain’s perceptions of ‘Europe’ as compared to other nations;121 it was also due to the fact that the German approach to constitutional government seemed even more anachronistic against the background of the situation in Britain than the French theory on the subject, which at least implied a ‘perspective of development’. Particularly after the July Revolution and that of 1848, with parliamentarisation tendencies visible throughout Europe, but Germany basically persisting in inertia and sticking to the monarchisches Prinzip, ‘developments in Germany and German discourse fell by the wayside’.122

6.4 Conclusions

Establishing monarchical- constitutional systems in France and Southern Germany in the post- Napoleonic era did leave their mark on the political

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theory of the times. This was particularly the case in the German- speaking world, where the political repercussions triggered by the constitutionalisation of the Southern German states and especially federal policy had drastic though slightly delayed effects on politico- theoretical discourse. At the ministerial conferences in Vienna 1820, far- reaching plans which would have called into question modern representative constitutions whole-sale in favour of an (alt)ständische constitutional model were thwarted, but it was unmistakably stipulated that ‘die gesammte Staats- Gewalt in dem Oberhaupte des Staats vereinigt bleiben [muß], und der Souverain durch die […] Verfassung nur in der Ausübung bestimmter Rechte an die Mitwirkung der Stände gebunden werden [kann]’ (Art. 57 of the Wiener Schlussakte), that is that the absolute constitutional and political precedence of monarchical power could not be downgraded in any way whatsoever. Thus, a tight framework for Germany’s constitutional future was traced out, and the German Staatsrechtslehre was prepared to submit itself to these guidelines.

Falling in line with the path set by politics and adopting the paradigm of the ‘monarchical principle’ as the nucleus of ‘German constitutionalism’ was even easier since stressing the monolithic character of state and govern-ment corresponded with growing German nationalism. By the 1840s, the idea of a specifically German constitutional system based on the irrefutable concept of the ‘monarchical principle’ had been expressly put together by Friedrich Julius Stahl. The other side of the coin, however, was that a long- term perspective for developing constitutional monarchism and adapting it to the needs of the time was missing both in politics and theory. The idea that a parliamentarisation of the systems might have a stabilising effect on the political system was hardly pursued. Thinkers like Robert von Mohl, who tried to argue that continuing dualism between monarchical and parlia-mentary power was highly detrimental to the whole political system and could only be overcome by establishing a parliamentary regime, remained on the fringe of German constitutional theory. This was despite the ample experience gained from German and French constitutional practice during the Vormärz period, the bipolar and conflict- ridden character of which had demonstrated both the imminent dangers for monarchical- constitutional systems in the event of permanent ‘personal government’ of the monarch and the shortcomings of ‘corruption’ as a means of creating parliamentary majorities. Even after the Revolution of 1848, no fundamental change took place. Rather, legitimising the status quo including the monarchical principle became characteristic for the German Staatsrechtslehre until the First World War.123

The static German understanding of constitutional monarchism and the disapproval of parliamentarisation stood in sharp contrast to French politico- theoretical discourse on the subject. There, the opinion that governments

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needed to be created according to parliamentary majorities and that monarchical supremacy implied uncoupling the crown from politics rather than being directly involved in it was not only the liberal consensus, but also found some support from conservatives. Authors with differing ideological backgrounds such as Constant and Chateaubriand principally came to the same conclusion: personal monarchical government did perhaps pose the greatest threat to the stability of the constitutional monarchy in France. Such a regime made the person of the monarch vulnerable and was likely to irretrievably tarnish his royal authority and dignity. Whether the monarch should become a true pouvoir neutre and arbitrator between other political powers only, as Constant suggested, or whether he should only step back from the political stage, as Chateaubriand had in mind, was not quite decided. But unlike in Germany, ‘constitutional autocracy’ definitely had no future in France – neither in theory, nor in practice. This was not only demonstrated by the rule of Louis XVIII, whose cautious style of ruling gave parliament leeway and allowed the political system to develop along the path sketched out in political theory, but is even more clearly demonstrated by the rule of Charles X, who in 1830 failed miserably in his goal to ‘re-personalise’ rule by pushing his constitutional rights to the extreme.

If an autocratic understanding of constitutional government could not be successfully propelled in France, then it was even less likely to reach any significant importance in Britain. Britain as the world’s dominant power after the Napoleonic Age demonstrated that political perception and politico- theoretical reception were not per se mutually conditional. The attention Britain paid to the constitutionalisation of France, less so (Southern) Germany, substantial though it was, did not reflect the role the concept of ‘constitutional monarchism’ and the ‘monarchical principle’ played in domestic constitutional thought, which was negligible. While these concepts were considered in British foreign policy as promising, or at least acceptable, tools to pacify continental Europe, such concepts had no appeal to the British for their own constitutional system. In fact, the English Constitution had long since passed its ‘teething problems’ phase and with it the problems so characteristic for constitutional monarchism. Now the country faced new challenges quite different from those in France or Germany. To claim that the monarch was the sole holder of state sovereignty 125 years after the Glorious Revolution was an absurd notion;124 even more absurd was the idea that all state authority was concentrated in the person of the monarch. There was shared belief in the country that Britain was ahead of its time and that continental Europe had to catch up with the political and constitutional standards they had set. In such an understanding, constitutional monarchism was merely a step between ancient absolutism and modern, ‘true constitutionalism’: that is, a concept with a clear expiry date.

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However, was that indeed the case? This assessment of the period takes us on to the more general question of whether constitutional monarchism had long- term potential at all, or whether it was indeed just a stopgap at one specific historical moment. This question will be taken up in the concluding chapter of this enquiry, which will summarise the main findings and evalu-ate them in a broader historical and methodological context.

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7Results

Referring back to our subject of enquiry and the working hypotheses put forward in the introduction, the main results of this study will be presented from three angles:

1. prerequisites and driving forces for post- Napoleonic constitutionalism, particularly ‘constitutional monarchism’, and the innovative potential of the Charte;

2. the actual role of the Charte for the constitutionalisation processes in Bavaria and Baden compared to other role models, that is the question of transfer and reception, and the way in which constitutional practice is comparable; and finally,

3. potential long- term repercussions of constitutional monarchism within the context of European history.

To begin, let us examine the prerequisites and driving forces for post- Napoleonic ‘constitutional monarchism’ and the role of the French Charte of 1814.

The Constitutional Charter of 1814 and the concept of constitutional monarchism can be seen as a product of the major shift in political thinking on a suitable state order; a shift which had been forging ahead since the seventeenth century under the influence of enlightened philosophy. In the course of this rethinking process, ‘constitution’ and ‘constitutionalism’ became ideologically charged key terms in European political language. It was particularly the development of the English political system and the establishment of a parliamentary constitutional order in the aftermath of the Glorious Revolution which sparked pan- European constitutional dis-course. The English constitutional system served as an inspiration for political theories stressing the need for balance and separation of powers, such as Montesquieu’s The Spirit of the Laws. To the extent that traditional patterns of rule, especially monocratic rule based on the concept of the divine right of kings, snowballed into crisis, new concepts of legitimising

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and organising political rule gradually gained acceptance, particularly that of popular sovereignty and republicanism. In the second half of the eighteenth century, these concepts were carried to the extreme in the American and French Revolution, in the course of which constitution(alism) became ‘popu-larised’: on the one hand through the democratisation of the political sphere triggered by the release of new constitutions, and on the other through constitution(alism) becoming a crucial element of public debate and a secular-ised system of belief, acting as an objective that could be pursued or repudiated. Revolutionary constitutionalism provoked counter concepts, which basically indicated the birth of modern conservatism. Expressed moderately, as in Burke’s political theory, or in a radical- reactionary way, as in the political writings of Bonald or de Maistre, these counter concepts criticised the a- historical nature of revolutionary constitutionalism. It was not innovation but tradition, and not republicanism but monarchism which was being propagated. The main message was that protecting the ‘classical monarchy’ was not an end in itself, but an act of historical reasoning and necessity.

Considering such divergence in opinion on how a body politic might be ‘constituted’, the challenges for post- revolutionary politics became all the more difficult. The collapse of the Napoleonic order in 1814 certainly symbolised a victory over revolutionary principles, but at the same time there was no doubt that it was impossible to put the clock back and negate the her-itage of the Revolutionary and the Napoleonic Age. But could monarchical claims for personal government be realistically reconciled with the legacy of the Revolution? This dilemma did in fact give immediate rise to the concept of a genuinely ‘monarchical’ form of constitutionalism: initially in France, where the need to come to terms with the revolutionary past was acute.

Wise enough to realise that ‘the restoration of the ancient line can mean any thing [sic!] else but the restoration of the ancient constitution of the monarchy’,1 in spring 1814 Louis XVIII reinstated the Bourbon dynasty with no intention of going back to the Ancien Régime. He withstood the temptation to restore the monarchy with all its previous powers. Instead, the new Constitution, set up under Louis’ personal direction, incorporated the legal achievements of the previous decades and established a modern representative system involving the French nation in the political process. In this respect, the Charte included many of the liberal aspirations laid down in the Senatorial Constitution, which had been intended as the legal grounds for the restoration of the Bourbon Monarchy. At the same time, however, the Charter was based on a completely different ideology, namely on the doctrine that the pouvoir constituant and all state authority actually resided in the person of the king, thus, at least theoretically, rejecting a separation of powers. This implicit affirmation of the ‘monarchical principle’ was the quasi demarcation by which the new Constitution was clearly distinguish-able not only from its revolutionary predecessors, but from the English constitutional monarchy as well.

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The obvious contradiction in terms between constitutional government and the monarchical claim for undivided power was neatly solved by distin-guishing between ius and exercitium, that is the abstraction that political power was monopolised by the crown, but its execution in part left to other subordinate constitutional institutions. While the provisions of the new Constitution were nothing short of a full concession to the existing political and legal realities, at least in argumentative terms, the monarch was able to keep up the appearances of constitutionalism as an act of voluntary grace and as an uncontested variation of monarchical rule. In line with this logic, it was, therefore, natural that the constitutional fathers avoided using the revolutionary connoted term ‘Constitution’. Instead, they sought an alternative and finally agreed upon Charte, thus stressing both awareness of tradition and the fact that the new order was not a mere continuation of exist-ing constitutional documents, but was basically a phenomenon sui generis.

Against the background of this emancipation effort, the term ‘consti-tutional monarchism’ does at first sight seem to squeeze two seemingly contradictory concepts together; but a second look reveals it is exactly this seeming contradiction which is the soul of the système Charte. The Constitutional Charter was created out of a necessary compromise between ‘old’ and ‘new’ France, and for that reason it ultimately served as a potential means to overcome the political fragmentation of post- Napoleonic France. Its characterisation as ‘a considerable regression’2 when compared to former constitutions is therefore not appropriate. What is true is that the Charte does mark a clear backward step when considered from the point of view of democratisation – especially regarding the actual number of those who received the franchise – when compared with the constitutions drawn up during the Revolution and also with the draft of the Senate. Yet taken as a whole and given the contemporary political challenges, the Charte was in some aspects more ‘in balance’ and ‘viable’ than its predecessors. Critics might object that the new constitutional system was unable to entirely satisfy any particular political group in France, but it is exactly this imparti-ality which can also be considered to be its explicit advantage. One strength of the Charte was that in combining a representative constitution with the monarchical principle, attacks from both liberals and conservatives could be countered. In reply to the latter it was possible to reason that revolution would not be fostered, since power fundamentally remained in the hands of the king; in reply to the liberals it could be argued that they would be bestowed all the rights and guarantees which could reasonably be demanded; anything more was simply not compatible with the idea of ‘monarchy’, which ensured stability and peace.

Thus, the first working hypothesis that constitutional monarchism as put into practice by the French Charte was a genuine innovation, representing a fragile but appropriate response to the demands of the post- Napoleonic Age, can basically be corroborated. However, this is with the important proviso

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that ‘innovation’ should not and must not be seen as an ‘unprecedented novelty’, but a sagacious re- shuffling of existing doctrines and institutions: natural and positive law, ‘revolutionary’ and ‘classical’ constitutionalism, liberalism and conservatism, parliamentarism and monarchism, represen-tative government and monarchical sovereignty, civil rights and royal prerogatives.

Which role would Charte- constitutionalism, shaped and developed under its own unique ‘French’ conditions, be likely to play beyond the borders of France, especially in (Southern) Germany? This leads us to the question as to the intellectual and practical conditions for constitutionalisation in the German states, the impact of the Charte for this process in Bavaria and Baden compared with other potential models, processes of transfer and reception, and in how far we can compare constitutional practice in these two states with France.

When considering general constitutional discourse in Germany around 1814, one can observe that interest among the middle-class(es) in constitutional matters had been gradually growing since the second half of the eighteenth century. The Befreiungskriege in particular had had a catalytic effect, since after the victory over Napoleon Verfassung was on everyone’s lips. Conflict over ‘constitution’ and ‘non-constitution’ became the distinguishing hallmark of Vormä rz- Germany. Most contemporaries were aware that constitutionalism was not an issue specific to Germany, but that all over Europe the Zeitgeist of the period begged some kind of ‘harmony’ between monarchical power and the widespread push for freedom and liberty:

Since […] the social order in all realms and states of Western Europe is, with minor variations, basically the same, they are all facing the same task. One might certainly argue as to the nature of this task; but what always really matters is to harmonise princely power and liberty in such a way that they are no longer in conflict.3

However, one would be wrong in presuming that awareness of the ‘interna-tional’ nature of the constitutional question implied any kind of ‘pan-European’ discourse, or an unbiased approach to foreign constitutional alternatives. Despite the intensity of intellectual debate in Germany, the perception of foreign political and constitutional ‘models’ – the number of which had sharply increased since the late eighteenth century – was characterised by a lack of information, selectivity and widespread scepticism. Many non- German constitutional documents available at the time were more- or- less disregarded in public debate. This holds true for the constitutions of the Nordic countries (the Swedish Constitution of 1809, the Norwegian Constitution of 1814), the United Netherlands (1814/1815) and Poland (1815), but also, with certain reservations, for the Spanish Cádiz Constitution of 1812 and the United States Constitution of 1787. The German Bürgertum’s

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interest in foreign constitutional systems was predominantly focused on two countries: France and Great Britain.

Public interest in these two nations was considerable, but knowledge could not by any means be regarded as comprehensive,4 and the way these two systems were perceived was anything but unanimously positive. French revolutionary constitutionalism based on popular sovereignty met with open hostility and was regarded as a negative counterpoint to the understanding of a ‘good’ and ‘balanced’ constitution. In point of fact, the Constitution of 1791 and even more so the constitutional documents of 1793 and 1795 as well as the Napoleonic Constitutions of 1799, 1802 and 1804 could be taken as classic examples of ‘negative reception’. French revolutionary constitu-tionalism was a ‘handy’ enemy concept not only because Germany lacked the experience of revolutionary turning- points and sudden new beginnings of state order, but also since antipathy against the Revolution could be conveniently combined with general anti- French resentments nurtured by the experience of the Napoleonic Wars: ‘If one asks […] what general opinion agrees upon unconditionally and unanimously: it is hate and contempt of France.’5 Rejection was common among both conservatives and liberals. Many of the latter certainly accepted a number of the funda-mental principles of the (French) Revolution, such as the limited monarchy, a written constitution, the abolition of feudal privileges and guarantees of civil rights. However, more often than not, liberals disclaimed any association whatsoever with the Revolution and rarely would they come out wholly in favour of revolutionary constitutionalism. In contrast, the English Constitution enjoyed a good reputation among most political camps in Germany. However, while some liberals deemed Britain’s consti-tutional system a worthy model for the constitutionalisation of Germany, most contemporaries, especially conservatives, argued that its ‘home-grown’ nature made it non- transferable. Not least, the British parliamentary sys-tem was considered to be incompatible with German historical traditions, particularly strong executive power.

Against this background, Charte- constitutionalism seemed to present a more favourable model, since it actually incorporated many worthwhile elements of the English Constitution, for example bicameralism, yet preserved monarchical sovereignty. Still, enthusiasm for the French Charter among the German intelligentsia remained subdued. There were favour-able comments on the constitutional text and recognition that the Charte was a useful means for pacifying the country under the restored Bourbon monarchy and was probably the best constitution France had manufactured so far. However, any unreserved acknowledgement of the Charter as a model for Germany was foredoomed to failure simply on account of its French origin and widespread Francophobia among most intellectuals of the time.

On the whole, it can be said that public constitutional discourse in Germany after 1814 continued to be self- referential,6 aggravated by the fact

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that contact between intellectuals beyond state and especially language borders remained the exception rather than the rule. Symptomatic of German discourse is the almost omnipresent reference to landständische Verfassung. Without much agreement as to what landständische Verfassung actually meant and what it was characterised by, without even a clear understanding of the distinction between representative and landständische constitutions, the term seemed to reflect ‘home-grown’ traditions and, at least in theory, suggested that there was a chance of following an independent path of con-stitutionalisation. This implicit scepticism against foreign influences was in keeping with the awakening spirit of German nationalism.

Public constitutional discourse, however, was just one side of the coin; practical politics the other. At this level, after Napoleon’s fall, the chances of establishing constitutions were better than ever before. This was due not only to growing public desire for a constitutional government, but also because practical needs such as growing debt demanded political action and conces-sions. Unlike the German intelligentsia, there was little emotionally based reservation against foreign influences among the German rulers, particularly in the Southern states. Pragmatic considerations of securing and stabilising political power were central, and thus the chances were accordingly better that the French Charte would serve as a model in the constitutionalisation processes which got under way in the Southern German states of Bavaria and Baden after mid-1814. One could even go so far as to argue that the specific personal interests of the former Rheinbund- princes made the Charte the only conceivable model for maintaining the principle of monarchical sovereignty, and it was therefore not necessary to look further afield for any other ‘exemplary’ constitutions.

Indeed, confronted with a similar heritage from the Napoleonic Age and similar challenges including financial consolidation, territorial and social integration, and the safeguarding of state sovereignty, both Baden and Bavaria started constitutional deliberations shortly after the enactment of the French Charte in the run- up to the Congress of Vienna. Both consti-tutionalisation processes came to an end in 1818 and shared a number of characteristics: for example the fact that a commission composed of govern-ment officials was entrusted with drawing up the constitutional document both in Bavaria and Baden; that the membership of these commissions altered between 1814 and 1818, and that their activities were interrupted several times; that various drafts were taken into consideration during the constitutionalisation process; that the final constitutional document was essentially the work of two individuals, namely Georg Friedrich von Zentner in Bavaria and Karl Friedrich Nebenius in Baden; above all, that both documents were clearly influenced by previous constitutions and bore the unmistakable signature of a monarchical constitution.

However, despite their similarities, there were also clear differences, particularly with regard to the importance of external constitutional ‘models’.

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While in Baden foreign constitutions played a major role, this was less the case in Bavaria. This was due to the different ways in which the two states experienced constitutionalism: Bavaria had, at least formally, become a constitutional state in the Napoleonic Age. While the Bavarian government did not want to unduly overestimate the connection between the ‘papery constitution’ (papierene Constitution)7 of 1808 with its successor of 1818, it did want to emphasise the innovative quality of the latter, manifest in replacing the ‘alien’ term Konstitution by Verfassungs- Urkunde.8 Be that as it may, post-1814 constitutional debate was unmistakably structured by and referred to the Constitution of 1808. In contrast, Baden had not had a consti-tution in the Napoleonic Age, despite efforts made during the Confederation of the Rhine. Furthermore, the personalities and backgrounds of Zentner and Nebenius were as different as the freedom they were granted in the drafting of the constitutions. Zentner, considerably older than Nebenius and scholar of the Reichsrecht, was a child of eighteenth-century political thought. Concepts of corporative government and legal privileges contin-ued to play a major role in his constitutional reasoning. Despite Zentner’s role as Konstitutions-Papa,9 the Badenese Verfassungs- Urkunde had an even more ‘personal’ touch than that of Bavaria. This was since Nebenius was basically given free rein in drafting the future Badenese Constitution with only a few general guidelines which had to be observed. In contrast to Zentner, Nebenius’ formative years had been the Revolutionary Age and he was a clear advocate of modern representative constitutionalism. Without distinct expertise in constitutional law, Nebenius appropriated the necessary knowledge he needed for drafting the Constitution of the Grand Duchy by studying constitutional literature and texts, among them the Norwegian Eidsvoll Constitution of 1814 and the Polish Constitution of 1815, both of which were only touched upon in passing in public discourse. Hence, it comes as no surprise that a considerable part of the Badenese Verfassungs- Urkunde of 1818 was basically inspired by or adopted from existing foreign constitutional documents, the most important being the French Charte. This holds true not only for the central principle of monarchical sovereignty and authority, but also for many other provisions. Irrespective of all the often literal ‘takeovers’ from the Charte, which in Bavaria were slightly less frequent and more selective in nature, constitutional transfer needs to be seen in perspective.

In many cases, certain ‘analogies’ proved to be merely an expression of commonly acknowledged constitutional principles, and one can go so far as to claim that each individual constitutional text did, to a large extent, reflect such basic ‘constitutional common sense’. If transfer actually did take place, then it was usually through a careful selection process of those constitu-tional principles and elements deemed suitable for the Badenese or Bavarian conditions respectively. Often this process was not direct, but via a third document (for example, the Charte via the Constitution of Württemberg in

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Bavaria or via the Constitution of Congress Poland in Baden), or by means of transformation and adaptation. Even the monarchical principle itself, the very nucleus of constitutional monarchism, was open to variation, either formulated warily, as in France, or more rigidly, as in Southern Germany. A mix of tradition, imitation and innovation was characteristic for all constitutionalisation processes, resulting in the end in each of the three constitutions sharing certain traits, yet at the same time preserving their own singularity and individuality.

A typical example is the franchise system of the three states. Each had not only their own legal peculiarities, but also different prerequisites to involve the population in political decision- making. While the Badenese Verfassungs- Urkunde expressed, for its time, an amazingly generous and progressive system of (male) franchise, French suffrage was highly restrictive and in the course of time became even more so. In comparison, Bavaria took a middle way between the two. The individuality of each of the three constitutional systems dispels conventional ideas of the Charte having been basically ‘copied’ for both the Bavarian and Badenese Constitutions. In the same way, their individuality demonstrates the limits of generalising typologies. However, while it is deceptive to talk too broadly about an ‘age of adopting foreign law’,10 it would be no less misleading to over- emphasise the distinct nature of individual constitutional developments and the importance of national Sonderwege, a notion often expressed in older German literature. This would neglect the fact that the Charte was a key inspirational source for Southern German constitutionalism and, if nothing else, an important ‘through station’ and formalised ‘gate of entry’ for (Western) constitutional ideas and institutions which had gained universal status.

Thus, from the results of this enquiry some lessons might be learnt for research on intercultural transfer and reception in general: (1) that differing conditions and prerequisites are not necessarily an argument against transfer and reception of certain ideas and/or practices; (2) that the traditional way of interpreting ‘model’,11 namely as a transfer from A to B, is problematic, and that what is in fact required is a more flexible analytical understanding of the notion ‘model’; (3) that transfer and reception are complex ‘processes’ which work at varying levels and have to be interpreted accordingly and not simply as one single complete step in itself; (4) that it is particularly difficult to identify which imports are indeed conscious and deliberate acts, and which are simply the expression of contemporary common sense; (5) that accounts dealing only with formal (dis)similarities are insufficient in understanding transfer and reception, but (6) that it is essential to focus on individual key figures and agents in transfer and reception processes and take their (political, social, educational)12 background into account in order to gain a clearer understanding of how these processes actually work; (7) that in view of the fact that the act of transfer and reception is rarely chronicled in detail, one usually has to make do with circumstantial

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evidence, thus leaving scope for ambiguity.13 Against a background of such restrictions it becomes clear (8) that formal ‘transfer concepts’, as outlined in the introduction of this enquiry, are useful in developing one’s analytical approach, but are unable to describe transfer and reception phenomena in all their complexities. Rather than trying to use a universal ‘theory of transfer’, one should strive towards adopting more ‘individual’ approaches depending on the enquiry and sources in question.

Let us now turn to analysing the practice and ‘life’ of constitutional monar-chism in France, Bavaria and Baden which, similarly to the comparison of constitutional texts, reveals a profusion of parallels and differences. More clearly than in the constitutional documents themselves, the dividing line here is mainly between France on the one hand and Southern Germany on the other. This is plainly reflected not only in the length of time the monarchical- constitutional systems were in effect, but also, to give an example, in the role of the press and the development of the constitutional culture. Perhaps the most obvious difference between France and Southern Germany was the role foreign policy played in constitutional develop-ment. In France, the prerequisite for the Charte being reintroduced after the Hundred Days had been foreign military intervention. Moreover, the preser-vation of the constitutional system had been codified in the Second Treaty of Paris, meaning that if it had been toppled, this would have provoked, in all probability, the European Great Powers to intervene. Nevertheless, compared to the Southern German states, France did enjoy more foreign political freedom and independence, not only on account of its sheer size and power, but also, and indeed mainly, because France was not restricted by an overriding political entity, namely a confederation. In other words, the foundations of the French constitutional order after 1814 may well have been laid outside the borders of France, but later constitutional politics continued basically unhindered and uninfluenced by foreign intervention. In contrast, the German Confederation was omnipresent in determining constitutional practice in Bavaria and Baden, strictly limiting any tendencies to liberalise or democratise.

Irrespective of the prevailing dissimilarities and national idiosyncrasies, certain structural analogies between the three remain. Above all, a latent dualism between crown and parliament was inherent in all monarchical- constitutional systems: not only at the level of the demarcation of political power, but also at the level of ‘representation’, since by introducing a repre-sentative system an important shift in the relationship between ruler and people took place. The ruler was no longer the only ‘natural’ representative of the people, but now had to compete with parliament. Hopes that crown and parliament would ‘strive toward its high purpose without restrictions arising from mistrust, always and mutually supporting each other’,14 though noble, were soon torn asunder by rough parliamentary practice, which in France, Bavaria and Baden was characterised by perpetual antagonism

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between the two poles or, at best, fragile compromises.15 While in defining the wording and content of the constitutions the personal role of the monarch was not necessarily important, in everyday constitutional practice, how-ever, it was indeed decisive. The monarchs’ actions could not override the existing dualism as such, but the way in which they ‘interpreted’ the constitutional documents was a key factor for the political climate and the intensity of conflict. ‘Interpretation’ ranged from a moderate under-standing of constitutional monarchism, facilitating reform and change (Louis XVIII), a strictly formalistic juridical interpretation sticking to the wording of the constitutional document (Ludwig I of Baden, Ludwig I of Bavaria from 1830 onwards), to open antipathy against the existing system and attempts to effect radical revision (Charles X). But no matter how each sovereign actually acted, in the long term monarchical power was doomed to become a shadow of its former self.

The constitutional systems gathered their own momentum from which no ruler could escape: neither in France, where mass mobilisation and the politicisation of the public sphere had a long tradition, nor in (Southern) Germany, where ‘revolutions from above’ had been the only way of achieving social and political change and where the new Verfassungs- Urkunden were solely intended to be an auxiliary instrument for the civil service state.16 Attempts on the part of the monarchs and their governments to counter growing political demands from their citizens by steering their constitutional system via manipulation or coercion were only partly successful, if not counterproductive. The same can be said for restrictions of electoral law and attempts to influence elections through prefects during the French Restoration and the arbitrary exclusion of oppositional parliamentarians from the Landtage in Southern Germany. Such measures provoked radicalisation rather than easing of the political situation. Political practice corrobo-rated the failings of what Robert von Mohl later termed ‘corruption’. ‘Propaganda’ in the widest sense of the word (for example, in writing, visual form, by public festivities) was perhaps a suitable strategy to fortify existing constitutional systems and the position of the monarch, but it could not guarantee lasting stability. This was particularly demonstrated by the con-stitutional festivals and gatherings in Southern Germany, which became a breeding ground of liberal and deutschnational criticism: the exact opposite to what the government had intended.

Notwithstanding their susceptibility to conflict and their inherent deficits, favoured by an increasingly self- confident and critical public, the output of the monarchical- constitutional systems in France, Bavaria and Baden was – at least intermittently – respectable and cannot be reduced to merely ‘muddling through’. All three constitutions had the potential to provide a productive legislative framework as long as constitutional law was not infringed upon, and be a practicable tool in dealing with the problems of the age. In France, constitutional monarchism proved to be invaluable as a legal

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basis in overcoming the existing Napoleonic constitutional order, legitimising the restoration of the Bourbon dynasty, and ‘reconciling’ revolution and reaction. In Bavaria and Baden it was an effective tool in managing the tran-sition from state absolutistic to constitutional forms of government, solving practical (fiscal and political) problems, and safeguarding state sovereignty.

With this in mind, working hypothesis number two can neither be entirely verified nor falsified, namely that despite the uniqueness in its genesis, Charte- constitutionalism was a universally applicable export product, which in different countries generated similar challenges and characteristics for constitutional practice. It is true that the French Constitutional Charter was an important stimulus for the constitutions of Bavaria and Baden. However, the provisions of the Charte were neither imported in toto nor left unchanged, but only – as one among other inspirational sources – partially taken on board after adjustment and ‘acculturation’. The universality of Charte- constitutionalism lay not in its concrete provisions, but in its over-riding idea to fuse monarchical sovereignty and authority with modern constitutionalism. Equally, constitutional practice shared certain structural similarities, above all the latent dualism between crown and parliament, but it was also able to keep its own individual profile in every single country.

These observations lead us to the question of the repercussions, in the wider sense of the meaning, of constitutional monarchism and its long- term ‘potential’ within the context of European constitutional history. Establishing monarchical- constitutional systems not only received interna-tional attention, but brought in its wake intrinsic political consequences: it served as an impulse for constitutional movements elsewhere, prompted reform projects, but also triggered counter- reactions and counter- measures, most clearly in the German Confederation. One could go so far as to interpret the constitutional politics of the German great powers and the German Confederation during the Vormärz period as a reaction to and a coming to terms with Southern German constitutionalism. The setting up of modern representative systems in Bavaria and Baden put pressure on other German states to act. Austria and Prussia especially viewed the ‘progress’ in Southern Germany with unease since developments there were contrary to their own notions of a post- Napoleonic order. While in the Southern German states constitutions were enacted in order to strengthen state sovereignty and integrate citizens into the political system by means of representative assemblies, Austrian and Prussian policies aimed at restricting the sovereignty of the members in the Bund and at achieving a political order based on government action, state bureaucracy and limited (alt)ständische constitu-tions. From 1818 onwards, Austro- Prussian endeavours aimed to minimise the impact of Southern German constitutionalism at the federal level: by repressing civil liberties, above all the freedom of opinion and expression, and at the same time by setting restrictive rules for interpreting existing constitutions and proclaiming future ones.

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The German case impressively demonstrates that the role and effect of constitutional monarchism could be of quite a different, often contradictory, nature. For even in the case of similar political starting points, ‘constitutional perspectives’ were not necessarily the same. Some of the arguments which became decisive in setting up of representative monarchical- constitutional systems in Bavaria and Baden were also valid for states such as Hanover, Saxony or the Electorate of Hesse (Kurhessen), perhaps also to a certain extent for Prussia and Austria. Here, however, unlike in the Southern German states, there was no transition to (monarchical) constitutional forms of government at all after 1814, or the transitions there only got under way with considerable delay and under the pressure of the revolutionary movements of 1830 and 1848 respectively. Obviously, ‘rational’ arguments, which might in theory favour adopting one certain constitutional system, are not necessarily a reliable guarantee that such an adoption will actually or imme-diately take place. Thus, a no less interesting question as to why and how Charte- constitutionalism became a highly successful export product after 1814 should be: why did the ‘model effect’ not take off straight away? Was it because the will to set up constitutional government was simply lacking and that reactionary politics was given priority; or was it that other models, for example altständische in Austria, were more attractive? From an ex post perspective, the constitutionalisation of Southern Germany can indeed be said to have played a pioneering role, and from 1848 onwards basically all German states were ‘monarchical constitutional’ following the Charte model. However, the paths struck were neither identical nor straight.

No less important than the political repercussions of constitutional mon-archism were those of constitutional theory and German Staatsrechtslehre in particular. Unlike in France, where liberals like Constant and conservatives like Chateaubriand agreed upon the need to regularly adapt the Charte- system and provide for its parliamentarisation, German scholars lacked such an ‘evolutionary’ perspective. They continued to subscribe to a static under-standing of Verfassungsstaatlichkeit. In contrast to their French counterparts, they did not consider constitutional monarchism to be a down- to- earth response to the needs of the time or a ‘compromise’ open to reform and improvement, but as an ultima ratio. For them, the full preservation of the monarchical principle was a conditio sine qua non. Emblematic of this approach is Friedrich Julius Stahl’s Das monarchische Princip.

One peculiarity of German discourse was that the (constitutional) state was always seen and interpreted from the perspective of the monarch, even by liberally- minded intellectuals:

The entire so- called constitution- opus [Verfassungs- Werk] thus amounts to providing new cornerstones for the most beautiful there is in modern state constitutions, namely hereditary and princely majesty, so that people and princes are no longer divided, and the grievances of the

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former about despotism and tyranny cease to exist in the same way as the grievances of the latter about disobedience and revolt.17

In the context of the post- Napoleonic German Staatsrechtslehre, monarch and state were virtually synonymous and the former a symbol of the latter. Accordingly, any attack on the ruling sovereign was nothing short of an assault on the state itself. This particular understanding of monarchy and the political conditions favouring it helped to preserve the monarchical principle throughout the nineteenth century. Though it might be too simplistic to maintain that German development and Western European parliamentarianism remained separate entities both ideologically and constitutionally for almost a century,18 there is no doubt that a substantial transition from constitutional monarchism to parliamentary monarchy did not take place in Germany until after the First World War, neither in political theory nor practice. Despite growing parliamentary power, a legislative initiative involving both parliament and king, the extension of suffrage and the professionalisation of political life in the second half of the century, the legal and practical predominance of monarchical power remained basically unchanged.

Against this background, it is not astonishing that the constitutional (non-)development of Germany met with an ever increasing lack of under-standing from abroad, particularly from Britain, who regarded itself as the trailblazer of European constitutionalism. Back in 1814/1815, the concept of ‘constitutional monarchism’ was regarded as being hardly more than a tem-porary tool to politically stabilise continental Europe after the Revolution and the Napoleonic Age. In British eyes, the path embarked upon in German politics and political theory during the nineteenth century was hence nothing short of historical and constitutional gridlock.

Germany’s exclusive focus on the ‘monarchical principle’ and ‘monar-chical government’ in persona, both in constitutional theory and practice, would in the long term have to be paid for dearly because a Verbürgerlichung of the monarchy was never achieved. Harmony between monarchy and state was impeded and in contrast to, for example, Britain, the German monarchy was not able to achieve lasting ‘societal integration’.19 Therein lies one of the crucial reasons for the later fall of the German princes: the legislative output of the monarchical- constitutional systems, which in the second half of the nineteenth century had become Germany’s ‘constitutional standard’, was not necessarily faulty,20 but in the long term no country could cloister itself away from the fundamental processes of change in legitimising and setting up political power.

Since the late seventeenth century, the general trend had been towards democratising, legalising, functionalising and mediatising political rule, a process which intensified and accelerated in the course of the nineteenth century. The democratic principle gained importance, manifest in growing

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demands among the people for a voice in the political decision- making process, for civil rights to be granted, and franchise to be introduced or extended. It became progressively difficult to argue for and justify the unrestricted political powers of the princes, whose role gradually changed from ‘ruler’ into responsible ‘regent’.21 That was all the more so since the political field was increasingly covered by laws and left fewer and fewer legal ‘black holes’. Accordingly, it became all the more problematic to solve constitutional conflicts22 without recourse to juridical arguments, particularly for the monarchs. During the Revolutionary Age, political con-frontation had become radicalised in style and approach, and around 1800 a number of constitutional conflicts were solved by open coups (France, Italy, the Netherlands, Switzerland). But after 1814, even in monarchical- constitutional systems any assaults on existing constitutional regimes had to be fortified with legal arguments, as demonstrated by the attempts of Charles X to justify the July Ordinances of 1830 and hence the de- facto repeal of crucial constitutional provisions by referring to Article 14 of the Charte. In the second half of the century, constitutional conflicts were rarely solved by unilateral action on the part of the monarch. What did become characteristic were long- drawn- out political and juridical struggles between monarch and parliament as in Prussia 1862–6 and Denmark 1884–94. Parallel to this, initial steps were taken to solve constitutional conflicts in an institutionalised manner, for example via constitutional courts (for example, Norway 1884). While helping to put monarchical personal power into perspective, none of this increased the stability of constitutional monarchism to the same extent. This was since unlike the monarchs, their political ‘adversaries’ – be it parliaments or popular movements and their (self-declared) representatives – could by- pass the rule of law more easily. Adversaries could still fall back upon the right of self- determination of the peoples, popular sovereignty, the natural right to resist ostensibly arbitrary regimes, or the need for revolutionary change in order to establish what they considered ‘just’ political systems.

This option was facilitated by the fact that the process of ‘juridification’ went hand in hand with accelerating the ‘functionalisation’ and ‘charismati-sation’ of monarchy. The Great Revolutions marked the peak of a long- term transformation in the European social and political sphere,23 characterised by a ‘relocation of questions of salvation and redemption from the transcen-dental, otherworldly sphere into mundane history’.24

Parallel with this process was a drastic downgrading of the established concepts of legitimacy. ‘Tradition’, the idea of an ‘authority of the past’, had been characteristic of the pre- modern age and served as a regulator for political life. In the modern age, however, tradition was to be replaced by functionality25 and originality as main categories, thus fundamentally changing the nature of politics: it was no longer possible to base political rule exclusively upon conviction in what had previously existed. Political

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institutions were forced to reassert their legitimacy by continuous activity and innovation. The concept of the ‘divine right of kings’ was no longer a sound source for monarchical legitimacy. Favoured by their legal abstrac-tion into ‘constitutional bodies’, the monarchs – no matter how powerful they might be – were increasingly seen and judged rationally, and former awe for the office holder was now replaced by respect which first had to be earned:

no one any longer believes in the divine origin of the regent, no one any longer fears his physical power – thus there remains only the regard for him, the belief in the excellence of his intentions and the allegiance to institutions whose guardian he is and of which he is a part.26

But the more rational the understanding of political institutions was, the clearer it became that monarchs too were replaceable, especially if they did not live up to public expectations. In former times, monarchs might nobly and convincingly write about freedom or constitutional government, and yet continue governing like a despot; but in the nineteenth century ‘the royal amateurs would now be taken at their word, and their pleasant specu-lations turned into anxious realities’.27 In fact, Louis XVIII’s Restoration project was essentially based on the promise that the Bourbon monarchy was a better guarantee for the future development of the country than any other political alternative: one crucial, if not the only, foundation stone on which Louis could confidently base his rule. All the more disastrous, then, if this promise was not kept.

The decline of tradition as a source of legitimacy together with growing public demands on politics increased the desire and need for charismatic leadership: individuals who through sheer personal and exceptional attributes seemed to be born leaders, who would guarantee progress and/or deal with a crisis if the need arose. Yet even if a few hereditary monarchs, or at least members of their governments, such as Otto von Bismarck under Wilhelm I,28 managed to gain such a status among their subjects, charisma was still a highly ephemeral and Janus- faced means of legitimising political rule. The inner logic of charismatic authority means that a leader’s virtues are constantly in danger of being undermined and of losing their appeal,29 and the leader all the more likely to become dependent on the grace of his subjects. The plebiscitary reign of Napoleon I and Napoleon III, which can be classed either as Bonapartism or Caesarism,30 was the institutional-ised acknowledgement of this impending ‘reinterpretation of charisma’31 and proved the instability of political systems primarily based upon such charisma.

A no less demanding challenge for monarchical rule was the burgeoning mediatisation of Western society, a process beginning with a change in the machinery of communication. The increasing importance of the press as

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(mass) medium from the eighteenth century onwards ran parallel with the politicisation process among broader parts of the population and helped make politics an accessible ‘mass market’. During the nineteenth century, political rule became more public – though not automatically more transparent – than ever before and increasingly dependent on popular opinion created under the influence and within the framework set down by the mass press. Its capacity to set the ‘political agenda’ was clearly demon-strated during the French Restoration when the press became one of the central players on the political pitch. In such an environment, it became increasingly important for political actors to win over the press or sup-press it, to consider medial implications of their political decisions, and to develop strategies on how to ‘sell’ and ‘market’ themselves and their political programmes. In this respect the legitimacy of monarchical rule underwent crucial changes, too: whether they liked it or not, the princes were now forced to live up to the expectations of the public. They were no longer free agents to do as they wished on a whim, and were hence controlled rather than independent in their decisions and actions. By the nineteenth century, the ideal of an autonomous monarch had lost most of the foundations it may have once had.

Faced with such obstacles, the third and last working hypothesis of this study that constitutional monarchism was open to reform and evolutionary development, provided that monarchical power in its role as the leading political force maintained the ability and – indeed – the will to reform in its political actions, is only valid up to a point. It is certainly true that the monarchical- constitutional systems established in France, Germany and other parts of Europe were not doomed to failure a priori, but had some potential for development. In spite of this, however, the adaptability and reformability of these systems clearly had limits. The more politics devel-oped into a mass phenomenon and the more omnipresent the public desire and need to be actively involved in the political process was, the more anachronistic the concept of unrestricted monarchical sovereignty and authority became. As tradition lost its role as a cohesive element of monarchical rule, the more unstable the legitimacy of that rule became and the more exposed the monarch was likely to be to public discontent and criticism. The dilemma was, basically, that in order to equip monarchical- constitutional systems to stand up to and surmount the challenges of the time by reform and evolution, the only reasonable way to go about it was by allowing uncompromising democratisation and parliamentarisation, and by withdrawing the monarch from the political frontline. Indeed, the need for such parliamentarisation and de- politicisation was recognised in contempo-rary political thought by writers such as Constant, Chateaubriand or Mohl. If consistently applied, however, this meant monarchs had to forgo their dominant position, the typical feature of constitutional monarchism. Or to put it in another way: the only way to reform constitutional monarchism

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long term was by means of a change of regime, which would inevitably deprive the system of its very soul.

In this respect, constitutional monarchism was more or less forced to be a transitional phenomenon; an ‘independent’ constitutional type, but one with a clear ‘expiry date’. This role was actually corroborated by historical reality: monarchical- constitutional systems remained episodes of the nineteenth century, which had not existed in the eighteenth century and only lasted to the First World War. These systems represented neither a ‘zero hour’ nor ‘the end’ of European constitutionalism. In many cases constitutional monarchism paved the way for parliamentary democracy, provided that emphasis was put on the democratic and rational principle and the functionalisation of the monarchy. In these systems there might still be a place for princes, but only as head of state with a purely representative function, as a symbol of national unity, as moral role- model or an element of stability. They were, in any case, no longer an ‘efficient part’ of the constitution.32 However, constitutional monarchism not only had the potential to serve as a stepping- stone from absolutism to parliamentary democracy, but also to despotism. In point of fact, the functionalisation and rationalisation of the monarchy was likely to be the dawn of authoritarian regimes if the monocratic element was pushed tothe extreme, while democratic control mechanisms were negated. From there, by adding charismatic leadership, the exploitation of the popular press for propaganda purposes, and (pseudo-)messianic ideology, it was only a small step to the totalitarian movements of the twentieth century. In the end, opportunity and damnation, blessing and curse were hence equally inherent in the system of constitutional monarchism.

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Notes

1 Introduction

1. See Montesquieu (1950 [1758; OV 1748]; OV stands for ‘original version’).2. In his famous lectures on the epochs of modern history, held for King Maximilian II

of Bavaria in 1854, Leopold von Ranke shrewdly remarked: ‘Dies [Ranke was referring to the American Revolution; MJP] war eine größere Revolution, als früher je eine in der Welt gewesen war, es war eine völlige Umkehr des Prinzips. Früher war es der König von Gottes Gnaden, um den sich alles gruppierte; jetzt tauchte die Idee auf, daß die Gewalt von unten aufsteigen müsse’ (Ranke 1971 [1854], p. 417). For better readability of the text, all original quotes in the main text have been translated into English.

3. With reference to the American Federal Constitution, Thomas Paine wrote: ‘It was the political bible of the state. Scarcely a family was without it. Every member of the government had a copy; and nothing was more common, when any debate arose on the principle of a bill, or on the extent of any species of authority, than for the members to take the printed constitution out of their pocket, and read the chapter with which such matter in debate was connected.’ Rights of Man, Part II, in Paine (2000 [1989], pp. 155–263, citation p. 186).

4. See Sieyès (1789).5. In his final report on the Congress of Vienna, Talleyrand described the unanimous

disappointment felt by the European powers on the way in which Ferdinand VII had returned as king to Spain in 1814: ‘Je n’ai vu aucun Souverain, aucun ministre, qui, effrayé des suites que doit avoir en Espagne le système de gouvernement suivi par Ferdinand VII, ne regrettât amèrement qu’il ait pu remonter sur son trône, sans que l’Europe lui eût imposé la condition de donner à ces États des institutions qui fussent en harmonie avec les idées du temps.’ Rapport fait au Roi pendant son voyage de Gand à Paris (June 1815), in Pallain (1881, pp. 436–84, citation p. 474). Indeed, this criti-cal opinion was soon to be confirmed, for only six years after the advocates of the 1812- Cadiz- Constitution had been forced into exile, the revolution started in Spain.

6. Anderson and Anderson (1967, p. 39f., p. 78f.). The use of the term ‘monarchical constitutionalism’ has a long tradition in German constitutional law (monarchischer Konstitutionalismus), namely as a synonym for the actual constitutional develop-ment of Germany and particularly of Prussia in the nineteenth century (see, for example, Hintze 1911, p. 360f.). However, ‘monarchical constitutionalism’ and ‘constitutional monarchism’ respectively also aptly characterise the constitutional situation in France and other states after 1814. More recent studies have taken a wider view of the meaning of these terms (see Kirsch 1999b), to also encompass Bonapartist regimes and constitutional monarchies dominated by parliament (such as the English system from 1689 onwards). In this study, however, the terms are used solely to characterise constitutional systems in which the leadership role of the monarch is uncontested (‘monarchischer Konstitutionalismus mit Vorrang des Königs’; Kirsch 1999b, p. 7).

7. Unless specified otherwise, ‘Germany’ is used in this study in a wider sense, also including the German- speaking parts of the Habsburg Monarchy (Austria).

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8. Deutsche Bundesakte vom 8. Juni 1815. Art. 13: ‘In allen Bundesstaaten wird eine Landständische Verfassung statt finden.’ In Huber (1978 [1961], pp. 84–90, citation p. 88). The German noun Landstände or Landtag – the corresponding adjective being landständisch – traditionally signifies the assembly of (feudalistic) representatives of the estates of the realm, called together to advise and pass legislation.

9. For the terminology see, for example, Demel (1983, 1993).10. The assumption that Southern German constitutions were direct ‘successors’, if

not mere ‘copies’, of the French Charte is commonly accepted in more recent literature (see Brandt 1998, p. 68f.; 2002, p. 142; Fehrenbach 1996b, pp. 13–24, explicitly p. 13; Kirsch 1999b, especially pp. 322–9; Schulze 2002, p. 63; Stein and Frank 2007 [1968], p. 8; et al.). Years in square brackets refer to the year of the first edition (literature) or to the original year of publication (printed sources).

11. In this work, the terms ‘English’ and ‘British’ are used synonymously to describe the constitutional system established in the wake of the Glorious Revolution.

12. The administration of public debt has to be seen as part and parcel of reform- politics. For Bavaria and Baden see the works of Hans- Peter Ullmann (Ullmann 1986a, 1986b).

13. See, for example, Brandt (1987, 1997, 1999), Gerner (1989), Grawert (1988), Mö gle- Hofacker (1981), Press (1983), Raberg (2001), Wunder (1974, 1981).

14. The agreement, though, was less apparent in Hesse- Darmstadt than in Württemberg. Ernst Rudolf Huber therefore refers to a ‘verschleierte Verfassungsvereinbarung’ (Huber 1967 [1957], p. 336) with regard to the 1820 Constitution of Hesse- Darmstadt.

15. See, for example, Dumont (1991), Oz- Salzberger (1995).16. Regarding the state of comparative research in history, see Cohen and O’Connor

(2004), Haupt and Kocka (1996), Kaelble (1999, 2005). As for the theory of transfer research in general see, for example, Espagne (1994). For the transfer of ‘political models’ in the nineteenth century see Velde (2005), Pombeni (2005). An overview of comparison and transfer in social and cultural sciences is pro-vided by Kaelble and Schriewer (2003). As for ‘transnational history’, see Budde, Conrad and Janz (2006). Critical of the sharp distinction between comparative and transfer research is, for example, Paulmann (1998, especially p. 681f.). The most ambitious attempt to overcome the boundaries between transfer and com-parative research is the concept of histoire croisée (see Werner and Zimmermann 2002, 2003, 2004, 2006). Even though it has only recently become a major methodological tool in history, the comparative method has a long tradition, particularly in legal research. In Germany, for example, the Kritische Zeitschrift für Rechtswissenschaft und Gesetzgebung des Auslandes ([Kritische Zeitschrift] 1829–56) consciously made use of the comparative method even in the first half of the nineteenth century.

17. As far back as 1888 the German- American anthropologist Franz Boas drew atten-tion to the fact that ‘exchange’ and ‘acculturation’ was a basic characteristic feature of almost every culture (see Boas 1982 [1888], especially p. 631f.). Marc Bloch later identified two types of comparative study: the first compares societies so separated through space and time that no direct exchange process is possible, which might be called ‘trans-cultural’ comparison; the second is the more com-mon type of ‘intercultural’ comparisons (see Bloch 1928, p. 18f.).

18. On the potential of combining transfer and comparative research in the field of constitutional scholarship, see Prutsch (2009a, Section 1.2.1).

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19. Regarding the concept of ‘new political history’ see, for example, Rémond (1996 [1988]), Frevert and Haupt (2005), Kraus and Nicklas (2007).

20. In recent years, attempts have been made to overcome the one- sided ‘constitu-tional law’ orientation of the field and to widen the meaning of ‘constitution’. See, for instance, the project of a Handbuch der Europäischen Verfassungsgeschichte im 19. Jahrhundert (Vol. 1: Brandt, Kirsch and Schlegelmilch 2006), which applies a broader concept of constitution(alism). On the scope and limits of modern constitutional history see, for example, Prutsch (2010, especially ‘Introduzione: Prospettive e limiti di una “Nuova Storia Costituzionale”’, pp. 6–12).

2 The Charte and Constitutional Monarchism

1. For details on the history and drafting of the Charte, see Sellin (2001, pp. 41–273). See also Prutsch (2006, pp. 13–55).

2. In February 1814 Metternich was still declaring on behalf of the Austrian Emperor that: ‘Les puissances se sont réunies sur le principe de ne pas regarder le change-ment de dynastie en France comme le dernier but de leurs efforts […] Elle [His Majesty the Emperor; MJP] ne se croit pas en droit de se mêler des formes de gouvernement d’un État indépendant.’ In Fournier (1900, p. 287).

3. By this time, the northeastern part of France had been occupied by the allied troops.

4. A lively account of French foreign policy in the last years of the Empire can be found in the memoirs of the then foreign minister, Caulaincourt (Caulaincourt 1933). For the Congress of Châtillon see Fournier (1900).

5. This military decision was backed up by reports of growing defeatism and unrest in Paris (see Madelin 1937–54, Vol. 14, p. 223).

6. In this declaration, Napoleon was personally blamed for the failure of the peace efforts. See Déclaration des Puissances Alliées (25 March 1814), in Chod’zko (1863, Vol. 1, pp. 143–46).

7. Since his replacement in 1807, Talleyrand had not been assigned any political posts of importance. In 1814, he held the merely symbolic function of vice presi-dent of the Senate. Nevertheless, behind the scenes he had been able to safeguard his influence by maintaining connections with the leaders of the coalition. At the beginning of March, he intervened for Napoleon to be deposed. See Bury (1948, p. 168f.). Among the more recent biographical works on Talleyrand is Morlot and Happert (1991).

8. In contrast to the Corps législatif, the Senate had not been adjourned in December 1813. See Bury (1948, p. 166f.). Concerning the content and background of the talk between Talleyrand und Alexander I, see Sellin (2001, pp. 133–40).

9. See Talleyrand-Périgord (1891–2, Vol. 2, p. 165). In general, however, Talleyrand’s memoirs are of only limited value as a primary source.

10. Sellin (2004, p. 278f.).11. See Sellin (2001, p. 136).12. Not only the Duke of Orléans, but also Napoleon’s former marshal, Jean- Baptiste

Jules Bernadotte, the Swedish crown prince and later king Charles XIV John, were being considered as possible candidates for the French throne (see Talleyrand-Périgord 1891–2, Vol. 2, p. 155).

13. On the role of ‘sovereignty’ as a political key term around 1814, see Stolleis (2006).

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14. The text of this proclamation was published in the Moniteur universel of 2 April 1814: [Moniteur universel] 1811–68, No. 92, 2 April 1814, p. 363.

15. What was also stressed in the proclamation was that the allied powers ‘respectent l’intégrité de l’ancienne France, telle qu’elle a existé sous ses rois légitimes’ and that – ‘pour le Bonheur de l’Europe’ – a strong French nation would be assured (ibid.).

16. Talleyrand’s address in ibid., p. 365.17. What favoured Talleyrand’s efforts was that those senators considered to be criti-

cal of Napoleon’s regime had disobeyed the Emperor’s order to leave the capital in in the event of Paris being threatened by the allied troops.

18. See Prutsch (2006, p. 19).19. Sé natus- consulte portant que Napoléon Bonaparte est déchu du trône, et que le droit

d’hérédité établi dans sa famille est aboli (3 April 1814), in [BL] 1814–48, Vol. 1, No. °8, pp. 7–9. The document itself consists of two main parts: the first part lists a number of offences of which the Emperor was accused, whereas the second part contains the actual decision to depose the Emperor.

20. The most obvious parallels were certainly those with the English Revolution: ‘Much in the same way as parliament in the Glorious Revolution, the Senate wished to get rid of the Emperor and at the same time to preserve the institutions of the empire.’ Sellin (2004, p. 277).

21. [BL] 1814–48, Vol. 1, No. °8, p. 7.22. Taking the text of the constitution as a basis, all these accusations were indeed

well justified.23. [BL] 1814–48, Vol. 1 No. °8, p. 9.24. Ibid. This final sentence thus implicitly expresses popular sovereignty and revolu-

tionary rhetoric, focused not only on juridical reasoning, but also and especially on categories such as the ‘reasonableness’ of political actions and their unison with the ‘will of the people’.

25. One can argue, however, that in a hereditary monarchy any offence committed by the ruler delegitimises all his successors in equal measures as success and cha-risma would legitimise them.

26. In order to prepare Napoleon’s official deposition, the Provisional Government had already addressed the armed forces on 2 April. See Adresse du Gouvernement provisoire aux Armées françaises (2 April 1814), in [Moniteur universel] 1811–68, No. 93, 3 April 1814, p. 367.

27. [BL] 1814–48, Vol. 1, No. °8, p. 9.28. See Acte par lequel le Corps législatif, adhérant à l’acte du Sénat, reconnaît et déclare

la déchéance de Napoléon Bonaparte et des membres de sa famille (3 April 1814), in ibid., pp. 9–11.

29. See Tulard (1982, pp. 466–8), Bertier de Sauvigny (1999 [1955], p. 12). An English translation of his standard work on the French Restoration was published in 1980 (Bertier de Sauvigny 1980).

30. Adresse du Gouvernement provisoire au Peuple français (4 April 1814), in [BL] 1814–48, Vol. 1, No. °12, pp. 12–14. Citation p. 12f.

31. Ibid., p. 13.32. For the objections by the military commanders see Caulaincourt (1933, Vol. 3,

p. 170). See also the memoirs of Marshal Marmont, one of Napoleon’s closest confidants: Marmont (1857, especially pp. 253–56).

33. The renouncement was not dated and took effect only on 11th April, when the allied powers granted Napoleon the sovereignty of Elba and an annual pension

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of two million francs (Treaty of Fontainebleau). Napoleon departed for Elba on 20 April. For details on Napoleon’s abdication, see Sellin (2001, pp. 173–94).

34. See the memoirs of Etienne- Denis duc de Pasquier, the police commissioner of Paris, who was himself a member of the committee. Pasquier (1893–5, Vol. 2, pp. 315–18).

35. See Duvergier de Hauranne (1857–71, Vol. 2, p. 98). On the Senatorial Constitution in general, see Soto (1953) and Corciulo (1997).

36. Constitution française (6 April 1814), in [BL] 1814–48, Vol. 1, No. 13, pp. 14–18.37. See Hartmann (2003 [1985], p. 89), Duverger (1944, p. 60).38. There are striking similarities to the Glorious Revolution, in which William of

Orange and his wife Mary were proclaimed England’s rulers only after their acceptance of the Bill of Rights.

39. See Tit. 3 Chapter I, Art. 5 of the Constitution of 1791: ‘Le corps législatif ne pourra être dissous par le roi.’ In [AP] 1862ff. [1787–99], Vol. XXX, p. 154.

40. Peter Claus Hartmann (Hartmann 2003 [1985], p. 89) considers the Senatorial Constitution to be the first attempt to establish a parliamentary system. Nonetheless, it can be argued that the Constitution of 1791 had tried to do exactly this by introducing ministerial responsibility, at least in a limited form. See Tit. 3 Chapter II Section IV, Art. 5 of the 1791 Constitution: ‘Les ministres sont responsables de tous les délits par eux commis contre la sûreté nationale et la Constitution; De tout attentat à la propriété et à la liberté individuelles; De toute dissipation des deniers destinés aux dépenses de leur département.’ In [AP] 1862ff. [1787–99], Vol. XXX, p. 160.

41. See Duverger (1944, p. 61).42. These regulations of the Senatorial Constitution were not only dictated by mate-

rial, but also by fundamental political interests. That is true insofar as they were intended to create an aristocracy fashioned after the example of the English peer-age system. Accordingly, the Senators would have to be financially independent in order to become an independent political power. See Sellin (2001, p. 164). See also the comments of count Lanjuinais (Lanjuinais 1819, p. 68), who was himself a senator.

43. Duvergier de Hauranne (1857–71, Vol. 2, p. 99).44. Among others, the pamphlet by Nicolas Bergasse, a former member of the

Assemblée constituante, is worthy of note (see Bergasse 1814).45. Louis- Charles, Duc de Normandie, Dauphin of Viennois (1789–91), Prince Royal

of France (1791–3), had been born in 1785. He died in prison in 1795.46. In contrast to his older brother, Louis had managed to leave the country in 1791.

A well- written biography is Mansel (2005 [1981]). See also Lucas- Dubreton (1952 [1925], French original) and Lucas- Dubreton (1927, English translation).

47. See Thamer (1994, pp. 375–8).48. In the Ancien Régime, the title of lieutenant général du royaume was conferred to a

member of the royal family or the nobility to single this person out as a temporal representative of the king. See Erbe (1985, p. 168).

49. Charles’ arrival in Paris was accompanied by popular manifestations of loyalty towards the dynasty. See Pasquier (1893–5, Vol. 2, p. 344f.). In how far these manifestations were representative for the French nation as a whole must remain open.

50. On his entry, Charles was escorted by the National Guard, after leading generals of Napoleon had expressed their allegiance in advance. See Dupuis (1919, Vol. 1, p. 222). On Charles’ entry see the Relation officielle de l’entrée de Monsieur [the

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traditional title for the king’s younger brother; MJP], frère du Roi, dans la ville de Paris, in [AP] 1862ff. [1800–60], Vol. 12, 12 April 1814, p. 15f.

51. The senatorial resolution is printed in [AP] 1862ff. [1800–60], Vol. 12, 14 April 1814, p. 17.

52. Even contemporaries noticed that the Senate had suffered a severe political defeat. See Pasquier (1893–5, Vol. 2, p. 354).

53. In [AP] 1862ff. [1800–60], Vol. 12, 14 April 1814, p. 17.54. See Sellin (2001, pp. 210–13). Again it was the Tsar who wanted to directly influ-

ence the regime change in France. Whatever the more personal reasons for support-ing the Senate and not the Bourbons might have been – his reserved distance to Louis was well- known, as was his high- regard of enlightened philosophy, Alexander certainly pursued sheer power- political interests, too. His activities not only aimed at a closer Russo- French alliance, which required a stable and trustworthy political system in France, but have to be seen also as part of Alexander’s conception of a trans- European post- war order under Russian leadership. For a characterisation of Alexander’s personality and political strategy see, for example, Metternich’s remarks on the Russian Tsar in Metternich (1880–4, Vol. 1(2), pp. 315–33).

55. See [AMAE MD France] 646, fol. 41r–42r. The orthography of the text contains mistakes. This manuscript consists of three pages and has neither a date nor a special heading or signature. Obviously, the document is a fragment. The text is arranged in two columns. The left one is titled ‘projet du Sénat’, the right one ‘observations du Roi’. Whereas in the left column Articles 22 to 29 of the Senatorial Constitution are quoted, in the right one the commentaries of the King to every single one of those Articles are written down. It is highly likely that the whole draft of the Constitution was commented on by the King, but that the first part got lost.

56. Ibid., fol. 41r. In the original, ‘casse’ is used, here translated as ‘disbands’.57. Ibid., fol. 42r.58. Ibid., fol. 42r.59. See Pasquier (1893–5, Vol. 2, p. 407).60. Déclaration du Roi (2 May 1814), in [BL] 1814–48, Vol. 1, No. 89, p. 75f.).61. Ibid., p. 75.62. De Maistre’s Essai sur le principe générateur des constitutions politiques (in Maistre

1821, pp. 255–367), in which he elaborated his views on monarchical sovereignty and divine rights developed earlier in Considérations sur la France (in Maistre 1821, pp. 1–254. A recent critical edition is Maistre 1980 [1797]), was actually published in the same year.

63. [BL] 1814–48, Vol. 1, No. 89, p. 75.64. Ibid.65. See ibid., p. 75f.66. In [Moniteur universel] 1811–68 No. 92, 2 April 1814, p. 365.67. On 2 April, when Napoleon’s deposition was resolved, the Journal des Débats

printed an open letter written by Louis, dated 1 January 1814. This letter under-lined that the course of history would not be turned back after his return and that the revolutionary heritage would be accepted. See Louis XVIII aux Français (1 January 1814), in [JD] 1815–1944, 2 April 1814, p. 3.

68. An essential work on the making of the Charte is still Simon (1906). Regarding more recent research results see especially Sellin (2001, pp. 229–73).

69. Convocation du Sénat et du Corps législatif (6 May 1814), in [BL] 1814–48, Vol. 1, No. 90, p. 77.

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70. Text of the armistice in [AP] 1862ff. [1800–60], Vol. 12, 23 April 1814, p. 19f.71. Details on the commission’s members in Simon (1906, p. 75f.). The number 21,

which frequently appears in literature, is misleading: either one of the royal com-missioners (see Castries 1965, p. 22) or the president of the commission (see Erbe 1985, p. 132) is not included.

72. See [AMAE MD France] 646, fol. 41r–42r.73. ‘Draft A’: [AN AMJ] BB 30/191, dossier 1. Printed in Rosanvallon (1994,

pp. 216–22).74. See, for example, Martin Kirsch’s mistaken supposition that the influence of the

King did not go beyond the decision to impose the constitution and choosing his confidants (Kirsch 1999b, p. 302f.).

75. ‘Draft B’: [AN Papiers Beugnot] 40 AP 7, fol. 7–14. Printed in Rosanvallon (1994, pp. 226–32). In the first draft, the royal commissioners had offered possible textual alternatives, either in the form of marginal notes or additional articles. Louis’ corresponding remarks were taken into account in the second draft. Cf. [AN AMJ] BB 30/191, dossier 1. Printed in Rosanvallon (1994, pp. 222–5).

76. Louis had the military jurisdiction of the Prévots des Maréchaux (Provosts of the Marshals of France) before 1789 in mind (see Erbe 1985, p. 160).

77. See the memoirs of Beugnot (Beugnot 1866, Vol. 2, p. 148), offering a trustwor-thy inner view of the set up of the Charte. The first day of the meeting served to sound out the different opinions in the commission. The deliberations as such only started one day later (23 May) based on a draft of the Abbé de Montesquiou, who had systematically ordered Ferrand’s and Dambray’s draft (‘Draft B’). See ‘Draft C’: [AN Papiers Beugnot] 40 AP 7, fol. 18–20. Printed in Rosanvallon (1994, pp. 237–40).

78. See Rémond (1965, p. 268).79. The original idea of Senate and crown having the final say in the election of the

delegates of the second chamber had been vehemently opposed by the members of the commission in the preliminary meeting on 22 May. Montesquiou’s draft was therefore changed insofar as the direct election of parliamentarians by the electoral committees of the departments was concerned. In return, high property- qualifications and age- limits were introduced.

80. See Sellin (2001, pp. 253–64). Among the modest achievements of the commis-sion was a right for legislative petitions by the chambers and state payments not only for the Catholic, but also Protestant clergy.

81. See Beugnot (1866, Vol. 2, pp. 218–25).82. Text in [AP] 1862ff. [1800–60], Vol. 12, 4 June 1814, p. 32.83. Ibid.84. Ibid., pp. 32–5.85. See Sellin (2001, p. 273). The séance royale actually ended with the promulgation

of several additional royal decrees.86. See Rémond (1965, p. 268f.). See also Gangl (1966, p. 273f.). Beugnot took

the credit for having pressed for the term Charte (see Beugnot 1866, Vol. 2, p. 218f.).

87. According to Max Weber, ‘jede nicht durch persönliche freie Vereinbarung aller Beteiligten zustandegekommene Ordnung’ can be characterised as imposed order (Weber 1980 [1922], p. 27).

88. Charte constitutionnelle (4 June 1814), in [BL] 1814–48, Vol. 1, No. 133, pp. 197–207, preamble pp. 197–9. Beugnot did not draft the preamble of the Charte until the evening of 3 June. A detailed analysis in Sellin (2008).

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89. The fact that the preamble of the Charte mentions Louis VI (1108–37), Louis IX (1226–70), Philip IV (1285–1314) and Louis XIV (1661–1715) shows the broad historical perspective in which the rhetoric of the preamble and the Restoration in general was embedded.

90. It is remarkable that the Age of Enlightenment was not condemned per se, but accepted as something irreversible.

91. The term ‘monarchical principle’ arose only later (for the first comprehen-sive theory see Stahl 1845) and hence does not represent contemporary terminology.

92. Charte constitutionnelle (4 June 1814), in [BL] 1814–48, Vol. 1, No. 133, p. 199f. 93. Particularly in the final stage of the Napoleonic Empire, arbitrary recruiting

methods had become an object of severe criticism by the population. 94. Article 22 of the Senatorial Constitution had been formulated in more general

terms: ‘La liberté des cultes et des consciences est garantie. Les ministres des cultes sont également traités et protégés.’ In [BL] 1814–48, p. 17.

95. ‘Le Roi est le chef suprême de l’Etat, il commande les forces de terre et de mer, déclare la guerre, fait les traités de paix, d’alliance et de commerce, nomme à tous les emplois d’administration publique, et fait les règlements et ordon-nances nécessaires pour l’exécution des lois et la sûreté de l’Etat.’ Namely it was the king’s right to enact decrees in order to guarantee national security which could be interpreted in an arbitrary way (for the constitutional practice, cf. Section 5.3).

96. Thus, Peter Claus Hartmann (Hartmann 2003 [1985], p. 92) is mistaken when he derives the principle of ministerial responsibility from the regulations of the Charte.

97. ‘22. Le Roi seul sanctionne et promulgue les lois.’ 98. The only exception was fiscal legislation. In such a case, bills had to be first

forwarded to the Chambre des Députés. The details for this specific case were set in Art. 47.

99. The Articles 20 and 21 specified the procedure in such a case.100. The provision that the second chamber had to be re- convened within three

months had been taken directly from the Senatorial Constitution (Art. 10). Still, it was possible for the chamber to be dissolved several times in a row, thus effectively preventing parliament from working.

101. The English case of 1688, when the House of Commons, despite its official adjournment, had come together in the form of a private reunion in order to declare the deposition of James II, was another historical example.

102. Articles 28, 30, 31 and 33 specified organisation and function of the Chambre des Pairs. The right to vote in the chamber was only granted to men aged 30 and over (Art. 28). The members of the royal family and the princes obtained their peerage and the right to a seat automatically (Art. 30); their attendance at the sittings, however, required the consent of the king (Art. 31). In case of high treason, the Chamber of Peers acted as a law court (Art. 33). Article 34 laid down that a peer could only be arrested and sentenced by the chamber itself.

103. The articles dealing with election, organisation and competences of the second chamber (Art. 35–53) were collected in a specific section of the Charte.

104. However, the parliamentarians were not elected at the same time. Instead, every year one fifth of the Chamber of Deputies was elected. In 1824 the electoral law was changed insofar as the deputies’ term of office was prolonged to seven years and that all members of parliament were to be elected simultaneously.

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105. Altogether, approximately 0.3 per cent of the whole population met the electoral qualification criteria (see Goldstein 1983, p. 4). In absolute numbers, approxi-mately 100,000 Frenchmen had the right to vote, but only about 16,000 were eligible (see Hartmann 2003 [1985], p. 93). To ensure that in poorer departments a sufficient number of people were eligible, Art. 39 stipulated that in any case the 50 people with the highest tax yield could be elected.

106. The two last articles of the Charte were provisional regulations concerning the second chamber:‘75. Les députés des départements de France qui siégeaient au corps législatif lors du dernier ajournement, continueront de siéger à la chambre des députés, jusqu’à remplacement.76. Le premier renouvellement d’un cinquième de la chambre des députés aura lieu au plus tard en l’année 1816, suivant l’ordre établi entre les séries.’

107. Beugnot refers to the drafts Chancellor Ferrand and Count Dambray had drawn up for the constitutional commission (cf. notes 73, 75 and 77).

108. Rapport du Beugnot au Roi sur la forme de promulgation de la Charte. [AN Papiers Beugnot] 40 AP 7, fol. 114–17. Printed in Rosanvallon (1994, pp. 241–43, citation p. 241).

109. The opportune moment for a restoration of the monarchy was also stressed by Beugnot in his memorandum: ‘Je ne puis trop le répéter: l’autorité royale est populaire en France dans le moment où je parle: tout le monde est las d’être gouverné par de la métaphysique. On veut de la religion, on veut du Roi, on veut une prompte restauration de l’ordre untérieur et plus de débats politiques’ (Rosanvallon 1994, p. 243).

110. See Weber (1980 [1922], pp. 122–4). ‘Keine Herrschaft begnügt sich, nach aller Erfahrung, freiwillig mit den nur materiellen oder nur affektuellen oder nur wertrationalen Motiven als Chancen ihres Fortbestandes. Jede sucht vielmehr den Glauben an ihre‚ Legitimität’ zu erwecken und zu pflegen’ (Weber 1980 [1922], p. 122).

111. What had been shattered in Weberian terms was the traditional source of monarchical legitimacy, based on the ‘Alltagsglauben an die Heiligkeit von jeher geltender Traditionen und die Legitimität der durch sie zur Autorität Berufenen’. On Weber’s three pure types of political rule (‘traditional’, ‘legal’ and ‘charis-matic’), see Weber (1980 [1922], pp. 122–76, citation p. 124).

112. For an exhaustive analysis of changes the notion and concept of ‘monarch’ and ‘monarchy’ had undergone from the Reformation to the post- Napolenic age, see Horst Dreitzel’s monumental two- volume study Monarchiebgriffe in der Fürstengesellschaft, which takes Germany as a case study (Dreitzel 1991).

113. See Sellin (1996, pp. 348–50).114. Saint-Pétersbourg, 6/18 juillet 1814, in Maistre (1860, Vol. 1, p. 379).115. See Maistre (1980 [1797], p. 184).116. Chateaubriand (1814, pp. 67–71, citation p. 69). For Chateaubriand’s constitu-

tional theory and particularly his later work De la monarchie selon la Charte, cf. Section 6.1.

117. Ibid., p. 70f.118. The preamble of the Charte in [BL] 1814–48, Vol. 1, No. 133, pp. 197–9.119. For the standing of France during the Congress of Vienna it was actually

advantageous that Louis’ Charte and not the draft of the Senate – rooted in the principle of popular sovereignty – had become the new French constitution,

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allowing Talleyrand to portray France as a victim of the Revolution (see Sellin 2001, p. 282).

120. Rapport fait au Roi pendant son voyage de Gand à Paris (June 1815), in Pallain (1881, pp. 436–84). Louis XVIII was at that time back from his temporary exile in Ghent after Napoleon had lost the Battle of Waterloo on 18 June 1815.

121. In ibid., p. 464.122. In ibid., p. 467.123. In ibid., p. 469.124. In ibid., p. 475.125. Cf. the title of Sellin (2001): Die geraubte Revolution.126. See Sieyès (1789).127. See, for example, Cunz (1936, p. 104f.).128. Concerning the politico- theoretical implications of the Charte, see also Rials (1987).129. See Kirsch (1999b, p. 323), Beyme (1973 [1970], p. 79).130. See Korioth (1998, p. 37).131. Kägi (1937, p. 94). There are, indeed, no indications in the sources that the King

or members of the constitutional commission had a ‘transfer’ of the English political system to France in mind. The distinctiveness of the French Charte is also underlined by a later quote of Pierre- Paul Royer- Collard, one of the lead-ing figures of the Doctrinaires, who referred to the independent character of the 1814 constitution, and illustrated that a takeover of the English system of government in France would be doomed to failure due to the different histori-cal contexts and, more particularly, the absence of a powerful aristocracy (in Barthélemy 1904, p. 17).

132. See Pufendorf (1672, especially Book 7, Ch. 5, Para. 13; Book 7, Ch. 6, Para. 6–12). On concepts of monarchia limitata from Grotius to Pufendorf, see Dreitzel (1991, Vol. 1, pp. 94–9).

133. See Grotius (1625, especially Book 1, Ch. 3). The term monarchia limitata, how-ever, is not yet explicitly used by Grotius.

134. Bödeker (2002, p. 235).135. See Pufendorf (1672, Book 7, Ch. 6, Para. 10).136. For this view see, for example, Horn (1672 [1664], Book 1, Ch. 10, Para. 7).

3 Constitutional Discourse and Political Reality in Post- Napoleonic Germany

1. In addition, Horst Dippel (1994, p. 12) stresses the need to distinguish ‘political’ and ‘constitutional-law’ (staatsrechtliche) discussions.

2. The notions of ‘constitutional’ and ‘political discourse’ applied here are thus understood in a more down- to- earth way than by authors such as Keith Michael Baker, who defines (historical) ‘political discourse’ as a ‘set of linguistic patterns and relationships that defined possible actions and utterances and gave them meaning’ (Baker 1990, p. 24).

3. Relatively little research has been done on early constitutional discourse in Germany at the turn of the nineteenth century and the role and importance of constitutional models in particular. If such research exists, then it is from a specific perspective (see, for example, Lenk 1969, Unruh 1977, Asmus 1992, Dreyer 1993, Fernández Sarasola 2000, Prutsch 2009b).

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4. For concrete reception and transfer processes in the making of constitutions in Bavaria and Baden, cf. Chapter 4.

5. Cf. also concepts of Germany as a ‘verspätete Nation’ (Plessner 1959 [1935], title). 6. The characterisation of the ideal seventeenth- century civil servant in Germany

as ‘der seinem Fürsten treu ergebene Rat, umfassend gebildet, vor allem aber ein solider Praktiker, persönlich fromm, integer, fleißig, bescheiden und unbestechlich’ (Stolleis 1980, p. 466) can be considered the lasting working ethos of eighteenth- century Beamtentum, too (see also Weber 1994).

7. On German Bildungsbürgertum during the nineteenth century see the four- volume opus Conze and Kocka (1985–92). For its political role in particular see volume four, Politischer Einfluß und gesellschaftliche Formation.

8. On this interrelation see, for example, Gall (2000). 9. See, among others, Wehler (1994 [1973]).10. See, for example, Oz- Salzberger (1995) on the German reception of the Scottish

Enlightenment.11. See Dippel (1994, p. 9).12. German historiography in the second half of the nineteenth and first half of the

twentieth century was aware of this ‘constitutional openness’, even though in the mood of the period, falling back on foreign ‘models’ was interpreted in terms of backwardness and immaturity (see Wilhelm 1928, p. 1f.).

13. On Montesquieu’s reception in Germany during the eighteenth and beginning of the nineteenth century see Herdmann (1990).

14. Heumann von Teutschenbrunn (1760, pp. 66, 287). The title of his work – Vom Geist der Gesetze der Teutschen – gives evidence for the influence of Montesquieu.

15. For example, Neuer Weg zur Unsterblichkeit für Fürsten, in [Berlinische Monatsschrift] 1783–1811, Vol. 5, 1785, pp. 239–47. ‘Will ein Fürste seinen Gesetzen […] eine ungewöhnliche Dauer verschaffen, so muß er dem Staat eine Verfassung geben […] Er muß bewirken, daß von nun an keine Gesetze anders als mit Einwiligung des gesamten Staats gegeben werden können; mit einem Worte, er muß den Staat in eine Republik verwandeln, in welcher das Haupt der regierenden Familie den bloßen Vorsitz hat’ (ibid., p. 241).

16. On the perception of the American Revolution and its impetus in late eighteenth-century Germany see Dippel (1977).

17. See, for example, Dippel (1994, pp. 14–17; 1995, pp. 557–65). In contrast, older literature tended to overestimate the knowledge about and relevance of the American model (see, for example, Angermann 1974, p. 3). By the nineteenth century, an undeniable enthusiasm about the Revolution as such and the practical impact of the American Revolution on German constitutionalism was mixed up (see, for instance, Biedermann 1858, especially p. 485). On the long- term implications of the American Constitution for German constitutionalism see Wellenreuther and Schnurmann (1991), Fröschl (2008).

18. See [Staatsgesetze] 1785.19. See Fay (1925, p. 10).20. One of the most important sources of knowledge about foreign constitutional

texts in the 1780s and 1790s was the Historisch- politische Magazin, edited by Albrecht Wittenberg (see [Historisch- politisches Magazin] 1787–95). The Federal Constitution of 1787, in ibid., Vol. 2, 1787, pp. 911–21, 984–94.

21. See Seidel (1795, citation p. 58).22. See Bülow (1797, especially pp. 90–110, citation p. 92). His study has to be read

against the backdrop of personal and economic setbacks in the United States.

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Critical of the American political system at that time is, for example, also Bülow (1800).

23. Ustawa rzadowa (3 May 1791), in [Ustawa rzadowa] 1991 [1791]. The Constitution had been drafted with the collaboration of Stanisław Małachowski, Ignacy Potocki, Hugo Kołłataj, Stanisław Staszic, Scipione Piattoli and others, and was adopted as a Government Act (Ustawa rzadowa).

24. In [Gazeta Narodawa] 1791, No. 37, 7 May 1791. For Małachowski, the Polish Constitution avoided the faults and errors of both and was adapted as far as possible to the particular circumstances of the country. On the impact of the English and especially the American Constitution on the Polish Constitution, see Unruh (1989, pp. 135–8). On the role of the Polish Constitution in the context of European constitutionalism, see Unruh (1974).

25. Executive power was in the hands of the royal council, the ‘Guardians of the Laws’ (Straz Praw), presided over by the King and comprising five ministers appointed by him. In addition, council members included the Roman Catholic Primate, the Crown Prince, the Marshal of the Sejm and two secretaries. As in Britain, acts of the king required the countersignature of the respective minister. Moreover, by stipulating that the king ‘shall be answerable for nothing to the nation’, a coun-terpart to the English ‘The king can do no wrong’ was introduced.

26. Translations of the Polish Constitution were soon published in a number of German journals (see, for example, [Historisch- politisches Magazin] 1787–95, Vol. 9, 1791, pp. 668–98; [Stats- Anzeigen] 1782–93, Vol. 16, 1791, pp. 328–49).

27. See Biester (1792, pp. 582–4, citation p. 583). As for details on contemporary German opinions see Vahle (1971).

28. Even Jacobites in the Rhineland were in favour of the Polish Constitution, which they regarded, however, only as an intermediary stage towards a radical change of polity and society. Among the few contemporaries who had a more sceptical opinion was J. W. von Archenholz (see, for example, Archenholz 1792, especially p. 31).

29. Outside Germany, too, conservatives paid tribute to the new constitution. In his Appeal from the New to the Old Whigs, Edmund Burke celebrated the Polish Constitution as ‘regular progress, because founded on similar principles, towards the stable excellence of a British Constitution’ (Burke 1791, p. 128). The estab-lishment of a hereditary monarchy and the balance between executive and the bicameral legislative branch obviously fit into Burke’s own constitutional concept. That the Constitution actually referred to the revolutionary principle of the sovereign nation by declaring that ‘all authority in human society takes its origin in the will of the people’ (Art. V) was – deliberately or not – ignored by Burke and German conservatives.

30. In post- Napoleonic discourse, the Constitution of 1791 was practically no longer present.

31. See, for example, [Historisch- politisches Magazin] 1787–95, Vol. X, 1791, pp. 172–214, 329–56.

32. See Burke and Gentz (1991 [1793]). At the beginning of the 1790s, Gentz (1764–1832) had not yet become a distinct conservative. On the contrary: inspired by his reading of Rousseau, he was enthusiastic about the Revolution and defended the Declaration of the Rights of Man and of the Citizen in his first work Ueber den Ursprung und die obersten Prinzipien des Rechts (Gentz 1791).

33. See Humboldt (1792).34. Ibid., p. 86.

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35. Ibid., p. 88f.36. As with the case of the American Federal Constitution, the Polish 3 May

Constitution and the French Constitution of 1791, the subsequent French revo-lutionary constitutions and constitutional drafts were also almost immediately translated into German. See, for example, the Girondist constitutional draft of 1793 in [Deutsches Magazin] 1791–1800, Vol. 5, 1793, pp. 618–716. The Jacobin Constitution of 1795 in ibid., Vol. 6, 1793, pp. 1265–93; [Historisch- politisches Magazin] 1787–95, Vol. XIII, 1793, pp. 521–25, 648–68. The Constitution of 1795 in ibid., Vol. XVIII, 1795, pp. 244–306. French parliamentary debates on constitutional questions are also widely quoted in German journals of the time. See, for example, ibid., Vol. XIII, 1793, pp. 287–306, 352–78, 484–521 (speech by Condorcet on the Girondist constitutional project); ibid., Vol. XVIII, 1795, pp. 59–91, 113–70 (speech by Boissy d’Anglas on the new Constitution); ibid., Vol. XVIII, 1795, pp. 338–69 (report of Sieyès in Parliament on the Constitution of 1795). On French influences on German constitutionalism between 1789 and 1815, see Siegmund (1987).

37. See the perception of constitutionalisation processes in Switzerland (Meiners 1792; Eggers 1799).

38. See [Vollendete Verfassung] 1793.39. See Erhard (1795). Erhard argued that the soul of modern constitutions was the

principle of universal justice, based on law and inalienable human rights. Thus, he distanced himself clearly from defenders of the traditional order and the idea of enlightened absolutist reforms, but also from the Jacobin ideology of an unre-stricted ‘rule of virtue’. Regarding the political and constitutional ideas of the Jacobin movement in Germany during the 1790s, see Lamprecht (2001).

40. See, for example, Gentz’s defence of what he called System der politischen Wechselwirkung (Gentz 1795), revealing the defects of Sieyes’ political philosophy and essentially directed against the Constitution of 1795.

41. It is symptomatic that in 1792 the Gesellschaft der Wissenschaften zu Erfurt adver-tised a prize for the ‘beste populäre Schrift, wodurch das deutsche Volk von den Vortheilen seiner vaterländischen Verfassung belehrt und für die Uebel gewarnt würde, zu welchem Überspannte Begriffe von ungemessener Freiheit und ide-alischer Gleichheit führen’ (in [Wirksamste Mittel] 1794, p. 400).

42. On the problem of continuity regarding political representation at the turn of the nineteenth century, see Vierhaus (1977).

43. See, for example, Häberlin (1793). Among the studies dealing with the Constitution of the Reich is also Hegel’s early work Die Verfassung Deutschlands, written between 1800 and 1802 (Hegel 1999 [1800–2]). An overview on the debates from the 1760s onwards is Düwel (2008).

44. These drafts, six altogether, are printed and analysed in Dippel (1991; see also Dippel 1995, pp. 566–70). Critical to Dippel’s conclusions: Neugebauer-Wölk (1992).

45. One of the advocates of partial reforms was Karl von Dalberg, who in 1802 became the last Archbishop- Elector of Mainz and Arch- Chancellor of the Empire. See his pamphlet Von Erhaltung der Staatsverfassungen (Dalberg 1795).

46. The question of whether the old Constitution of the Reich could be rekindled was generally answered in the negative (see, for example, Schue 1809). Instead, the Confederation of the Rhine was considered a possible starting point for a new Reichsverfassung (see, for example, Gosch 1809).

47. See, for example, [Wohl der Völker] 1809.

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48. On the ‘national awakening’ of Germany during the Befreiungskriege, see Wilke (1996).

49. The exception proves the rule, though, and there were indeed a number of German authors praising Napoleonic constitutionalism. See Buchholz (1804), expressing admiration for Napoleon’s non- constitutional action, which would make him a true symbol of ‘sovereignty’.

50. In Germany, the Code Napoléon was enacted in those areas annexed by France in the Peace of Lunéville and in the northeastern territories incorporated into the Empire in 1811, but also in several member states of the Confederation of the Rhine (for example, Westphalia and Berg). In other member states, such as Baden, the Code was adopted in a modified form. On the introduction in the Confederation of the Rhine, see Fehrenbach (1983 [1974]). It is characteristic that overall the Code Napoléon and its enactment attracted more attention than the release of new constitutions in several German states. Of the numerous con-temporary contributions on the Code, only a few examples may be mentioned: [Ansichten] 1808, Goßler (1809a, 1809b), [Einführung Berg] 1809, [Organischer Charakter] 1811, [Worte über die Einführung] 1811.

51. For French influences on these reform projects, see Fehrenbach (1981).52. In contemporary writing there was already the idea that administrative and

constitutional reforms had to go hand in hand, explicitly stated in articles such as Welche Veränderungen sind in der Preuß ischen- Staatsverfassung und Verwaltung nothwendig? in [Neue Feuerbrände] 1807–8, Vol. 2(4), 1807, pp. 16–81; Vol. 3(7), 1807, pp. 1–26.

53. Proclamation an die Deutschen (25 March 1813), in Huber (1978 [1961], p. 81f.). This proclamation had been preceded by a declaration of King Friedrich Wilhelm III one week before: An Mein Volk! (17 March 1813), in [Schlesische Zeitung] 1766–1819, 20 March 1813.

54. See Grimm (1988, p. 62).55. Dahlmann (1815, p. 47).56. A good overview of German political thought during the Restoration period is

Faber (1981). On the predominant paradigm of a monarchical- constitutional state in the period, see Boldt (1975).

57. See [Rheinischer Merkur] 1814–16. The intense earnestness of the paper, the bold outspokenness of its hostility to Napoleon, and its fiery eloquence secured the Rheinischen Merkur almost instantly a position and influence unique in the history of German newspapers. Napoleon himself is said to have called the news-paper – half contemptuous, half respectfully – la cinquième puissance fighting against him.

58. See, for example, Agulhon (1977 [1970]), McPhee (2002).59. See Faber (1981, p. 261). Caution regarding the evaluation of ‘public constitutional

discourse’ in post- Napoleonic Germany is also expressed by Planert (2007, p. 26).60. The subsequent division into ‘conservative’ vs. ‘liberal’ is conventional and cer-

tainly worthy of refinement, but might serve its purpose for the needs of this study. Despite the predominant ‘preservative mood’ among most intellectuals of the time, it seems to be daring to characterise the whole political landscape of the Vormärz as ‘conservative’ only (see, for example, Gerhardt 2007, distinguishing just different conservative groups).

61. Görres increasingly became a Romantic conservative. In particular, his Koblenzer Adresse of 1818, directed to the Prussian King, reveals Görres’ conservative con-stitutional ideas.

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62. In [Deutsche Staatsanzeigen] 1816–18, Vol. 1, 1816, p. 10f.63. Besides these two conservative groups, namely Romantic conservatives and state-

legitimists, ‘ patrimonial- rational conservatives’ was a third one. This branch was most prominently embodied by Ludwig von Haller and his influential Restauration der Staats- Wissenschaft (Haller 1816–25).

64. On nineteenth-century German semantics of Liberalismus in a comparative European perspective, see Leonhard (2001, for the period until 1820 pp. 185–208).

65. On the role of Benjamin Constant for (liberal) political conceptions during the Vormä rz- period, see Gall (1963). On Constant’s importance for continental European political thought, see Weber (2004).

66. Heinrich Friedrich Karl Reichsfreiherr vom und zum Stein (1757–1831) became famous for his sweeping reforms in Prussia after the Peace of Tilsit (1807), which were implemented together with Karl August von Hardenberg (1750–1822). After his enforced resignation in 1808 and his retirement to the Austrian Empire, vom Stein was summoned to the Russian Empire by Tsar Alexander I in 1812. After the Battle of Leipzig in 1813, Stein became head of the council for the administration of the re- conquered German countries. For the history of vom Stein’s life still crucial is Pertz (1849–55). See recently also Duchhardt (2007).

67. Only after 1830 and under changed societal and political prerequisites did the ‘national element’ regain importance for the constitutional movement, especially among liberals and radicals (see Faber 1981, pp. 272–5).

68. What was stressed was the French nation’s innate deceitfulness and unrestricted striving for power, resulting in the concept of France as the traditional enemy and adversary of the German nation (Erbfeind). See, for example, Friede mit Frankreich! Aber auch Versöhnung??, in [Teutsche Blätter] 1814, No. 74, 25 June 1814, pp. 271–4. See also Teutschlands Ansprüche, in [Rheinischer Merkur] 1814–16, No. 76, 23 June 1814, p. 1f., where France is qualified as ‘teutscher Erbfeind’ (ibid., p. 1). See also Jeismann (1996).

69. See Wie ward Frankreich unter Napoleon regiert?, in [Minerva] 1792–1858, Vol. 3, 1814, pp. 302–14; Unwillen der Französischen Republikaner über die neue Konstitution [that is the Constitution of 1799; MJP], in [Minerva] 1792–1858, Vol. 2, 1815, pp. 483–95.

70. Regarding French and British influences on German Vormä rz- liberalism, see Eyck (1957).

71. In the achievements of the Revolution, Rotteck saw the triumph of the law of reason and the inherent rights of men. Rotteck was especially enthusiastic about the feats of the first stage of the Great Revolution, embodied by the 1791 Constitution (see Rotteck 1834 [1813–27], Vol. 9, especially p. 115).

72. Even Johann Christoph von Aretin, though collaborating with Rotteck, qualified the Constitution of 1791 in his Staatsrecht der konstitutionellen Monarchie as a ‘verunglückter Versuch’, originating ‘aus dem eitlen Verlangen, selbst Muster sein zu wollen’. Aretin and Rotteck (1824–8, Vol. 1, 1824, p. 66).

73. See Asmus (1992).74. For Arndt, due to the ‘überspannten Ideen von menschlicher Freiheit und von

Staatsverfassung und Gesetzgebung’ (Arndt 1814, p. 491), the Constitution of 1791 had to end in discord and misery. On Arndt’s anti- French attitude, see Kohn (1949, p. 795f.).

75. See Valjavec (1951, p. 177).76. See Dippel (1994, pp. 17–31). See also Angermann (1974), Dreyer (1993), Krüger

(1996). In 1814–15, neither the Federal Constitution nor the state constitutions were available in new editions.

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77. See Depkat (1998).78. Comments of Leopold von Henning on Jefferson’s A Manual of Parliamentary

Practice for the Use of the Senate of the United States, translated into German in 1819. (in Jefferson 1819, p. 311).

79. See Pölitz (1817–25, Vol. 1, 1817, p. 31f.).80. See ibid., p. 53. The first of the 12 Constitutional amendments originally submitted

to the state legislatures for ratification by the First Congress on 25 September 1789, namely the ‘Congressional Apportionment Amendment’, is technically still pending before state lawmakers. The second amendment on ‘Variance of Congressional Compensation’ was only ratified in 1992 as the 27th Amendment of the United States Constitution.

81. That is, the 11th (13th proposed) amendment on immunity of states from suits from out- of- state citizens and foreigners not living within the state border (enacted 7 February 1795) and the 12th (14th proposed) amendment on the revision of presidential procedures (enacted 15 June 1804). On Pölitz’s mistakes regarding the constitutional amendments, see also Dippel (1994, p. 25), who, by mistake, dates the 11th amendment back to 1798 instead of 1795.

82. Görres considered a ‘Bundesstaat in den Formen des Amerikanischen der Gegenwart’ suitable for Germany, arguing that a centralised state would not be workable (Görres 1819, p. 203).

83. See Mohl (1824). A planned second volume on administrative questions was never published.

84. In later studies, Mohl became even more explicit when he remarked in 1835 that ‘die positive Nachahmung der amerikanischen Einrichtung’ was by no means advisable (Mohl 1835, p. 23).

85. For further information on the pre-1812 constitutional debates, see García Monerris (2003).

86. The Constitution of 1812 had been preceded by the Bonapartist ‘Statute of Bayonne’ (6 July 1808), which, however, never came into force due to Joseph Bonaparte’s authoritarian politics and the fact that Spain was in a state of war. On the constitutional- historical role of the Statute, see Solé Tura (2005 [1977], pp. 9–13), Bernecker and Brinkmann (2006, pp. 606–10).

87. A recent edition of the constitution, including the introductory Discurso preliminar, is Fernández García (2003). The length of the text reflects the ambition to include as many legal regulations as possible into the Constitution, cf. the detailed electoral law (Art. 27–103). Still, in contrast to the French Constitution of 1791, a catalogue of fundamental rights was missing.

88. The king had, among other things, only had a suspensive veto (cf. Art. 144–9).89. On the transnational implications of the Spanish Constitution, see Badía (1963,

1991).90. In 1814, translations were not only published in Paris, but also in Rome and

Milan. In 1820, a number of new editions followed, for example in London, Naples, Piedmont and Lucca (see Badía 1963, p. 154). On the perception of the Spanish Constitution in Germany, see especially Dippel (1999).

91. See [Rheinischer Merkur] 1814–16, No. 34, 29 March 1814, p. 3f.; No. 35, 31 March 1814, p. 3f.; No. 36, 2 April 1814, p. 3.

92. Spanien und Ferdinand VII, in ibid., No. 66, 2 June 1814, p. 1f., citation p. 1.93. See, for example, Sebald Brendel’s opinion that the Constitution of 1812

‘dem Stand der spanischen Kultur nicht ganz angemessen [ist]’ (Brendel 1817, p. 160).

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94. See Die neue, von den Cortes gegebene, spanische Konstitution, im Auszuge, in [Die Zeiten] 1805–20, Vol. 39, August 1814, pp. 163–85, especially p. 169. The actual summary of the constitutional text (pp. 170–85) was preceded by an introduction (pp. 163–70). For Voß, the Cortes had merely seized its political opportunity. Under these circumstances, the reaction of the King was foresee-able, too: ‘es kann nicht befremden, daß der König, da er sich fähig dazu fühlte, sie [the Constitution; MJP] verwarf; und er handelte hierin konsequenter, wie die Cortes’ (ibid., p. 169).

95. See Dahlmann (1815). The Kieler Blätter were one of the most influential organs of liberalism in northern Germany and beyond, published by a number of professors of the University of Kiel, among them Dahlmann, Niels Nikolaus Falck and Carl Theodor Welcker. For more information, see Vogel (1989).

96. Dahlmann (1815, p. 58). 97. See Benzenberg (1816, p. 315f.). 98. [Spanien] 1815, p. 58. The author had no doubt that ‘die Konstitution vom

Könige ohne Nachtheil hätte beybehalten werden können’ (ibid., p. 63). 99. Initiated by the Revolution, a number of new editions and contributions were

published, for example Politische Konstitution der spanischen Monarchie, in [Die Zeiten] 1805–20, Vol. 62, May 1820, pp. 264–92; June 1820, pp. 380–404; July 1820, pp. 66–89. In response to this growing interest, conservatives discovered the Spanish Constitution to be an object of hate. See especially Karl Ludwig von Haller’s sharp criticism in his work Ueber die Constitution der spanischen Cortes (Haller 1820). Nonetheless, the debates on the Cádiz Constitution never reached an intensity like in Naples- Sicily or Piemont, where the Spanish model played a central role in the constitutionalisation processes in 1820/1821 (see Daum 1999).

100. The Constitution was signed and dated 17 May (see [Grundlov] 1968 [1814]).101. As for the genesis of the Constitution of 1814 and the role of the Storting see,

for example, Höjer (1882). In peace negotiations, Christian Frederik had agreed to relinquish claims to the Norwegian crown and return to Denmark if Sweden would accept the Norwegian Constitution and a loose personal union. This union between Sweden and Norway lasted until 1905, when Norway declared the union dissolved.

102. See Andenæs (1976), Unruh (1989, pp. 141–7). On the role of the Eidsvoll Constitution as a European constitutional model, see Unruh (1977).

103. Cf. § 50.104. Cf. in particular § 108 and § 109.105. Cf. § 96, § 99, § 100, § 101, § 104.106. The procedure for overriding a royal veto followed the example of the French

1791 Constitution and the Spanish 1812 Constitution: a bill was considered sanctioned by the king if it had been passed by parliament in three readings.

107. Cf. § 87 and § 88. Facsimiles of the original text in Jägerskiöld and Kroon (1941). On the history of the 1809 Constitution, see Lagerroth (1942) and Karlbom (1964). On its origin, see Rönström (1997).

108. See Konstitutionen. Grundgesetz des Königreichs Norwegen, in [Allgemeine Staats- Korrespondenz] 1814–15, Vol. 3, 1815, pp. 128–39, pp. 415–35. Subsequent to the full first version of 17 May 1814, also the revisions of 4 November 1814 were printed (ibid., pp. 431–5).

109. That is also true for the Polish Constitution of 1791, which does not seem to reappear at all in German constitutional discourse around 1815, despite its modest perception in the 1790s (cf. Section 3.1).

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110. George Dyer observed wryly in 1812: ‘We have at present three predominant parties in the country […] Yet they all talk of rallying round the Constitution, like different religious sects, who all appeal to the same code.’ (Dyer 1812, p. 4).

111. In contrast to older literature, more recent studies reveal that the English model played an important role among liberals throughout Germany.

112. Dahlmann (1815, p. 57).113. ‘zwei Kammern von wesentlich verschiednem und doch in der Erhaltung

des Ganzen wiederum zusammenschlagenden Interesse, die einen [House of Lords; MJP] durch erblichen Rang, das Alterthum des Geschlechts und großen Landbesitz an die Erhaltung des Herkömmlichen und Gültigen gefes-selt, die andern [House of Commons; MJP] durch mannichfaltige Einsichten, Gelehrsamkeit und Geschäftserfahrung geeignet, den Gang der Zeit und die nothwendigen Forderungen des Augenblicks klar aufzufassen’ (ibid., p. 57).

114. Ibid., p. 58.115. On the influence of English constitutional practices on German liberals, see

Wilhelm (1928). See also Eyck (1957).116. Grundlagen der englischen Verfassung und deren Anwendbarkeit in Teutschland!, in

[Neuer Rheinischer Mercur] 1816ff., No. 131, 17 August 1817, p. 527f.; No. 132, 19 August 1817, p. 529f.; citation p. 527f. Originally printed in Stellen aus ältern englischen Parlamentsreden (Beschluß), in [Kieler Blätter] 1815–19, Vol. 3, 1816, pp. 370–74, citation p. 370.

117. Defects of political practice in Great Britain were widely discussed in the press and in political journals. See, for example, Die englischen Minister in der Klemme (in [Die Zeiten] 1805–20, Vol. 47, August 1816, pp. 270–300); Politische Krämpfe und Zuckungen des Staatskörpers Großbritannien (in ibid., Vol. 50, June 1817, pp. 356–81; Vol. 51, September 1817, pp. 363–82; Vol. 52, October 1817, pp. 117–40; Vol. 52, November 1817, pp. 169–204).

118. See, for example, Freiherr vom Stein to Princess Wilhelm; Cappenberg, 20 November 1828 (in Pertz 1849–55, Vol. 6, pp. 626–8).

119. [VVLKB] 1815–19, Abt. 6, 1815, p. 7f.; Stein’s friend, the diplomat Hans von Gagern, wrote in 1823 in the Allgemeine politische Annalen that ‘Großbritanniens Verfassung unstreitig Vorbild und Ziel geworden [ist]’ (Gagern 1823, p. 233).

120. Blackstone and Montesquieu’s works were well known due to extracts being frequently published in the press. See, for example, [Neuer Rheinischer Mercur] 1816ff., No. 130, 28, September 1818, column 813f., with an excerpt from Esprit des lois.

121. See Wilhelm (1928, p. 16).122. See Delolme (1771).123. Contemporary esteem for Delolme was well expressed by Dahlmann in 1818:

‘Der Genfer De Lolme steht neben Locke, Blackstone und Burke unter Englands constitutionellen Classikern.’ Stufen der Gründung der Englischen Staatsverfassung. Auszug aus De Lolmes drei ersten Capiteln, in [Kieler Blätter] 1815–19, Vol. 5, 1818, pp. 458–71, citation p. 458.

124. Constant (1814, p. 4); cf. Section 6.1.125. See Schmalz (1806).126. See Vincke (1815). In his treatise, Vincke praised the self- government of the

English counties.127. ‘unsere Hoffnung [geht] nicht soweit, daß wir der Einführung und Dauer einer

englischen Freiheit und Verfassung in Deutschland entgegensehen: diese ist eben eine wahrhaft englische, welcher wir bei unserem politischen Sündenfalle

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nicht fähig sind, und welche sogar die wenigsten Deutschen begreifen’ (Rudhart 1816, Vol. 1, p. xvii). Nonetheless, Rudhart himself greatly admired the English Constitution for its gradual evolution.

128. Rehberg (1793, Vol. 1, p. 56).129. Vincke (1815, p. 6).130. See ibid., p. 6f.131. See, for example, Friedrich Ancillon’s Ueber die Beurtheilungen der Englischen

Verfassung, in Ancillon (1828–31, Vol. 1, pp. 401–27).132. The superior strength of parliament was considered a characteristic and non-

transferable element of the English Constitution (see Stahl 1845, p. 34f.).133. Rotteck’s criticism of British constitutional practices and theories hinged on the

charge that the English Constitution was the result of events, not of free reason. Therefore he considered it a ‘patchwork’ (see Rotteck 1841–3, Vol. 2, p. 98). Regarding English political institutions, Rotteck was especially censorious of the British parliament which he considered to be an outgrowth of a strange electoral system, which would mock all rational concepts of popular representation (ibid., Vol. 1, p. 292). It can reasonably be argued that Rotteck’s Anglophobe attitude was proportionate to his Francophile leanings and that the one conditioned the other. But in this as in many other respects, he differed considerably from his fellow liberals who were more often than not Anglophile and Francophobe.

134. See, for example, Filangieri (1780–5), Destutt de Tracy (1819).135. Nachahmung englischer Institute in Teutschland, in [Neuer Rheinischer Mercur]

1816ff., No. 37, March 1817, p. 151f.136. Almost all important German newspapers reported – with a delay of several days –

in detail on the April events in France. See, among many others: [Teutsche Blätter] 1814, No. 42, 11 April 1814, I, pp. 179–84; No. 43, 14 April 1814, I, pp. 185–90; No. 46, 21 April 1814, pp. 199–202; No. 46, 23 April 1814, I, p. 203f.; [Rheinischer Merkur] 1814–16, No. 40, 11 April 1814; No. 41, 13 April 1814.

137. [Rheinischer Merkur] 1814–16, No. 42, 15 April 1814, p. 2. The draft was called ‘das abgeschmackteste, lustigste, untauglichste und nichtigste, was je in dieser Aer die Welt gesehen’.

138. See ibid., No. 43, 17 April 1814.139. See ibid., No. 42, 15 April 1814, p. 3, following the argument of Nicolas

Bergasse‘s influential pamphlet Réflexions sur l’Acte constitutionnel du Sénat (Bergasse 1814). In general, the German press was remarkably well informed about French publications on the Senatorial draft, which were largely negative. See, for example, [Rheinischer Merkur] 1814–16, No. 57, 15 May 1814, p. 1f.; No. 65, 31, May 1814, p. 1f.

140. The Declaration of Saint-Ouen itself was positively evaluated in Germany. See, for example, [Rheinischer Merkur] 1814–16, No. 54, 9 May 1814, pp. 1–3.

141. See, for example, Ueber die französische Konstitution vom Jahr 1814. von Gregoire, vormaligem Bischofe von Blois, Senator etc. in [Europäische Annalen] 1795–1820, Vol. 2(6), 1814, pp. 312–88. Detailed accounts of the French Restoration in journals followed over the next few months. See, for example, Wiedereinsetzung und Rückkehr Ludewigs XVIII, in [Die Zeiten] 1805–20, Vol. 41, February 1815, pp. 195–222; Vol. 41, March 1815, pp. 336–68.

142. See, for example, the Teutschen Blätter, in which the whole Royal Session of 4 June, including the speeches of King and Chancellor, was translated: [Teutsche Blätter] 1814, No. 69, 13 June 1814, I, p. 296; No. 70, 16 June 1814, I, pp. 297–302; No. 71, 18 June 1814, I, pp. 303–6.

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143. See, for example, [Charte constitutionnelle 1814] 1814a. Bilingual versions were also printed in various journals, for example, [Die Zeiten] 1805–20, Vol. 42, April 1815, pp. 113–35.

144. See [Charte constitutionnelle 1814] 1814a (Constitutions-Urkunde), 1814b (con-stitutionelle Charte); [Charte constitutionnelle 1830] 1830a, 1830b (Verfassungs-Urkunde) and 1830c (constitutionelle Charte and Grundgesetz).

145. Die neue Constitution, in [Rheinischer Merkur] 1814–16, No. 72, 15 June 1814, pp. 1–3, citations p. 1.

146. Ibid., p. 2.147. See ibid., No. 309, 5 October 1815, p. 2: ‘die Sache der Legitimität verlangte, daß

Ludwig XVIII. seine Krone wieder erhielt. Niemand behauptet das Gegentheil, die Sache der rechtmäßigen Fürsten ist die heiligste unter Allen, sie ist die aller Völker, denn ihre Ruhe hängt davon ab’.

148. See ibid., No. 44, 19 April 1814, p. 3: ‘Er [Louis XVIII; MJP] hat der Gesetzgebung der alten und neuen Völker ein tiefes Studium gewidmet. Seine politischen Grundsätze sind auf die liberalsten Ideen und auf die eifrigste Liebe des Menschengeschlechts gegründet. Sein Aufenthalt in England hat seine Grundsätze noch mehr befestigt; derselbe brachte eine standhafte Vorliebe für diejenigen Regierungen hervor, welche die öffentliche Freyheit und die indivi-duelle Sicherheit eben so sehr wie die Macht des Regenten garantiren.’

149. [Teutsche Blätter] 1814, No. 70, 16 June 1814, I, p. 300, footnote f. It was argued that a plebiscite would have legitimised the political system, as there were doubts about the binding force of the Charte for Louis’ successors, taking the Constitution’s character as an act of royal favour into account.

150. Die neue Constitution, in [Rheinischer Merkur] 1814–16, No. 72, 15 June 1814, pp. 1–3, citation p. 3.

151. Against the background of the Hundred Days, a minority group of German intellectuals, such as Christian Daniel Voß, considered – in an idealising manner – a return to the ‘true’ old constitution of the French Kingdom the best alterna-tive. See Die neue Königliche französische Konstitution, in [Die Zeiten] 1805–20, Vol. 42, April 1815, pp. 103–46, especially pp. 141–6.

152. See, for example, [VVLKB] 1815–19, Vol. 44, 1819, p. 52f.153. Benzenberg (1816, p. 242). Karl Wilhelm Koppe, another prominent liberal in

the Rhineland, flatly repudiated any constitution based on French models. In a spiteful attack on French theories he remarked that there could be no intention ‘die Reihe jener sophistischen Verfassungs- Spekulanten zu verlängern, welche von Jean- Jacques [Rousseau] bis auf jenen Benjamin [Constant] […] unser theorien- fruchtbares Zeitalter […] ausgebrütet hat’ (Koppe 1815, p. 46).

154. Resolution of the faction of the Altrechtler in Würtemberg (1815), quoted in Eyck (1957, p. 333).

155. See [Grondwet] 1815, [Loi fondamentale] 1815.156. Dutch constitutional law experts are particularly keen on stressing that the

Constitution of 1814/1815 was less a unilateral act of royal grace than a contract (see, for example, Pot and Donner 2001 [1940], p. 413).

157. Among other things, in the Grondwet the right of initiative was not only a prerogative of the king (Art. 70, 106), but also of the States- General, namely the lower chamber (Art. 113, 114).

158. Chapter 2 of the Constitution was dedicated to the role of the king in the political system. Its sixth section explicitly dealt with ‘royal prerogatives’ (Art. 56–70).

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159. Those guarantees and rights were not part of one separate chapter, but split up.160. Fundamentalgesetz des Königreiches der Niederlande vom 24. Aug. 1815, in Pölitz

(1817–25, Vol. 2, 1817, pp. 494–534, citation p. 494). See also ibid., Vol. 1, 1817, p. 506.

161. [Rheinischer Merkur] 1814–16, No. 34, 29 March 1814, p. 3.162. It is significant that the political system of the United Netherlands as such

was rarely touched upon in German newspapers of the time. An exception is, for example, the article Ueber die politische Lage des Königreichs der Niederlande, in [Neuer Rheinischer Mercur] 1816ff., No. 152, 16 December 1818, columns 1157–63.

163. Konstytucja Królestwa Polskiego, in [DPKP] 1815ff., Vol. 1, 1815, pp. 1–103.164. Charte constitutionnelle du royaume de Pologne de 1815, in Chod’zko (1862,

pp. 707–24).165. His personal experience with both the French Senatorial Constitution and

the Charte following the deposition of Napoleon (cf. Section 2.1.1) obviously left a lasting impression on Alexander I. The actual preparations of the Polish Constitution were handed over to a commission appointed by the Tsar, which finished their activities in November 1815, when Alexander was on his way back to St. Petersburg via Warsaw.

166. Cf. Art. 31 and title four on the ‘National Representation’ (Art. 85–137), particu-larly Art. 121 and 131. According to the Constitution, parliament was composed of the king, the Senate and the Chamber of Deputies (Art. 31 and 86). Deputies, numbering 128 (Art. 118), were elected for six years, with one third of them elected every second year (Art. 120). They had legal immunity (Art. 89). In contrast to the French Charte, the Polish Constitution imposed an upper limit on the number of senators, namely half of the deputies in the second chamber, that is 64 (Art. 109).

167. Wiederherstellung und Konstituirung des Königreichs Polen, in [Die Zeiten] 1805–20, Vol. 47, September 1816, pp. 359–92, the constitutional text as such on pp. 366–92.

168. See ibid., p. 392. In the first edition of Pölitz’s collection of constitutional texts, too, any critical remark regarding the Polish Constitution of 1815 was miss-ing. The constitutional text was introduced only by a few general remarks. See Constitution des Königreiches Polen vom 27. Nov. 1815, in Pölitz (1817–25, Vol. 2, 1817, pp. 48–68).

169. See, for example, Debut des Kaisers Alexander als Königs von Polen, in [Die Zeiten] 1805–20, Vol. 58, May 1819, pp. 279–301. In the article, Poland’s ‘liberale Institutionen’, opposing the ‘umstürzenden Lehren, die in unseren Tagen die gesellschaftliche Ordnung, mit einer fürchterlichen Katastrophe bedro-hten’, were praised (p. 282). However, there was scepticism as to whether the Constitution could guarantee durable stability, the Constitution of 3 May 1791 being a warning example. See ibid., p. 294.

170. In [Rheinischer Merkur] 1814–16, No. 66, 2 June 1814, p. 1.171. Die künftige teutsche Verfassung, in ibid., No. 104, 18 August 1814, pp. 1–3, cita-

tion p. 1. With regard to a future German Constitution, such reasoning implied a strong federal state, ‘um der Gewalt und Ränkesucht Frankreichs zu widerste-hen’. The wish was that Germany kept all its rulers, but that ‘Eine feste heilige Grundverfassung die diesen Regenten untergebenen Länder zu einem schönen harmonischen Ganzen [vereinige].’ Deutschlands Ansprüche, in ibid., No. 76, 23 June 1814, p. 1f.

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172. See, for example, Die künftige teutsche Verfassung (Fortsetzung), in ibid. No. 106, 22 August 1814, p. 1f.

173. Deutsche Staatssachen. Was ist das Wenigste, was das Volk bey Errichtung einer ständischen Verfassung verlangen kann? in [Allgemeiner Anzeiger] 1806–29, No. 197, 31 July 1815, columns 2065–71, citation column 2071.

174. ‘In allen Bundesstaaten wird eine Landständische Verfassung statt finden.’ Deutsche Bundesakte vom 8. Juni 1815, in Huber (1978 [1961], pp. 84–90, citation p. 88).

175. Was ist eigentlich landständische Verfassung? und wer müßte und sollte sie entwerfen?, in [Neuer Rheinischer Mercur] 1816ff., No. 103, 28 June 1818, pp. 411–14, citation p. 411.

176. The practical procedure in most pre- revolutionary systems of corporative repre-sentation was that, first of all, an agreement within the various estates had to be reached. To this end, a majority vote was used. Afterwards, however, the votes of the different estates were compared, and a formal decision only followed in the case of unanimity.

177. In this respect, the French States- General is a classical example. Most of the Diets (Landtage) of the German states had similar rights. On concepts of landständische representation in the late period of the Empire, see Stollberg- Rilinger (1999).

178. Deutsche Staatssachen. Ueber Landstände, in [Allgemeiner Anzeiger] 1806–29, No. 269, 12 October 1815, columns 2811–21; No. 270, 13 October 1815, columns 2825–30; No. 271, 14 October 1815, columns 2833–9, citation column 2827.

179. Ibid., column 2829.180. In most European countries, the peak of political power for the estates had been

reached between the fifteenth and seventeenth century.181. On the interpretation of constitutionalism as the integrative centre of this

neuständische Gesellschaft, see Blänkner (1998a, 1998b). Regarding the question of continuities and differences between altständischer Verfassung and German constitutions of the Vormärz see, among others, Vierhaus (1977), Press (1980), Weis (1982). Krüger (2003) offers a historical overview of origins, variations and changing interpretations of landständische Verfassung.

182. On changes of the ‘Modern World-System’ from the 1730s to the 1840s in a global context, see Wallerstein (1989).

183. ‘Wenn die Landstände eine wahrhaftige Volksvertretung seyn sollen, so scheint es vor Allen unumgänglich nothwendig, daß sie vom ganzen Volk (im poli-tischen Sinn) gewählt werden; und von dieser Forderung kann man, meine ich, auf keine Weise abweichen.’ Der Landstände Wesen und Zweck. Leichte Bemerkungen, als Einleitung, in [Allgemeines Staatsverfassungs- Archiv] 1816–17, Vol. 1, 1816, pp. 7–35, 187–220, citation p. 198. The most illustrative example of the replaceability of the terms are the German constitutional texts after 1814/1815. Whereas in the small Principality of Schwarzburg- Rudolstadt a ‘representation of the people’ was introduced in 1816, to which delegates of the three estates were sent, Baden’s representative system of 1818 was called a landständische Verfassung.

184. Patent vom 2. September 1814, in Pölitz (1817–25, Vol. 2, 1817, pp. 295–305). The Constitution had the character of a monarchical patent. The text started with a long preamble, in which the motives for the release of the Constitution were explained in detail, followed by the constitutional provisions as such, which were subdivided into ten extensive articles.

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185. See, for example, Einige leichte Anmerkungen zu der neuen Staatsverfassung des Herzogthums Nassau, in [Rheinischer Merkur] 1814–16, No. 119, 17 September 1814, p. 1f.

186. See ibid., p. 2. The first chamber (Herrenbank) consisted of the princes of the ruling dynasty and nobles (Art. 4). The second chamber (Versammlung der Landesdeputirten), with 22 members, consisted of three representatives of the clergy, one representative of the higher educational system and three represent-atives of commerce. The rest of its members were large landowners (Art. 6).

187. See Die Konstitution des Herzogthums Nassau, in [Rheinischer Merkur] 1814–16, No. 118, 15 September 1814, p. 1f. It was argued that the ‘trendy’ English- like division of the Landtag into two chambers was useless, particularly in small countries (see ibid., p. 2).

188. For details, see Gerner (1989).189. In general, there was more sympathy for the position of the Landstände than

for the crown. See, among many other articles: Noch eine Erörterung des königlich württembergischen Verfassungs- Entwurfes, in [Rheinischer Merkur] 1814–16, No. 202, 3 March 1815, pp. 1–3.

190. In particular, the landständische constitution of the Grand Duchy of Saxe- Weimar- Eisenach is worth mentioning. Proclaimed on 5 May 1816, it received great attention and was even praised as ‘ein Muster solcher Verfassung für alle teutsche Bundesstaaten’. Sachsen- Weimar. Publicationspatent wegen der Landstände, nebst Auszug aus der Constitution, in [Neuer Rheinischer Mercur] 1816ff., No. 2, 2 July 1816, p. 1f., citation p. 1. Yet also the constitutional projects in other smaller German states such as the Principality of Waldeck, the Duchy of Saxe- Hildburghausen or the Duchy of Cleve attracted attention.

191. This ambivalence, however, was not seen as such by contemporaries, notwith-standing the existence of detailed comparisons of old ständische constitutions and new drafts. See, for example, Was ist von der altwürtembergischen Verfassung in den von dem König mitgetheilten Entwurf der Geheimen Räthe aufgenommen?, in ibid., No. 59, 13 April 1817, pp. 237–40.

192. Einige Gedanken über landständische Verfassung, in ibid., No. 145, 22 November 1818, columns 1047–53, citation column 1047.

193. Hauptschluß der außerordentlichen Reichsdeputation (25 February 1803), in Huber (1978 [1961], pp. 1–28). Regarding the constitutional importance of the Reichs-deputationshauptschluss, see Knecht (2007). As for a general overview of the his-tory of the Holy Roman Empire until 1806 see, among others, Hartmann (2005), Gotthard (2006 [2003]), Stollberg- Rilinger (2006). More detailed is Schmidt (1999). For the late period of the Empire see particularly Aretin (1993–2000, Vol. 3, 1997), Demel (2005). On the constitutional history of the Empire from a cultural perspective see Stollberg- Rilinger (2008), a useful overview of the political situation in the German Empire around 1800 is Liebmann (2006). On 1806 as a watershed in European history, see Mazohl- Wallnig (2005).

194. The ‘Confederation of the Rhine’ or ‘Rhine Confederation’ (German: Rheinbund; French: États confédérés du Rhin [officially] or Confédération du Rhin [in prac-tice]) was initiated by Napoleon after his victory in the Battle of Austerlitz (2 December 1805) and the Peace of Pressburg (26 December 1815), established on 12 July 1806 by the ‘Treaty of the Confederation of the Rhine’ (Rheinbundakte, in Huber 1978 [1961], pp. 28–34). In this treaty, 16 German states, among them Bavaria, Baden and Württemberg, formally left the Holy Roman Empire and joined together in a confederation under the ‘protection’ (Art. 12) of Napoleon.

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On 6 August, following a French ultimatum, Francis II finally gave up his title of Emperor and declared the Holy Roman Empire dissolved (in Huber 1978 [1961], p. 37f.). In the years that followed, 23 more German states joined the Confederation, which collapsed in 1813 in the course of Napoleon’s defeat in Russia and the lost Battle of Leipzig (16–19 October 1813). Interestingly enough, there is as yet no detailed study on the history of the Confederation of the Rhine.

195. For the history of the German Standesherren after 1815 still crucial: Gollwitzer (1964 [1957]). On the legal status of the German nobility during the nineteenth century, reflected in scholarly debates of the time, see Gottwald (2009).

196. On the reform projects during the Confederation of the Rhine time see, for example, Weis (1984). Severin- Barboutie (2006) offers an overview in compara-tive perspective. An interesting case study, namely on Berg, is Severin- Barboutie (2008). For a comparison of political reforms in the Southern German states and Prussia, see Nolte (1990).

197. See the title of W. Demels works on (Bavarian) Staatsabsolutismus (Demel 1983, 1993).

198. See, for example, Wünsche eines Deutschen für Deutschlands künftige Verfassung. Geschrieben im Juni 1814, in [Allgemeine Staats- Korrespondenz] 1814–15, Vol. 2, 1814, pp. 322–50.

199. Proclamation an die Deutschen (25 March 1813), in Huber (1978 [1961], p. 81f.). On Russia’s policy towards Germany in the 1810s, see Eich (1986).

200. A contemporary overview of the constitutional deliberations is Klüber (1816). A detailed history of the Deutsche Verfassungsfrage between 1812 and 1815 is Schmidt (1890). See also Real (1935).

201. At this time, a renversement des alliances took place: Prussia formed a united front with Russia on the Polish question in order to get through its own plan to receive the whole of Saxony. Meanwhile, Prussia’s former ally Austria formed a coalition with Britain and France to thwart those Prussian- Russian territorial aspirations.

202. On the Problem der landständischen Verfassungen and particularly the Austro- Prussian initiative, see Mager (1974).

203. Karl August Freiherr von Hardenberg (1750–1822), reformer, Prussian foreign minister from 1804 to 1806 and state chancellor from 1810 to 1822. For his services, he was raised to the rank of prince in 1814. Klemens Wenzel Nepomuk Lothar Graf (since 1813 Fürst) von Metternich- Winneburg zu Beilstein (1773–1859), Austrian politician, statesman and minister of state, chairman of the Congress of Vienna.

204. Hindering despotic monarchical rule was an essential element of ‘German liberty’ in the Reich. In August 1813, vom Stein underlined this by declaring that ‘Die alte Verfassung Deutschlands versicherte jedem seiner Einwohner Sicherheit der Person und des Eigentums, in den größeren geschlossenen Ländern (territoriis clausis) verbürgten beides Stände, Gerichtsverfassung, in den übrigen die Reichsgerichte, die Oberaufsicht des Kaisers. Die Willkür der Fürsten war durchaus in der Abgabenerhehung, in ihrem Verfahren gegen die Person ihrer Untertanen beschränkt’ (Stein 1957–74, Vol. 4, 1963, p. 243).

205. In the course of the Empire’s dissolution, many German princes had taken the opportunity to get rid of their Landtage. In Württemberg, for example, the Landtag had been abolished in late December 1805. If Landstände continued to exist, then under new prerequisites. Wilhelm Joseph Behr made clear in

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1808 that it was ‘die jetzt regierenden Bundesglieder als die alleinigen Subjekte der bürgerlichen Oberherrschaft in ihren respektiven Staaten anerkannt, und anzuerkennen seien’ and that ‘die Stände in den Staaten, wo solche rechtlich existieren oder existieren sollten, auf keinen Fall als wirkliche Teilhaber der Staatsgewalt angesehen werden können’ (Behr 1808, p. 208f.).

206. Report from Vienna, concerning ‘den preußischen Entwurf die Grundlagen der deutschen Landesverfassung betreffend’ (30 September 1814). [GLAK 48 Haus- und Staatsarchiv: III. Staatssachen] 2921.

207. Regarding the failure of the constitutional initiative, see Hartmann (1962).208. Note der bevollmächtigten Abgeordneten neun und zwanzig Teutscher souverainer

Fürsten und Städte, an den Kaiserlich- Oesterreichischen Staats- und Conferenz- Minister usw., Herrn Fürsten v. Metternich, und an den Königlich-Preußischen Staatskanzler, Herrn Fürsten v. Hardenberg, datirt Wien den 16. Nov. 1814, in [Allgemeines Staatsverfassungs- Archiv] 1816–17, Vol. 1, 1816, pp. 221–34, the memorandum as such on pp. 229–34.

209. Ibid., p. 231.210. Ibid., p. 232.211. Deutsche Bundesakte vom 8. Juni 1815, in Huber (1978 [1961], pp. 84–90).212. Mager (1974, p. 299).213. Cf. the previous Section 3.2.5.214. Acte final du congrès de Vienne, du 9 juin 1815, in Klüber (1815–17, Vol. 6, 1816,

Number 21, pp. 3–96). The importance of the ‘Polish question’ is symbolised by the fact that the first article of the Act was dedicated to the political future of the country.

215. Ibid., p. 19.216. There was no consensus of opinion on which newspapers should be prohibited.

That explains why the Rheinische Merkur was forbidden in Bavaria as early as July 1814 (see Verbot des rheinischen Merkurs in Bayern, in [Rheinischer Merkur] 1814–16, No. 84, 9 July 1814, p. 4), but continued to be published in the rest of Germany.

217. See Korioth (1998, p. 46f.). Among others, it was Aretin who promoted Gewaltenvereinigung: Aretin and Rotteck (1824–8, Vol. 1, 1824, p. 88f). There was a tradition of such ideas. See, for example, Schlözer (1793, p. 91).

218. Rotteck (1829–35, Vol. 2, 1830), p. 172).219. The argument was often in terms of ‘rights’ and ‘titles’. See, for example,

[Rheinischer Merkur] 1814–16, No. 66, 2 June 1814, p. 2.220. During the eighteenth century liberal- minded men throughout Europe had

considered England as the political model. This attitude became so deeply ingrained in the minds of many contemporaries that it persisted well into the nineteenth century. In comparison, the role of German ‘ Anglo- Saxon traditionalists’, who loved to think of the English as Stammesgenossen, tribal blood- brothers and natural allies of the Germans’ (Eyck 1957, p. 339), was certainly less important, even though not entirely irrelevant for the existing Anglophilism in Germany.

221. Heinrich Heffter once explained the preference for England and the simul-taneous repudiation of France in post- Napoleonic Germany as ‘Fernliebe aus Nachbarhass’ (Heffter 1950, p. 64).

222. The most prominent example of such misunderstandings is the reading of Montesquieu. He had made quite clear that he was interested in the ‘spirit’ of the laws, and thus also the ‘spirit’ of English laws and English liberty: ‘Ce n’est

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point à moi à examiner si les Anglais jouissent actuellement de cette liberté, ou non. Il me suffit de dire qu’elle est établie par leurs loix, & je n’en cherche pas davantage’ (Montesquieu 1950 [1758; OV 1748] XI 6, p. 221). By many of his contemporaries, however, his appraisal of the English Constitution was inter-preted as a precise description of existing realities. The same disparity between the actual intentions of the author and his reading can be seen in the case of Blackstone (1765–9).

223. In the years after 1814/1815, there were but a few instances of a close relation ship and ideological cross- fertilisation between German liberals and their counter-parts in other European countries, particularly France. One of the exceptions that prove the rule was Karl von Rotteck, who had some interesting correspondence with both Constant and La Fayette. Rotteck was much impressed by Constant’s political theories and La Fayette’s political activities and drew repeatedly on Constant’s works. He actually included several references to these treatises in his own Staatsrecht der konstitutionellen Monarchie (Aretin and Rotteck 1824–8). Constant, on his part, generously acknowledged these quotations and spoke of Rotteck’s work, some of which he translated into French, as more important than his own (see Eyck 1957, p. 334). But almost all other German liberals who at this time wrote political treatises omitted specific references to their French contem-poraries. Not until the final fall of the Bourbon monarchy were there signs of a strong attraction by and orientation towards France.

224. Not only conservatives, but also some German liberals had doubts in this direc-tion (see, for example, Wilhelm 1928, pp. 175–93).

225. Friedrich Murhard in [Allgemeine politische Annalen] 1821–4, Vol. 10, 1823, p. 71.226. Above all, conservative political thinkers continued to stress the ‘non-trans-

ferability’ of models. See, for example, Friedrich Julius Stahl in 1845, who considered the English Constitution to be ‘ausser aller Vergleichung und aller Nachahmung für andere Staaten’ (Stahl 1845, p. 35). For states other than Great Britain itself, such a constitution would only mean misfortune and confusion.

4 Transfer and Reception: Bavaria and Baden as Case Studies

1. For a detailed study on Montgelas’ life and politics, see Weis (1988 [1971], 2005). For a broad overview of Montgelas’ role in the formation of the modern Bavarian state, see Cronenberg and Gray (1990), Weis (2003b).

2. A concise picture of Bavaria’s political history during the reign of Maximilian Joseph (1799–1825) is Weis (2003a). On the constitutional dimension, see Möckl (1979).

3. In the course of the Confederation of Rhine (12 July 1806), Bavaria gained territories in Franconia and Swabia.

4. See Kellmann and Drewes (2006, p. 715). On the territorial changes in the Napoleonic Age in detail, see Kiessling and Schmid (1976, pp. 19–22 for explana-tory notes, pp. 25–43 for sources).

5. On the traditional forms of corporative government and landständische representa-tion in Bavaria, see Hammermayer (1988 [1969]).

6. See [Landschaftliche Bibliothek] 1800–4, containing 96 pamphlets published around 1800. See also Tiainen (1967, pp. 178–80).

7. Verordnung über die Aufhebung der Steuerprivilegien und der landschaftlichen Steuerverwaltung, in Schimke (1996, pp. 63–8). On the end of the Landständische Verordnung, see Seitz (1999).

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8. On the elaboration of the Constitution: Rumschöttel (2008). 9. Protocoll über jene Gegenstände, die in der heute gehaltenen königlichen Geheimen

Staats- Conferenz vorgetragen und entschieden worden (20 January 1808), in Doeberl (1924, p. 73f.).

10. See ibid., pp. 73f., 78f.: ‘Seine Königliche Majestät [haben] die Anträge des Freyherrn von Montgelas wegen Entwerffung [sic!] einer Constitution für das gesamte Königreich nach den Grundlinien der vorliegenden Constitution des Königreiches Westphalen und wegen Annahme des Code Napoleon in dem gesamten Königreiche allergnädigst genehmiget’ (ibid., p. 79).

11. Konstitution für das Königreich Baiern (25 May 1808), in [GKB] 1806–17 1808, columns 985–1000. Printed in, for example, Wenzel (2002 [1990], pp. 11–17).

12. The Westphalian Constitution, designed as a formal decree of Napoleon and enacted by the King of Westphalia, Napoleon’s brother Jérôme Bonaparte, was entitled Königliches Dekret vom 7. Dezember 1807, wodurch die Publikation der Constitution des Königreichs Westfalen verordnet wird (7 December 1807), in [BLRW] 1808–13, 1808(1), pp. 1–31.

13. For a detailed comparison between the Bavarian Constitution of 1808 and the Westphalian of 1807, see Oeschey (1914, pp. 29–45). There were, nevertheless, also important differences between the two. See already Hazzi (1819, pp. 15–21). On the Bavarian Constitution of 1808 see, for example, Zimmermann (1940), Wegelin (1958), Tiainen (1967), Möckl (1984), and especially Schmid (2008).

14. Hazzi (1819, p. 6).15. See Doeberl (1918, p. 7).16. On the guiding role of the principle Staatssouveränität for Montgelas’ politics, see

Doeberl (1925).17. Edited in Weis (1970b).18. See Demel (1983).19. On the actual legal output of Montgelas’ reform agenda, see Schimke (1996). See

also Kiessling and Schmid (1977, 1978).20. Konstitution für das Königreich Baiern (25 May 1808), in [GKB] 1806–17, 1808,

columns 985–1000, preamble columns 985f. The Constitution of 1808, together with all subsequent edicts and regulations of implementation, also in [BAYHSTA Staatsrat] 1640.

21. See Ullmann (1983, p. 52f.). Concerning the relation between public debt and reforms in Southern Germany, see also Ullmann (1986a, 1986b, 1996).

22. The plan of a ‘framework constitution’ for the Confederation of the Rhine though prominent in the political debates of the time did not materialise in the end. On the relation between this plan and the enactment of the Bavarian Constitution in 1808, see Doeberl (1924).

23. The Code Napoléon was rewritten by Anselm von Feuerbach (Allgemeines bürger-liches Gesetzbuch für das Königreich Baiern), but actually never put into force in Bavaria. This also provides evidence of the ambivalent character of legal adop-tions from France.

24. In this context, the term Scheinkonstitutionalismus is frequently stressed to char-acterise the constitutional projects in Germany during the Confederation of the Rhine. See, for example, Huber (1967 [1957], p. 91), Botzenhart (1993, p. 13). An argument against the thesis of pure ‘fake constitutionalism’ is presented by Willoweit (2005 [1990], p. 277).

25. Cf. title four of the Constitution: Von der National-Repräsentation.26. See Kritzer (1992, p. 26).

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27. See Vertrag von Ried zwischen Bayern und Österreich (8 October 1813), in Kiessling and Schmid (1976, p. 43f.).

28. § 1 of the Constitution explicitly stated: ‘Das Königreich Baiern bildet einen Theil der rheinischen Föderation.’

29. Among other things, certain privileges of the nobility had been restored in 1811, thus negating the Constitution’s principle of equality before the law (see Möckl 1984, p. 162).

30. See Doeberl (1918, p. 18).31. The immediate importance of the Charte is stressed by ibid., p. 20, Weis (1976,

p. 414f.). Explicit references in the printed and archival sources cannot be found, but the pieces of circumstantial evidence are overwhelming.

32. Montgelas (1908 [1817], p. 76).33. On this last aspect and the role of the Congress of Vienna as a catalyst in particu-

lar see also the memoirs of Karl Heinrich Ritter von Lang, who became a member of the constitutional commission (Lang 1842, p. 202f.).

34. See Montgelas (1908 [1817], p. 76). On Ludwig’s role in the constitutionalisation during the following years see [BAYHSTA GH NL Ludwig I.] 88/4/2, Heigel (1884), Körner (1986).

35. Original in [BAYHSTA Staatsrat] 1654. Printed in Lerchenfeld (1854, pp. 336–51), in his Compte rendu, Montgelas mentions himself as the originator of the rescript. See Montgelas (1908 [1817], pp. 76–84).

36. The original appointment documents in [BAYHSTA Staatsrat] 1642.37. For details see Heunisch (1857), for the period 1803–11 especially pp. 32–66. An

overview on the demographic development during the Vormärz in Hörner (1987, pp. 23–34). On Baden’s history at the beginning of the nineteenth century in outline see, for example, Ullmann (1992). See also Engehausen (2008 [2005]). On the German Southwest during the Confederation of the Rhine, see Sauer (1987).

38. See Wierichs (1978).39. Lloyd E. Lee speaks by mistake of ‘thirteen’ constitutional edicts. See Lee (1975,

p. 94). Obviously, he mistakes the earlier 13 ‘organisational’ (see Andreas 1913b, pp. 38–80; see also Andreas 1909) for the nine ‘constitutional edicts’ of 1807–9.

40. See in detail Andreas (1913b, pp. 168–81.41. For more biographical information see Schumann (1994).42. Karl Friedrich (1728–1811) ruled as the Margrave of Baden- Durlach from 1746

until 1771, when he inherited Baden- Baden and thus re- united the former – since 1515 divided – land of Baden as Margravate Baden. Further biographical informa-tion in Weech (1875, Vol. 1, pp. 16–18). For a full biography see Borchart- Wenzel (2006).

43. Organisationsedikt (26 November 1809), published with six enclosures in [BRB] 1807–16, 1809, No. IL–LII. See also Andreas (1912c).

44. Unterthänigste Anzeige die Nothwendigkeit einer Constitution betr. (22 September 1806). Printed in Weech (1892, pp. 292–8). Included in Brauer’s memorandum was a Skizze der wesentlichen Theile einer neuen Constitution des badischen Staats (ibid., pp. 294–8). On Brauer’s initiative see also Andreas (1913b, p. 168). For Brauer’s political life, see Würtz (2005); for a short biographical overview, see Kroener (1991).

45. See Weech (1892, p. 252f.).46. The outlines of both edicts, which were submitted to the Grand Duke’s privy

council in late March 1808, are printed with related archival material in ibid., pp. 255–313.

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47. See Ullmann (1984, p. 100). On Baden’s financial situation in the Napoleonic Age and the government’s financial policy see also Ullmann (1982).

48. Emmerich Joseph von Dalberg (1773–1833) joined the administration in 1803. In 1809, Dalberg resigned from his ministerial office and went back to France, where he was made duke and councillor of state in 1810 by Napoleon I. On his political activities between 1803 and 1810, see Jürgens (1976).

49. Landesherrliche Verordnung. Organisation der obersten StaatsBehörden (8 July 1808), in [BRB] 1807–16, 1808, No. XXI.

50. See ibid., p. 185.51. See ibid., p. 185f.52. See Arndt (1953, pp. 444–55). The collected material of these deliberations in

[GLAK 48 Haus- und Staatsarchiv: III. Staatssachen] 6063, partly printed in Weech (1868, pp. 151–90).

53. Notes on the first constitutional draft (30 September 1808). [GLAK 48 Haus- und Staatsarchiv: III. Staatssachen] 6063.

54. Notes on the first constitutional draft (10 October 1808). Ibid.55. See Andreas (1913b, p. 186). The marginality of these first concrete concepts for

a constitution in Baden manifests itself in the fact that they had no influence on the Constitution of 1818 and were not even known to Karl Friedrich Nebenius, the author of the latter. See Nebenius’ collected papers on the Constitution in [GLAK N NL Nebenius] Conv. 35. Cf. Section 4.2.2.

56. Karl Ludwig Friedrich (1786–1818) became Grand Duke of Baden on 10 June 1811. See also Weech (1875, Vol. 1, p. 19f.).

57. See Andreas (1912a).58. Largely, indifference towards the constitutional project dominated public opin-

ion after 1808. See Goldschmit (1918, p. 5). A look at newspapers of the time underlines this overall impression.

59. Popular interest was mainly focused on dealing with the legacies of war and uncertainty and on re- establishing peace. See, for example, Stimmung des Volks im südwestlichen Deutschland, in [Rheinischer Merkur] 1814–16, No. 84, 9 July 1814, pp. 1–3. Continuation in ibid., No. 85, 11 July 1814, pp. 1f. On the perception of war in the German Southwest, see Planert (2007).

60. In Andreas (1913b, p. 358).61. See Lee (1975, p. 99).62. Cf. Chapter 3 note 66.63. By March 1814, before the collapse of the Napoleonic Empire, vom Stein had

submitted a memorandum for a German federal constitution. In Stein (1848, pp. 14–22).

64. See the entries of vom Stein in his diary, in Goldschmit (1918, p. 6).65. Karl Wilhelm Freiherr Marschall von Bieberstein (1773–1817) became Baden’s

minister of the interior in 1806. In 1814 he was appointed Baden envoy at the Congress of Vienna. After the end of the Congress, Marschall became Baden’s ambassador in Stuttgart. For more biographical information, see Weech (1875 Vol. 1, pp. 39–42).

66. Memorandum of vom Stein to Tsar Alexander I, in Pertz (1849–55, Vol. 4, pp. 217–20). The propositions boiled down to a bicameral system with a chamber of peers and a chamber of elected deputies, who should come together annually from 1815 onwards.

67. Memorandum of Grand Duke Karl to the princes Hardenberg and Metternich (Vienna, 1 December 1814). Printed in Klüber (1815–17, Vol. 1, I Doc. XXII, p. 100f.).

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68. Cf. Section 3.3.69. Cf. Chapter 3 note 208.70. Kroener (1991, p. 63).71. See Rescript Maximilian Josephs vom 17. September 1814. Die Revision der Verfassung

von 1808 betreffend. [BAYHSTA Staatsrat] 1654. A detailed analysis of the decree in Montgelas (1908 [1817], pp. 76–81).

72. These edicts had specified or supplemented the constitutional text in various respects. Besides the ‘organic edicts’, a number of additional implementing regu-lations were released after the proclamation of the Constitution. For an overview see Wenzel (2002 [1990], pp. 18–20).

73. The royal decree used the German translation Kammer der Deputirten. In Montgelas’ Compte rendu, the French term Chambre des Députés appears (see Montgelas 1908 [1817], p. 78), and it is also remarkable that Montgelas uses the term Charte constitutionnelle for the Bavarian Constitution, indicating that he was familiar with the new French Constitution. Apart from that, however, Montgelas just remarks briefly that ‘Je profitai des lecons du passé et du changement favo-rable et sage survenu dans l’opinion, pour diviser les États généraus en deux chambres’ (ibid.).

74. As in other parts of Germany, Grundhold was a peasant who managed his own farm, but who still had to pay an annual tithe to a lord of the manor, either in cash or in kind. In most cases, the peasant had a Miteigentum (‘co-ownership’; Lat. dominium utile), the lord of the manor the Obereigentum (‘superior-ownership’, Lat. dominium directum) of the same property. See Weis (1970a), Sandberger and Pankraz (1988 [1969]).

75. The detailed protocols of the 22 sessions of the constitutional commission in [BAYHSTA Staatsrat] 1643, 1644, 1645, 1646, 1647. Besides the official protocols, there are also two critical commentaries of participants available, namely of Lerchenfeld and Lang: Lerchenfeld (1887, pp. 35–55, documents pp. 233–54); Lang (1842, pp. 203–16). The actual value of the latter, however, is restricted. A detailed analysis of the deliberations and the voting behaviour of the members of the commission in Weis (1976).

76. Lerchenfeld to Freiherrn Karl August von Wangenheim (Munich, 5 November 1814), in Lerchenfeld (1887, p. 234f., citation p. 235).

77. See Lerchenfeld to Crown Prince Ludwig (Munich, 28 November 1814), in ibid., pp. 245–9, especially p. 248.

78. Cf., for example, the fifth session of the constitutional commission on 8 November 1814, in which Graf von Arco called the practical use of a binding constitutional oath into question by taking French constitutional history as a negative example: ‘gerade von [den] französichen Constitutionen, deren man 7 bis 8 von allen Franzosen beschwören sah, sei keine gehalten und jeder von den Franzosen selbst umgestoßen worden. Hatten sie nicht Haß dem Königthum und dann Treue dem Kaiser – eben dem Kaiser, welcher sich nach wenigen Jahren der Krone verlustig erklärten, geschworen. Was sollten dergleichen Eide? Sie taugten Ihres Erachtens zu nichts. Innige Anhänglichkeit an Verfaßung und an das Fürstenhaus sein Jahrhunderte lang in den Herzen der Deutschen auch ohne Eid geschrieben gewesen.’ [BAYHSTA Staatsrat] 1643.

79. See especially the session of 13 December 1814 ([BAYHSTA Staatsrat] 1645).80. [BAYHSTA Staatsrat] 1654. It seems that the actual initiator of the decree was

Montgelas himself (see Doeberl 1918, p. 28; Weis 2003a, p. 114).81. See [BAYHSTA Staatsrat] 1654.

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82. Original in [BAYHSTA Staatsrat] 1653: Entwurf der Constitution für das Königreich Baiern, angefertigt im Jahre 1815 nach Inhalt der Ausschuss- Protocolle von 1814 & 1815. Nach den Beschlüssen der Mehrzahl der Mitglieder des Ausschusses mit kurzer Bemerkung der Meinungen der Minderzahl derselben.

83. Original in [BAYHSTA Staatsrat] 1654. An annotated edition in Körner (1986, introduction pp. 421–9; edition pp. 429–48). See also Heigel (1884). On the con-temporary political positions of Ludwig in general, see Weis (1990 [1986]), Kraus (1995), Gollwitzer (1997 [1986], pp. 213–35).

84. ‘der Reinheit unserer Sprache entgegen sind die Benenungen constitution und die halbwelsch und halbteutsche deputirten, jener aber angemeßen ‚Verfaßung‘ und ‚Abgeordnete‘ folglich ‚Kamer der Abgeordneten‘.’ [BAYHSTA Staatsrat] 1654.

85. The draft of the commission had provided the term Reichsrath (‘Councillor of the Realm’), which Ludwig considered inappropriate: ‘Die Benenung ‚Reichsrath‘ scheint nicht paßend da die Mitglieder dieser/ wie auch der andern/ Kamer, mehr als zu rathen haben. ‚Reichsherr‘ welcher Name in Schweden üblich möchte ge eigneter seyn, folglich jener, Kamer der Reichsherrn‘ oder mehr vielleicht noch ‚Standesherr‘ und ‚Kamer der Standesherrn‘ was keine Nachahmung wäre und nicht so hoch klänge.’ Ibid. It must remain open how detailed Ludwig’s concrete knowledge of the Swedish or other foreign constitutional systems was. His writ-ten records reveal, in any case, that he was certainly aware of most contemporary constitutions in Europe.

86. The protocols of the sessions, which took place on the 14 and 16 April 1815, in ibid.

87. In his Compte rendu, Montgelas mentions the war after Napoleon’s return from Elba, the Bavarian- Austrian negotiations regarding the marriage of Princess Charlotte to Emperor Francis I in 1816, travels of the King, and his – Montgelas’ – own illness (Montgelas 1908 [1817], p. 83).

88. See La Garde to Richelieu, Munich 28 January 1817, in Chroust (1935–7, Vol. 1, p. 12f.).

89. See Wahrlieb (1817). Written under the pseudonym Gottlieb Wahrlieb, this pam-phlet was meant as an apology of the Bavarian politics under Max I Joseph and Montgelas.

90. In September 1815, Montgelas had ordered the strict surveillance of any kind of constitutional movement in Munich, but the chief of police was not able to report a single concrete proof for the existence of such a movement in the fol-lowing months (see [BAYHSTA M Inn] 45165).

91. See Wahrmuth (1816).92. See ibid., p. 34f.93. See ibid., p. 29.94. ‘Die brittische Verfassung wird gegenwärtig noch von Verhältnissen gehalten, die

bloß local sind, und daher keine Nachahmung gestatten’ (Aretin 1816, p. 41, see also p. 39).

95. Ibid., p. 40.96. Ibid., p. 42.97. The French envoy in Munich reported to Paris about the very slow progress

the set up of a new constitution made, even under the new government: ‘Les progrès de l’amélioration désirable du système sont encore si lentes qu’il est impossible de ne pas remarquer le défaut de direction, qui en est la vérita-ble cause’. La Garde to Richelieu, Munich 20 April 1817, in Krauss (1987, p. 337).

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98. On the final stage in the elaboration of a Bavarian constitution, see Dobmann (1962, pp. 127–51), Winter (1968, pp. 286–96), Aretin (1976, pp. 213–68). Overviews in Huber (1967 [1957], pp. 319–22), Weis (2003a, pp. 113–17).

99. See Doeberl (1918, p. 39). On 5 November 1817 Aretin wrote ‘daß es rätlich seyn dürfte, wenn die deutschen Regierungen ernstliche Anstalten treffen wollten, zur Erfüllung des 13. Artikels der Bundesacte, und zwar nicht blos zum Schein, [zu] schreiten’, in Aretin (1976, p. 242f., citation p. 243). In late 1816, the question of a Bavarian constitution became indeed increasingly important in the contemporary German press. See, for example, Bayern‘s Hoffnungen in Ansehung einer landständischen Verfassung, in [Neuer Rheinischer Mercur] 1816ff., No. 63, 17 October 1816, pp. 254–6; No. 64, 19 October 1816, pp. 257–60.

100. This possibility was widely discussed in the German press, too. See, for example, Ueber die Vollziehung des Art. 13 der teutschen Bundesacte, besonders in Baiern, in [Neuer Rheinischer Mercur] 1816ff., No. 14, 24 January 1818, pp. 53–6; No. 15, 25 January 1818, p. 57f.

101. See Aretin (1955). ‘Das einzige Mittel’, Metternich wrote on 12 January 1818, ‘welches die Regierungen haben, im Verfassungswesen voranzugehen, beschränkt sich auf ein Nichtberühren der Bestehenden guten oder schlechten Verfassungen und das Erteilen ständischer Verfassungen (par charte) [that is by octroy; MJP] da, wo es noch keine gibt’ (in ibid., p. 725).

102. The royal decree was directed to the Staatsrat, in [BAYHSTA Staatsrat] 1654.103. The collected protocols are in [BAYHSTA Staatsrat] 1655, 1656, 1657.104. Metternich to Gentz, 30 June 1824, in Metternich (1880–4, Vol. 3, p. 134).105. An overview biography in [Allgemeine Deutsche Biographie] 1875–1912,

Vol. 45, 1900, pp. 67–70. On his activities as a Bavarian statesman between 1799 and 1821, see Dobmann (1962), regarding his role for the Bavarian Constitution in particular pp. 127–51.

106. See Doeberl (1924, p. 34f.).107. See the protocol of the Geheime Staatskonferenz of 20 April 1808 in [BAYHSTA

Staatsrat] 8.108. Those deliberations took place in July and August 1811 and culminated in the

draft of an edict, which was, however, never passed. Protocols and draft in [BAYHSTA Staatsrat] 1642.

109. In his memoirs, Ritter von Lang gives a vivid account of Zentner’s key role in the commission (Lang 1842, pp. 213, 216).

110. See [BAYHSTA Staatsrat] 1643, 1644, 1645, 1646, 1647.111. See [BAYHSTA Staatsrat] 1654.112. See [BAYHSTA Staatsrat] 1655, 1656, 1657.113. Due to its crucial importance, the edict on the Ständeversammlung was prepared

by Zentner himself together with Lerchenfeld. See the protocol of the ministe-rial conference of 4 May 1818 in [BAYHSTA Staatsrat] 1657.

114. In the session of 9 April 1818, Rechberg argued that the ‘Repraesentation System […] wie es in Frankreich bestünde’ was a ‘Kinde der Revolution’. This system, ‘welches immer und unter allen Gestalten auf die Grundsätze der droits de l‘homme hinführe’, had proved its value under no circumstances whatsoever ([BAYHSTA Staatsrat] 1656).

115. Among them were Lerchenfeld and von der Becke.116. See the protocol of the constitutional commission of 25 October 1814 in

[BAYHSTA Staatsrat] 1643.

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117. Twelfth session of the constitutional commission on 9 April 1818 ([BAYHSTA Staatsrat] 1656).

118. Ibid. His argumentation was similar to Wrede’s and Lerchenfeld’s. On Wrede’s role for the drafting of the Constitution, see Winter (1968, pp. 286–96).

119. [BAYHSTA Staatsrat] 1657.120. The commission actually followed Zentner’s suggestions, but refrained from

making the president of the first chamber a hereditary position (see [BAYHSTA Staatsrat] 1656).

121. Fourteenth session of the ministerial conference on 15 April 1818. Ibid.122. Ibid.123. The authority of Zentner in the constitutional commission is underlined by the

fact that a similar initiative by another member had failed one month earlier. On 14 March, von Ringel had stated that he missed ‘in der entworfenen Verfassungs- Urkunde eine Bestimmung, die Sie in mehreren Constitutionen, unter andern auch in dem Entwurfe der Verfassung für das Königreich Würtemberg und in der neuesten französischen gefunden, nemlich jene, wodurch die Heiligkeit und Unverlezbarkeit der Person des Königs ausgesprochen werde.’ In reply, several colleagues had argued ‘daß man diesen Satz um deswillen in der Verfassung umgangen, weil dadurch ein Fall vorausgesezt würde, den man sich bei der baierischen Nazion als unmöglich denken könnte, und man es der Ehrerbietung und der Verehrung gegen Seine Majestät den König angemessen geglaubt, diesen Satz nicht zu berühren.’ In France, this provision had just been added ‘in die Karte [sic!]’ as a ‘Folge der vohergegangenen Revolution.’ Sixth session of the ministerial conference on 14 March 1818. Ibid.

124. Ludwig to Lerchenfeld, Rome 31 March/4 April 1818, in Lerchenfeld (1887, pp. 265–7).

125. Ludwig thus preferred an agreed constitution to an imposed constitution. The decision on the future constitution in the constituent assembly should be based on majority vote, not an itio in partes (see ibid., p. 266).

126. See, for example, ibid. p. 266: ‘Des Königs Macht in Ernennung zu Standesherrn (peers) hatte ich in meinen Bemerkungen [1815] als begränzt gewünscht, mir ist aber hierüber andere Ansicht geworden und ich bin der Meinung, daß ihm daßelbe Recht hierinnen, welches Englands König besitzt, werde.’

127. In this context, Ludwig also repeated his wish for a German nomenclature in the constitutional text: ‘Ich wünsche so viel thunlich reine teutsche Benennungen, keine Constitution sondern Verfaßung, Abgeordnete, nicht Deputirte, und keine Repräsentanten sondern Vertreter’ (ibid., p. 267).

128. Ludwig to Lerchenfeld, Rome 9 April 1818, in ibid. p. 267f., citation p. 268. In early 1818, Ludwig not only corresponded with Lerchenfeld about the future constitution. On 4 April, for example, Ludwig also reminded Wrede that the rights of the Bavarian people should not be restricted in narrow- minded reasoning, namely to avoid the harmful effects of a ‘half-solution’. See Ludwig to Wrede, Rome 4 April 1818, in [BAYHSTA GH NL Ludwig I.] VI 293e.

129. See a remark of Ludwig in a later letter to Rechberg. Ludwig to Rechberg, 22 August 1818, in [BAYHSTA GH NL Ludwig I.] 88/4/2.

130. The protocols of the last sessions in [BAYHSTA Staatsrat] 1657.131. The resolution is printed in Weech (1868, p. 6). On the making of the Badenese

Constitution between 1814 and 1818, see also Andreas (1912b, 1913b) and Goldschmit (1918, especially pp. 1–32).

132. Text printed in Weech (1868, pp. 7–10).

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133. Cf. note 65.134. The collected materials in [GLAK 48 Haus- und Staatsarchiv: III. Staatssachen]

6066. Not even a minute- taker was consulted by the commission, whose members wrote the protocols themselves alternately.

135. It is remarkable that, unlike in Bavaria, foreign constitutional models were explicitly taken into consideration right from the beginning of the constitu-tional debates. By the first session of the commission, the potential value of the Westphalian Constitution of 1807 and the Bavarian Constitution of 1808 was examined. See the protocol of the sitting on 23 January 1815 (ibid.).

136. Printed in Weech (1868, pp. 13–19).137. Printed in ibid., pp. 19–22.138. See Andreas (1912b, p. 14f.). See also Fehrenbach (1996b, p. 16).139. On public opinion in Vormä rz- Baden, see Meerwarth (1907).140. In this respect Fehrenbach (1996b, p. 16) is mistaken, since she qualifies the

constitutional movement in a one sided manner as ‘altstä ndisch- altrechtlich motiviert’.

141. Cf. the coverage of the movement in the contemporary press. For example, Ständische Angelegenheiten im Großherzogthum Baden, in [Rheinischer Merkur] 1814–16, No. 343, 12 December 1815; No. 344, 14 December 1815; No. 350, 27 December; Stimmen aus Baden über das Bedürfniß eines Zusammentretetens der Regierung mit den Bevollmächtigten des Landes, in [Allgemeines Staatsverfassungs- Archiv] 1816–17, Vol. 1(3), 1816, pp. 391–467. Compared to other German states, the press in Baden itself was underdeveloped and hence only played a marginal role in the shaping of public opinion. Since 1810, the official Badische Staatszeitung (till 1810 and again from 1817 Karlsruher Zeitung) was the only newspaper permitted to circulate political news. The upturn of the press during the Befreiungskriege was only an interlude. After the Congress of Vienna ‘verfiel die badische Presse […] wieder in ihren politischen Dämmerschlaf der vergan-genen Jahrzehnte’ (Arnold 2003, p. 246).

142. As for the archival documentation of this constitutional movement, see [GLAK 48 Haus- und Staatsarchiv: III. Staatssachen] 6071, 6072, 6073.

143. Cited in Meerwarth (1907, p. 102). As for the role and status of the nobility in post- Napoleonic Baden, see Mangold (1933). See also Fehrenbach (1983, 1996a), Furtwängler (1996).

144. The constitutional initiative did have at least some indirect effects, since the rate for direct taxes was reduced from 25 to 18 per cent, and the ministry of finance initiated a campaign to inform the population about the advantages of the new tax system (see Weech 1868, p. 34).

145. The materials in [GLAK 48 Haus- und Staatsarchiv: III. Staatssachen] 6068. A detailed summary of the deliberations in Weech (1868, pp. 35–8).

146. Wilhelm Ludwig Leopold Reinhard Freiherr von Berstett (1769–1817) entered the Baden administration in 1809. Berstett was member of the Baden delegation at the Congress of Vienna and took part in the negotiations of the Second Treaty of Paris, before he became deputy at the Diet of the German Confederation. In 1816 Berstett was appointed foreign minister, a position, from which he continued to work for a constitution (see Weech 1875, Vol. 1, pp. 75–81).

147. Berstett’s memorandum was sent to Karlsruhe on 4 February 1816 (see Andreas 1912b, p. 32; Goldschmit 1918, p. 16). Berstett transmitted his memorandum also to Freiherr vom Stein, who supported Berstett’s argument for a bicameral system. Vom Stein’s observations in Pertz (1849–55, Vol. 5, pp. 35–8).

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148. In [BRB] 1807–16, 1816, No. VIII, 19 March 1816, p. 29. Original in [GLAK 48 Haus- und Staatsarchiv: III. Staatssachen] 6069.

149. See Beitrag zur Geschichte der im Großherzogthume Baden zu hoffenden landständischen Verfassung, in [Neuer Rheinischer Mercur] 1816ff., No. 26, 13 August 1816, pp. 103–6, especially p. 105f. The report was continued in the following issues: 27, 15 August 1816, pp. 107–10; 28, 17 August 1816, p. 111f.

150. A contemporary documentation of the aristocratic interventions and the gov-ernment’s reaction is Geschichtliche Darstellung der Schritte, welche von dem Adel im Badenschen, zur Vorbereitung einer ständischen Verfassung geschehen, und der Art, wie dieselben von der Regierung aufgenommen sind; mit beygefügten Aktenstücken, in [Die Zeiten] 1805–20, No. 47, August 1816, pp. 183–213.

151. In [BRB] 1807–16 1816 No. XIV (7 May 1816), pp. 51–4.152. Ernst Philipp von Sensburg (1752–1831) studied law and started his career

at the Reichshofrat (‘Aulic Council’, literally meaning ‘Court Council of the Empire’) in Vienna as one of the two supreme courts of the Empire, the other being the ‘Imperial Chamber Court’ (Reichskammergericht). In 1817, he was appointed director of the Badenese ministry of the interior (see Weech 1875, Vol. 2, pp. 295–8).

153. Printed in Weech (1868, pp. 43–51). Original: [GLAK 48 Haus- und Staatsarchiv: III. Staatssachen] 6069, Doc. 3. Also in [GLAK N NL Nebenius] Conv. 34. In detailed Bemerkungen zu dem Kommissarischen Entwurf über die Einführung einer landständischen Verfassung (in [GLAK N NL Nebenius] Conv. 34; also in [GLAK 48 Haus- und Staatsarchiv: III. Staatssachen] 6069, Doc. 4), Sensburg explained the reasons for the differences between his draft and the draft of the constitutional commission set up in 1815.

154. For a biographical overview, see Weech (1875, Vol. 2, pp. 99–105). As for Nebenius’ (political) life and work, see also Andreas (1913a), Beck (1866), Böhtlingk (1899). A critical biography of Nebenius is still missing.

155. For more information see Weech (1875, Vol. 1, pp. 95–104).156. The most important source for the reconstruction of Nebenius’ role and

activities in the constitutionalisation process are his personal notes in the Generallandesarchiv Karlsruhe. See [GLAK N NL Nebenius] Conv. 34, Conv. 35. Conv. 34 contains the constitutional drafts and Nebenius’ correspondences rele-vant for the constitutionalisation (1816–23) as well as a collection of Materialien für den Verfassungsentwurf. Conv. 35 comprises a detailed collection of materials on the history of the constitution, a number of memoranda on specific consti-tutional questions and a collection of contemporary reports of the press on the Constitution of 1818.

157. See [GLAK N NL Nebenius] Conv. 35.158. Verfaßungsentwurf 1a and Verfaßungsentwurf 1b, in [GLAK N NL Nebenius]

Conv. 34.159. Nebenius’ draft with the modifications of Sensburg and the other members

of the constitutional commission in [GLAK 48 Haus- und Staatsarchiv: III. Staatssachen] 6069, Doc. 5. A detailed comparison of the three versions of Nebenius’ draft (original version; redaction of Sensburg; redaction in the com-mission) in Weech (1868, pp. 55–88).

160. See [GLAK 48 Haus- und Staatsarchiv: III. Staatssachen] 6069, Doc. 6.161. In his Erinnerungen über den Sensburgischen Entwurf II. dated 22 July 1816,

Marschall expressed quite openly his discontent about several of the con-servative restrictions in the draft, particularly as far as the reduced rights of the

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Landstände were concerned. More generally, he also declared his reservations against a single chamber, whose disadvantages were contrasted with the advan-tages of a bicameral system (see Weech 1868, p. 89f.).

162. [BRB] 1807–16, No. XXIV, 30 July 1816, p. 99.163. Cf. the coverage in contemporary newspapers and magazines.164. See, for example, Fortgesetzte Beiträge zu der Geschichte der im Großherzogthume

Baden zu hoffenden landständischen Verfassung, in [Neuer Rheinischer Mercur] 1816ff., No. 47, 19 September 1816, p. 192.

165. See Weech (1868, p. 92), see also Weech (1863, p. 58f.). By mistake, Weech implies that these reshuffles took place already in 1816, and not 1817.

166. Reitzenstein had been dismissed in 1810 on Napoleon’s initiative.167. [BRB] 1817–44, No. XXIV, 4 October 1817, p. 93–6, citation p. 94.168. Württemberg had a natural interest to thwart every Bavarian ambition to enlarge

its territory, whereas Prussia had the ambition to keep the power of Bavaria – the largest state in the German Confederation besides Prussia and Austria, the latter supporting Bavarian aspirations in Baden – as small as possible. Russia again intervened for Baden particularly in view of the dynastic relations between the two countries.

169. See Weech (1868, p. 94).170. [GLAK 48 Haus- und Staatsarchiv: III. Staatssachen] 6075, Doc. 5.171. See [GLAK N NL Nebenius] Conv. 35.172. Ibid. As for the collected materials of the commission see [GLAK 48 Haus- und

Staatsarchiv: III. Staatssachen] 6075.173. See [GLAK N NL Nebenius] Conv. 35. Even though Nebenius’ recollection of

the set up of the constitution was written 35 years later, the value of his papers cannot be overestimated.

174. Ibid.175. In [GLAK N NL Nebenius] Conv. 34, Correspondenz. In this letter, Nebenius

admitted quite openly his missing expertise in the field: ‘Der Gegenstand, der durchaus in keiner Beziehung mit den Geschäften eines Finanzraths steht, war mir zwar nicht ganz fremd, doch war ich damit auch nicht vollkommen vertraut.’

176. See ibid., Materialien.177. In Nebenius’ eyes, France had to undergo the most unsteady development

towards constitutional government: ‘Frankreich ging […] vom Zustand der Anarchie zum Despotismus u[nd] vom Desoptismus durch eine furchtbare revo-lutionäre Crisis zum repräsentativen System über’ (ibid.).

178. Ständische und Reprä sentativ- Verfassung [Kleinere Aufsätze, die Verfassung betr.], in [GLAK N NL Nebenius] Conv. 35. In his remarks on the formation of the Badenese Constitution, Nebenius also makes clear that ‘der später in den höch-sten politischen Sphären als eine Frage von hoher Bedeutung geltend gemachte Unterschied zwischen landständischer Verfassung und Repräsentativverfassung in keiner Weise auch nur berührt [wurde]’ (ibid.).

179. [GLAK N NL Nebenius] Conv. 34, Materialien.180. Ibid.181. Volkssouveränität [Kleinere Aufsätze, die Verfassung betr.], in [GLAK N NL

Nebenius] Conv. 35. Nebenius argued against the contemporary mainstream that Volkssouveränität was linked to representative constitutions: ‘Man bringt die Ideen der Volkssouveränität in Verbindung mit dem Repräsentativ System. Das ist ganz irrig. Jene Idee kann[n] den ständischen wie der all[gemeinen]

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Repräsentation zugrunde liegen gegenüber dem Regenten’. Ständische und Reprä sentativ- Verfassung [Kleinere Aufsätze, die Verfassung betr.], in [GLAK N NL Nebenius] Conv. 35.

182. [GLAK N NL Nebenius] Conv. 34, Materialien.183. [GLAK N NL Nebenius] Conv. 35. It is remarkable that Nebenius’ draft was con-

sciously assessed in a broader perspective and compared ‘mit den in anderen Ländern bestehenden Einrichtungen oder in kurz zuvor veröffentlichten Verfassungsurkunden oder vorliegenden Entwürfen gegebenen Vorbildern’ (ibid.). It remains unclear, however, whether only Nebenius or all commission-ers had the necessary competence to draw these comparisons.

184. See [GLAK 48 Haus- und Staatsarchiv: III. Staatssachen] 6075.185. Verfassungs- Urkunde für das Grossherzogthum Baden (29 August 1818), in [BRB]

1817–44, 1818, No. XVIII. There is no original copy of the Constitution signed by Karl, but only the final draft.

186. Cf. Section 2.2.2.187. Nebenius’ lack of understanding of, in his eyes arbitrary, differentiations

between representative and landständische constitutions bears witness to his intellectual distance to traditional forms of corporative government.

188. Fourteenth session of the Bavarian ministerial conference, 15 April 1818. [BAYHSTA Staatsrat] 1656.

189. Verfassungs- Urkunde des Königreichs Baiern (26 May 1818). Original handwritten version of the constitutional text in [BAYHSTA Staatsrat] 1660. Official printed version in [GKB] 1818–73, 6 June 1818, column 101ff. Printed versions in, for example, [Verfassungsgesetze] 1894 [1863], pp. 1–25, Huber (1978 [1961], No. 53, pp. 155–71), Wenzel (2002 [1990], pp. 23–41). For an English translation see, for example, [Constitutional Act of the Kingdom of Bavaria] 1837. The Bavarian was the seventh constitution to be released in Germany after 1814, but the first of a larger state. Together with the Constitution ten complementary edicts (Beylagen) were proclaimed on 26 May 1818. An annotated edition of them in [Verfassungsgesetze Bayern] 1909 [1899], pp. 65–227.

190. Preamble of the Constitution.191. The aim to avoid any ‘revolutionary’ and/or ‘Napoleonic’ terminology is mani-

fest in that the preamble of the Verfassungs- Urkunde refers to the Constitution of 1808, however not accurately as Konstitution, but as Verfassung. Similarly, the parliamentary assembly of 1808 is not called National-Repräsentation, but ständische Versammlung.

192. Cf. Section 4.2.1. Cf. Art. 13 of the Charte of 1814, ‘La personne du roi est invio-lable et sacrée’, and Art. 14, ‘Le roi est le chef suprême de l’Etat’.

193. A textual comparison of the Bavarian Constitution with the French Charte and other constitutional texts of the time in Usée (1910, pp. 58–79). More general Ueber die Standpuncte der baierischen Verfassungs- Urkunde von 1818 in Beziehung anderer Constitutionen: Hazzi (1819). Concerning the French Charte, see also Oeschey (1914).

194. Usée (1910, p. 73).195. The Sections VI (Von der Stände-Versammlung) and VII. (Von dem Wirkungskreise

der Stände-Versammlung) in particular adopted regulations from the draft of the Constitution of Württemberg, which had been submitted to the Stä nde- Versammlung by the King on 3 March 1817. Text in Pölitz and Bülau (1847, Vol. 1, pp. 377–411). Cf., for example, VU VI § 17 and Württ. 1817 Art. 275, VU VII § 24 and Württ. 1817 Art. 300. Also in section VIII. (Von der Rechtspflege) literal

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correspondences are apparent, for example, VU VIII. § 3 and Württ. 1817 Art. 160. In all likelihood, the wording of the provision in the Bavarian Constitution that ‘Der König ist das Oberhaupt des Staats, vereiniget in sich alle Rechte der Staatsgewalt, und übt sie unter den von Ihm gegebenen in der gegenwärtigen Verfassungs- Urkunde festgesetzten Bestimmungen aus’ was not taken directly from the French Charte, but from the draft of the Württemberg Constitution (Art. 4): ‘Der König ist das Haupt des Staats, vereinigt in sich alle Rechte der Staatsgewalt, und übt sie unter den, durch die Verfassung festgesetzten, Bestimmungen aus.’

196. Cf., for example, VU II. §4 and 1808 II. § 2, VU II. § 7 and 1808 II. § 8, VU II. § 10 and 1808 II. § 9, VU IV. § 6 and 1808 I. §7, VU IV. § 14 and 1808 I. § 8, VU IX. § 2 and 1808 VI. § 1.

197. See Rimscha (1973, p. 40f.).198. Cf. VU IV. § 8 and Charte Art. 4, 10 and 62.199. See, for example, Hazzi (1819, pp. 58–66).200. Regarding the composition of the Chambre des Pairs, Art. 27 of the Charte merely

stipulated that ‘La nomination des pairs de France appartient au roi. Leur nom-bre est illimité; il peut en varier les dignités, les nommer à vie ou les rendre héréditaires, selon sa volonté.’ Thus, at least in theory it was up to the king to appoint whomever as member of the first chamber. The admission to the second chamber was ‘open’ insofar as the qualification criterion, besides a minimum age of 40, was the annual tax amount, but not a specific societal status. Cf. Art. 38: ‘Aucun député ne peut être admis dans la Chambre, s’il n’est âgé de quarante ans, et s’il ne paie une contribution directe de mille francs.’

201. Besides those limited number of peers who had a right to a seat in the first chamber as members of the royal dynasty (VI. § 2 para. 1), as representatives of the mediatised nobility (VI. § 2 para. 4) or ex officio (VI. § 2 para. 2, 3 and 5), such as the two archbishops, only aristocratic landowners could be appointed hereditary peers by the king (VI. § 3). The king had the right to nominate life- peers without preconditions (VI. § 2 para. 6), but VI. § 4 limited their number to no more than one third of the number of hereditary peers.

202. The number of representatives was not fixed in absolute terms, but to be deter-mined by the number of families in the kingdom before every election so that 7,000 families were represented by one parliamentarian (VI. § 8). The French Charte kept the number of representatives open, too, but took the population of the départements as a basis.

203. In the 12th session of the ministerial conference on 9 April 1818 it was expressly decided that the ‘System der Repraesentation’ should be abandoned in favour of ‘jenes der Stände-Versammlung’ ([BAYHSTA Staatsrat] 1656). In the same ses-sion, Zentner also got his proposal accepted that the name of the representative body should be changed.

204. It is remarkable, though, that the Charte condensed the legislative competences of the chambers in one single article, which codified that every bill had to pass the two chambers (cf. Art. 18). In Bavaria, the constitutional text was vaguer (cf., for example, VII. § 2). Moreover, the fiscal rights of the Stä nde- Versammlung, but also a number of important limitations of these rights in cases of ‘außerordentliche[n] äußere[n] Verhältnisse[n]’ (VII. § 7) and ‘außerordentli-chen und unvorhergesehenen Bedürfnisse[n]’ (VII. § 8) were laid down in detail (cf. VII. § 3–18). Comparable regulations are missing in the Charte.

205. In Great Britain, parliament traditionally forwarded complaints to the govern-ment in the form of ‘petitions’. On the general role of England as a model for

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Bavarian constitutional debates in the late eighteenth and early nineteenth century, see Lenk (1969).

206. Unlike in Great Britain, however, parliamentary control of the executive body in terms of political accountability remained a desideratum not only in France, but in Bavaria, too.

207. One example of such ‘implicit’ adoptions is that the Bavarian Constitution of 1818 imitated the Charte in presenting constitutional guarantees for the citizen no longer as universal rights in terms of natural law, as in the revolutionary period, but as simple legal guarantees granted by the sovereign for his subjects. This is why the Charte does not talk about Droits de l’homme but just Droit public des Français.

208. Sylvia Krauss expresses astonishment that the ‘Vorbildcharakter der franzö-sischen Charte für die bayerische Verfassung – ein Faktum’, was ignored by La Garde (Krauss 1987, p. 88). See, for example, his reports on the new Bavarian Constitution of 13 April 1818, 26 April 1818, 10 May 1818, and 27 May 1818, in Chroust (1935–7, Vol. 1, pp. 52–6).

209. Report of Zentner on the Stä nde- Versammlung, held in the ministerial confer-ence of 7 July 1819. Cited in Doeberl (1918, p. 50f.). In line with this inter-pretation, the Stä nde- Versammlung was not ‘Theilhaberin an der eigentlichen Staats- Gewalt, sondern nur mitwirkend bei der Ausübung einiger Regierungs- Rechte, welche einen vorzüglichen Einfluß auf das Wohl der Staats-Angehörigen haben’ (ibid., p. 51). It was thus only logical that the preamble of the Bavarian Constitution did not characterise the two chambers as an integrative element of the legislation, but only as an institution ‘mit den Rechten des Beyrathes, der Zustimmung, der Willigung’.

210. The constitutional text was actually dated ‘Griesbach, den 22. August 1818’, but did not appear in the law gazette until one week later: [BRB] 1817–44, 1818, No. XVIII. Printed in, for example, Weech (1868, pp. 99–110), Huber (1978 [1961], No. 53, pp. 171–86). For an English translation see, for example, [Constitution of the Grand Duchy of Baden] 1837.

211. Nebenius’ papers reveal that the conciseness of the text, which avoided detailed regulations, aimed not to pre- empt or even hinder the future development of the constitutional text. See [GLAK N NL Nebenius] Conv. 35.

212. Usée (1910, pp. 121–4, citation p. 123).213. [GLAK N NL Nebenius] Conv. 35.214. In Weech (1868, p. 98). The original quotation can no longer be found in

Nebenius’ Nachlaß. It is likely that the corresponding document, like other parts of his constitutional papers, have been lost.

215. Immediate structural parallels cannot be found, though: while the Constitution of Baden contains 83 paragraphs arranged in five sections, the Polish Constitution consists of 165 paragraphs in seven sections. The Polish Constitution of 27 November 1815 is printed in [DPKP] 1815ff., 1815, Vol. 1, pp. 1–103.

216. For a comparative analysis of the constitutional texts see Goldschmit (1918, pp. 33–44).

217. Cf. Section 3.2.4.218. The principle of monarchical inviolability as such was not a particular innova-

tion of the Charte, but appears even in earlier constitutions, for example, the Spanish of 1812, and is also a core element of English constitutional law.

219. Very similar is also the wording of the regulation on the immunity of parlia-mentarians (Charte Art. 52, Poland § 89, Baden § 49), the pre- eminence of the

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second chamber regarding fiscal legislation (Charte Art. 17 and 47, Poland § 97, Baden § 60), the right of the ministers to be heard in the two chambers (cf. Charte Art. 54, Poland § 101, Baden § 76) and on the publicity of the parlia-mentary sessions (cf. Charte Art. 44, Poland § 95, Baden § 78).

220. The wording of the Bavarian Constitution was ‘§ 1. Der König ist das Oberhaupt des Staats, vereiniget in sich alle Rechte der Staatsgewalt, und übt sie unter den von Ihm gegebenen in der gegenwärtigen Verfassungs- Urkunde festgesetzten Bestimmungen aus.’ A textual comparison of the Constitution of Baden with other texts in Usée (1910, pp. 125–39).

221. Cf. VU X. § 4. The responsibility of all state officials went hand in hand with corresponding impeachment procedures. Cf. § 67 para. 1 of the Badenese Constitution.

222. Cf. VU VII. § 21.223. Cf. VU X. § 7. Unlike in Bavaria, however, in Baden those guarantees of the

Constitution were not put together in one specific section of the constitutional text.

224. The common-sense character of many adoptions may be one explanation why Nebenius, with the exception of the Polish Constitution, did not explicitly mention the models he used.

225. [GLAK N NL Nebenius] Conv. 35.226. Cf. Section 3.2.5. Unlike many other contemporaries, Nebenius was aware

that landständisch and repräsentativ was not exactly the same, even though he doubted the practical use of a strict distinction. See Ständische und Reprä sentativ- Verfassung [Kleinere Aufsätze, die Verfassung betr.] in ibid.

227. See Rousseau (1996 [1762]).228. See, for example, Tit. II, Chapter I (3), Art. 7 of the French Constitution of

1791.229. Printed in Weech (1868, pp. 13–19, here p. 14f.).230. It is remarkable that the lower house did not have a special designation, but was

only referred to as ’Second Chamber’ (zweyte Kammer) in the constitutional text.231. These 63 representatives were not directly elected, but indirectly by the mem-

bers of an electoral college (cf. § 34).232. Cf. § 37.233. The linking of local citizenship and suffrage excluded all non- independent

inhabitants from the right to vote, among them villeins, servants and farm labourers (see Andreas 1913b, p. 481).

234. The independence of each of the two chambers included a strict separation of their parliamentary activities, too. Cf. § 75 (1).

235. See Montesquieu (1950 [1758; OV 1748] XI 6).236. Erinnerungen über den Sensburgischen Entwurf II. (22 July 1816), in [GLAK 48

Haus- und Staatsarchiv: III. Staatssachen] 6069.237. Unlike in Great Britain and France, the appointment of hereditary peers was not

explicitly provided for in Baden and indeed never practised in constitutional reality.

238. This subordination was underlined by keeping a low profile as regards the character of the chambers as legal entities. Cf. § 75 (2).

239. Cf. section two of the Constitution, entitled Staatsbürgerliche und politische Rechte der Badener, und besondere Zusicherungen.

240. In Baden, the Code Napoléon had been introduced as Land- Recht für das Großherzogthum Baden in 1810. What followed was ‘eine wohltätige Überflutung

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auch der ö ffentlich- rechtlichen Verhältnisse mit liberalen, rechtsstaatlichen Gedanken’ (Voigt 1948, p. 108).

241. See Kirsch (1999b).242. In like manner, the Charte was also a broker for universal fundamental rights

(see Rimscha 1973, p. 43).243. Cf. section five of the Bavarian Constitution: Von besondern Rechten und

Vorzügen.244. Cf. attachments four to eight of the Bavarian Constitution.245. See Aretin (1976, p. 264).246. Of the male population older than 25 years, actually 70 to 72 per cent had the

right to vote, that is about 16.5 to 17 per cent of the whole population of the Grand Duchy. This proportion was far higher than in any other European state of the time. In France, for example, just about 0.4 per cent of the population were entitled to vote in 1814. Even the liberal Norwegian Constitution of 1814 did not come close to Baden with a percentage of about 11.4 (see Hörner 1987, p. 131).

247. See Weis (2003a, p. 116).248. The substratum of this ‘constitutional topos’, like the idea of a balanced consti-

tution and bicameralism, was for a good part of English origin, but not neces-sarily perceived in a national framework and exclusively linked to Great Britain any longer.

249. See, for example, Hazzi (1819, p. 69f.).250. Montesquieu’s argument (Esprit des lois, XI 6) was that in view of its hereditary

power, the upper house was likely to put its own interests before those of the public. Thus, in areas where the probability of corruption was high, like in financial affairs, the first chamber should only have a right to obstruct (see Montesquieu 1950 [1758; OV 1748], p. 213f.). Even though there are no imme-diate indications in Nebenius’ papers for that, it is likely that § 60 was modelled on the English Constitution.

251. The terminology goes back to Montesquieu (see ibid., p. 214).252. Due to its corporative character, the Swedish Regeringsform of 1809 provided

a rather complicated procedure in the event of disagreement about fiscal bills. If no other solution could be found among the estates, the abso-lute majority of the individual votes should finally decide (cf. § 69 of the Regeringsform).

253. In Norway, ‘voting per capita’ was not only applied for controversial money bills, but for all bills which had not passed the Lagthing after two attempts. In such a case, a two- thirds majority was needed (cf. § 76 of the 1812 Constitution).

254. See Sellin’s terminology of the ‘geraubte Revolution’ (Sellin 2001).255. See Heinrich (1948, pp. 63–5).256. See also Jellinek (1964 [1887], p. 314).257. See Oeschey (1944, especially p. 387).258. Heinrich (1948, p. 64).259. Cf. section VII § 2–19 and section X § 7 of the Bavarian, § 53, 57–9, 64 and 65

of the Badenese Constitution.260. Cf. Art. 18. The only exception from these rules were the emergency powers of

the king, regulated in Article 14 of the Charte.261. That was since the constitutional texts stipulated that not only fiscal bills and

bills aiming at an amendment or change of the existing constitution were sub-ject to the ‘Zustimmung’ of parliament, but also all bills concerning ‘die Freyheit

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der Personen oder das Eigenthum der Staatsangehörigen’ (section VII § 2 of the Bavarian Constitution; § 65 of the Badenese Constitution is literally identical).

262. On this ‘decomposition’ of the legislative spheres, see Jellinek (1964 [1887], p. 110).

5 Constitutional Practice: A Comparison

1. Attempts in this direction have been made recently. See, for example, Kirsch (1999a, pp. 167–70). See also volume two of the Handbuch der Europäischen Verfassungsgeschichte, to be published in 2012, which provides the basis for comparisons of Verfassungswirklichkeit at a European level. Even comparisons between the Southern German states are rare. One exception that proves the rule is Conklin (1972).

2. See Brandt (1987, p. 802), characterising 1830 as a ‘Wendepunkt der politischen Kultur’. In France, the July Revolution even marked a more distinct political and constitutional shift.

3. On Verfassungskultur as an element of constitutional history: Brandt, Schlegelmilch and Wendt (2005).

4. In his introductory speech to the ceremony, which took place at the royal resi-dence in Munich, the King left no doubt about the Constitution’s character as a constitution octroyée. At the end of the ceremony, Max I Joseph personally deco-rated Zentner for his services in the drafting of the Constitution: certainly the best proof for the crucial role he had played (see Doeberl 1918, p. 46).

5. On the perception of and reaction to the Bavarian Constitution of 1818 see Oeschey (1913), Doeberl (1918, pp. 57–62), Franz (1926, pp. 3–55).

6. Verkündigung der landständischen Verfassung in Baiern, in [Neuer Rheinischer Mercur] 1816ff., No. 87, 31 May 1818, p. 351f., citation p. 352. Just a few days after its official proclamation the Constitution was available in printed form all over Germany, including Northern Germany. See, for example, Verfassungsurkunde des Königreichs Baiern, in [Deutscher Beobachter] 1815–19, No. 636, 5 June 1818; No. 637, 9 June 1818; No. 638, 12 June 1818. In the Bavarian press, the release of the Constitution met with general assent, even though with slight regional dif-ferences: while the new Constitution was perceived as a ‘royal gift’ in Altbayern, where former constitutional experiences were lacking, in the Palatinate with its liberal traditions the appraisal was less gushing. See, for example, the report on the proclamation of the Constitution in [Neue Speyerer Zeitung] 1816–53, 27 May 1818.

7. Cited in Doeberl (1918, p. 59). 8. [Patriotische Wünsche] 1818, p. 3. The euphoria in 1818 was similar to that

directly after the Napoleonic Wars in 1814. 9. See, for example, the report of the Bavarian chargé d’affaires, Schoepff, to King

Max I Joseph, dated 12 August 1818, in which he described the positive echo which the release of the Bavarian Constitution had caused in the French media. [BAYHSTA MA] III 2091. Partly printed in Krauss (1987, p. 439f.).

10. See Oeschey (1913, p. 290f.).11. See Heydemann (1995).12. In a letter to his foreign minister, the British envoy in Frankfurt (1817–23) and

Munich (1815–20), Frederick James Lamb, later bluntly criticised the Bavarian Constitution as ‘senseless’. Lamb to Castlereagh, Munich 4 January 1820,

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in [Castlereagh] 1848–53, Vol. 12, pp. 165–8, citation p. 167. One point of criticism from the British was that the Southern German Constitutions were too theoretical and abstract for the broad population, since they lacked ‘practice’: ‘The usual mode of framing constitutions has not begun by employing them. The usual mode of framing constitutions has been to commit the task to some Professor, who reduces an abstract Theory into so tedious a shape that nobody can read it’. Lamb to Castlereagh, Frankfurt/Main 20 June 1820. Partly printed in Heydemann (1995, p. 50f., citation p. 51).

13. [Times] 1783ff., 8 June 1818, p. 3.14. Harl (1818, p. 19). In his text, Harl enumerates 19 explicit ‘Vorteile und Vorzüge

der neuen bayerischen Verfassungsurkunde’ (ibid., pp. 25–8). Similar in Effner (1818).

15. Aretin (1818, p. VI). The aim of his pamphlet was, according to Aretin, ‘im Ganzen das stolze Freudengefühl, welches sich bei dem ersten Erscheinen der Urkunde allenthalben geäussert, zu rechtfertigen und zu verewigen’ (ibid., p. IV).

16. See [Patriotische Wünsche] 1818, p. 4.17. See [Briefe eines Baiers] 1818, p. 1f.18. Feuerbach (1853 [1852], Vol. 2, p. 113). His undiminished Bavarian consciousness

was quite remarkable, since he had plainly sided with the national movement in the previous years. See especially Feuerbach (1966 [1814]).

19. Hornthal (1818, p. 102f.).20. Behr (1818, p. 5f.).21. Hornthal (1818, p. 103).22. Section VII § 1 of the Constitution stated that ‘Jeder Bayer ist verpflichtet, zur

Vertheidigung seines Vaterlandes […] mitzuwirken’, excluding only the clergy from this duty. Section V, § 4 and § 5, however, granted a special status for sons of aristocrats and high state officials.

23. Stimme aus Baiern über die neue Verfassung, in [Neuer Rheinischer Mercur] 1816ff., No. 93, 11 June 1818, pp. 371–74, citation p. 372.

24. Soden (1818, p. 28f.).25. Ibid., p. 34. He underpinned his argument for the need of a strong aristocracy by

referring to Montesquieu. See ibid., p. 32f.26. [Briefe eines Baiers] 1818, p. 9.27. See Behr (1818, p. 32).28. See [Patriotische Bemerkungen] 1818.29. See Hazzi (1819). Joseph Ritter (since 1816) von Hazzi (1768–1845), physiocrat,

writer and Bavarian official, had served in France during the Napoleonic Age.30. [Patriotische Bemerkungen] 1818, p. 4. The Constitution of the United

Netherlands, ‘die in Form eines wechselseitigen Vertrages von einsichtsvollen und patriotischen Männern entworfen, hernach der Nation zur Annahme vorge-legt wurde’, is considered a splendid example for such an agreed constitution (ibid., p. 5).

31. See Hazzi (1819, p. 22).32. Ibid. Similar, but perhaps less harsh, criticism of the unilateral proclamation

of the Constitution can also be found in many other writings of the time. See, for example, Behr (1818, p. 8f.). There is, nevertheless, also a lot of literature in defence of the octroi. See, for example, Aretin (1818, especially pp. 9–12).

33. Hazzi’s pamphlet caused quite a stir in contemporary Germany. While his writing was praised as a sophisticated analysis of the Constitution and sharp critique of its weaknesses in the liberal press, it met with fundamental opposition by others.

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See especially [Bemerkungen] 1819, most probably written by a member of the nobility.

34. The decree of 12 June had promised the execution of the Verfassungs- Urkunde in the Rheinkreis would only take place with modifications appropriate to the existing institutions. The decree of 5 October 1818 finally made these promised modifications explicit. The Erlaß über die Anwendung der Verfassung im Rheinkreis (5 October 1818) in Döllinger (1835–9, Vol. 1, pp. 382–5).

35. [Rheinische Blätter] 1816–20, No. 188, 24 November 1818, p. 802. Similar is the message of the final sentence of Hazzi’s pamphlet on the Constitution (Hazzi 1819, p. 120). His hopeful ending and the praise of the King was certainly a form of a captatio benevelontiae, but also the expression of firm belief that it was possible to perfect the as yet deficient Constitution.

36. Letter of Eduard Freiherrn von Stainlein, Bavarian diplomat in Vienna, dated 12 June 1816. [BAYHSTA MA] II 206a.

37. Metternich to Karl Eduard von Hruby, Karlsbad 10 July 1818, in Chroust (1939–42, Vol. 1, p. 203f., citation p. 204). ‘Alles, was aus München ergeht, ist gegen Österreich’. Ibid., p. 204.

38. Wilhelm I, Elector of Hesse. Report of the Bavarian envoy at the Federal Diet, Aretin, Frankfurt/Main 4 November 1818. Cited in Oeschey (1913, 287f.).

39. On the Bavarian Stä nde- Versammlung during the Vormärz, see Götschmann (2002, bibliography pp. 908–49). See also Sachs (1914) and Grösser (1929). The history of the Landtag in broader historical perspectives is analysed in Ziegler (1995), with detailed evaluations of the available sources in the Hauptstaatsarchiv (see pp. 225–39, 241–9, 269–316).

40. See, for example, Puchta (1818), [Patriotische Wünsche] 1818, Rösling (1819). An overview of the journalistic debate before and during the first Landtag in Franz (1926, pp. 56–81).

41. See, for example, [Zur Stä nde- Versammlung in Baiern] 1819.42. See, for example, Rühl (1819, p. 15). The prerogatives demanded for the parlia-

mentarians differed considerably from the constitutional text, too, and included, among others, the right of initiative.

43. A detailed analysis of the first Landtag in Lerchenfeld (1854, pp. 135–224). The minutes of the two chambers: [VAKKB] 1819–31, [VKRKB] 1819ff.

44. The inauguration of the first Landtag in February proved previous misgivings wrong, which had speculated that the Stä nde- Versammlung might perhaps never be convened like the National-Repräsentation of 1808. See, for example, Aus Bayern, in [Neuer Rheinischer Mercur] 1816ff., No. 142, 11 November 1818, column 1012f.

45. In Doeberl (1928 [1912], p. 594f.). The Landtag of 1819 was well covered by con-temporary newspapers, see especially [Baierische National- Zeitung] 1807–20.

46. In Doeberl (1928 [1912], p. 595).47. This was promptly criticised in the contemporary press as an attitude ‘welche

dem Geist der bayerischen Konstitution nicht mehr entspricht und welche der erfreuenden Entwicklung dieser zarten Pflanze zu einem fruchtreichen Baum in hohem Grade gefährlich werden könnte’ ([Reprä sentativ- Monarchie] 1819, p. 3f.).

48. Weis (2003a, p. 124).49. See, for example, [Neue Stuttgarter Zeitung] 1819, No. 36, 20 February 1819,

p. 143. On constitutional conflict between crown and Landtag during the Vormärz see, for example, Weitzel (2006).

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50. On details about the various initiatives during the first Landtag, see [VAKKB] 1819–31, Vols 1 to 14, 1819. On the legislative role of the Stä nde- Versammlung, see Schwertmann (2006).

51. For the first time after many years the budget for the fiscal period 1819–25 was balanced, with estimated expenses of 31,017,596 guilders and public revenues of 31,126,811 guilders. The Landtag guaranteed the whole existing debt of no less than 105 million guilders and initiated a plan for the settlement of the existing debts. See Doeberl (1928 [1912], p. 597).

52. See Franz (1926, p. 82).53. The Constitution of 1818 did not explicitly mention the procedure or wording of

the oath taking.54. Key information about all Bavarian deputies in the Kammer der Abgeordneten from

1819–45 in Leeb (1996, Vol. 2, pp. 711–815).55. Sturz referred to § 16, § 17 and § 23 of the Edict über die Stä nde- Versammlung,

which in his eyes backed his restrictive interpretation.56. See, for example, [Fresko-Gemälde] 1819.57. See Spaun (1819). For key biographical information on Franz von Spaun (1753–1826)

see [Allgemeine Deutsche Biographie] 1875–1912, Vol. 35, 1893, p. 69f.58. Spaun (1819, Vol. 2, p. 65).59. See ibid., Vol. 2, p. 41.60. See [VAKKB] 1819–31, Vol. 14, pp. 617–29, especially pp. 625–7. The speech aroused

some attention in the rest of Germany, too, and was also printed in a number of non- Bavarian newspapers. See, for example, [Karlsruher Zeitung] 1758–1810; 1817–1933, No. 210, 31 July 1819, p. 985f.; No. 211, 1 August 1819, p. 994f.; No. 212, 2 August 1819, p. 997f.; No. 213, 3 August 1819, p. 1001f.; No. 214, 4 August 1819, p. 1005; No. 215, 5 August 1819, p. 1009f.

61. In Chroust (1949–51, Vol. 1, pp. 204–6, citation p. 204f.).62. Bemerkungen über die ersten Vorgänge in der bayerischen Ständeversammlung, in Stern

(1893, pp. 332–9, citation p. 332).63. Sir Robert Gordon to Castlereagh, Florence 12 July 1819. Cited in Heydemann

(1995, p. 44). See also Brandt (2002, p. 145). On Article 13 of the German Federal Act, see also Wunder (1978).

64. Freiherr vom Stein to Schlosser, 19 June 1819, in Pertz (1849–55, pp. 278–80, cita-tion p. 278). Unlike Metternich, vom Stein was positive about the constitutions and the Bavarian in particular.

65. Report of the Bavarian envoy at the Federal Diet, Aretin, Frankfurt/Main 16 June 1819. Cited in Oeschey (1913, p. 289).

66. Christian Günther Graf von Bernstorff, Prussian foreign minister, to Friedrich Wilhem von Zastrow, Prussian envoy in Munich, Berlin 11 May 1819, in Chroust (1949–51, Vol. 1, p. 209f., citation p. 209).

67. See Ludwig to Egid Ritter von Kobell, Bad Brückenau 15 July 1819. Printed in Meiser (1938, p. 139f.). In his letter, Ludwig even showed some sympathy for the decision of the Stä nde- Versammlung to frustrate the governmental plans to raise the military budget (ibid., p. 139).

68. See Hazzi (1819, p. 13). The lengthy and complex character of the document contributed its part that the perception was not too enthusiastic.

69. See, for example, Soden (1818, p. 10f.).70. See [Verfassungs- Katechismus] 1819. The author of the text is not known, but in view

of its marked appraisal of king, government and fatherland there can be no doubt that the catechism was launched by the government or at least written with its approval.

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71. See, for example, Aretin (1819), [Verfassungs- Katechismus] 1823, [Bayerischer Verfassungs- Katechismus] 1832.

72. Constitutional catechisms were not entirely new and had already been used as an instrument of political (counter-)propaganda during the Napoleonic Age.

73. [Verfassungs- Katechismus] 1819, p. 6.74. See, for example, ibid., p. 7f. Very similar was the line of argument in the French

Charte of 1814.75. See ibid., p. 13.76. See ibid., p. 14.77. The Constitution itself was presented as an important tool to strengthen existing

patriotism. See ibid., p. 64.78. Ibid., p. 17.79. Ibid., p. 27.80. Ibid., p. 32.81. See ibid., p. 42f.82. Like most writings of the time the text perpetuates the common indifference

towards the distinction between representative and landständische constitutions, for example by putting ‘constitutionnelle Monarchie’ on a level with ‘ständische Verfassung’. Ibid., p. 26.

83. Ibid., p. 45.84. Ibid., p. 14.85. While the school system provided an institutionalised and promising basis to

address the young, the question- and- answer form of the catechisms facilitated their use as teaching material.

86. Whether constitutional catechisms were also used in church service remains open, though.

87. See Kobler (1980).88. [Baierische National- Zeitung] 1807–20, No. 126, 26 May 1819, front page.89. The verse is taken literally from the fourth Eclogue of Virgil (line 4). The

same verse had already served as inspiration for the motto on the back of the Great Seal of the United States, Novus ordo seclorum (‘New Order of the Ages’). A reproduction of the coin in Glaser (1980, plate 16).

90. On the hopes the authorities placed in the Constitution and the coin to com-memorate it see [Baierische National- Zeitung] 1807–20, No. 126, 26 May 1819, front page.

91. The donor of the columns was Graf Franz Erwein von Schö nborn- Wiesentheid (1776–1840), its architect Leo von Klenze (1784–1864), who designed the Konstitutionssäule in compliance with the Trajan’s Column in Rome. The inscription at the bottom of the monument: ‘Der Verfassung Bayerns, ihrem Geber Max Joseph, ihrem Erhalter Ludwig zum Denkmale’. Count Schö nborn- Wiesentheid also initiated the installation of a Konstitutionssaal (‘Constitutional Hall’) in the castle, containing medallions with the main principles of the con-stitution on its walls.

92. On the celebration of constitutions by the means of festivities, see Stollberg- Rilinger (2003).

93. See Vorländer (2004 [1999], p. 66).94. Literature on the Hambach Festival is manifold. See, for example, Foerster (1988),

Kermann, Nestler and Schiffmann (2006).95. Not only coins, but also medals were produced to commemorate the Constitution

of 1818. (see [BAYHSTA GH MKH] 152).

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96. ‘Constitutional patriotism’ (Verfassungspatriotismus) is not a nineteenth- century terminology, but a twentieth- century concept originating from political scien-tist Dolf Sternberger. See, for example, Unvergleichlich lebensvoll, aber stets gefähr-det. Ist unsere Verfassung nicht demokratisch genug?, in [FAZ] 1949ff., 27 January 1970, p. 11; Verfassungspatriotismus, in [FAZ] 1949ff., 23 May 1979, p. 1. Even though particularly important in postnational theories and European Studies, the term and the underlying idea that ‘identity’ often relies on a shared sense of values rather than a common history or ethnic origin is also fruitfully applicable in historical contexts (see Sternberger 1990, for example, p. 30).

97. Altogether, 2,340 complaints are known for the period between 1819 and 1918. The records of the Beschwerdeausschuss in the archives of the Bavarian Landtag contain the vast majority, namely 2,250. Ninety additional complaints are exclusively published in the Landtagsverhandlungen (see [VAKKB] 1819–31, 1832ff.). For an analysis of those complaints, see Götschmann (1997), for the Vormärz especially Vol. 1. See also Götschmann (1998).

98. All in all, only 11 appeals were passed on to the monarch in person, who trans-ferred all of them to the Council of State. Two of them were not answered at all, eight were rejected wholesale, and only one was acknowledged as justified, at least partly.

99. Ancillon to Zastrow, Berlin 17 August 1819, in Chroust (1949–51, Vol. 1, pp. 225–7, citation p. 226).

100. Ibid., p. 226f.101. In his reports from Karlsbad, Rechberg campaigned for reactionary measures by

amplifying the spectre of foreign intervention. In Doeberl (1918, p. 69).102. Above all it was the draft of an Executionsordnung, providing the legal basis for

direct, even military, intervention of the Bund against its members, which was cause for serious concern. Besides the ‘Executive Order’, the three other integral parts of the Karlsbad Decrees were the Bundes-Universitätsgesetz, the Bundes-Preßgesetz and the Bundes- Untersuchungsgesetz. The text of the decrees in Huber (1978 [1961], pp. 101–5).

103. Ludwig to Maximilian I. Joseph, Würzburg 1 October 1819, in Lerchenfeld (1887, p. 292f., citation p. 293). The same sentence appears in Ludwig’s letter to Rechberg (Würzburg 1 October 1819, in ibid., p. 294).

104. Ludwig to Maximilian I. Joseph, Würzburg 1 October 1819, in ibid., p. 292f., especially p. 293.

105. Since the German Federal Act stipulated no formal liability to promulgate resolu-tions of the Federal Assembly on the level of the member states, not to make such resolutions public was a way of preventing them gaining legal force.

106. [GKB] 1818–73, 16 October 1819. Concerning the repercussions of the Karlsbad Decrees on the Bavarian Constitution and Bavarian foreign policy, see Lerchenfeld (1883), Treitschke (1883).

107. Various addresses to the King were prepared to thank him for the defence of the Constitution, not least by Behr and Hornthal.

108. Lerchenfeld to Ludwig, Munich 30 October 1819, in Lerchenfeld (1887, p. 296f., especially p. 296).

109. See [BAYHSTA MA] II 38, II 41.110. The King’s message to Zentner in Doeberl (1918, p. 70).111. On Zentner’s diplomatic activities and role during the Ministerkonferenz in

Vienna see Dobmann (1962, pp. 171–91). The conference as such is exhaustively covered in Aegidi (1860–9).

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112. Schlußakte der Wiener Ministerkonferenzen (15 May 1820), in Huber (1978 [1961], pp. 91–100).

113. Cf. also Art. 61.114. Ibid. Under certain circumstances, an exception from this rule was possible:

‘Art. 25 […] Als Ausnahme kann jedoch, in Rücksicht auf die innere Sicherheit des gesammten Bundes, und in Folge der Verpflichtung der Bundes- Glieder zu gegenseitiger Hülfsleistung, die Mitwirkung der Gesammtheit zur Erhaltung oder Wiederherstellung der Ruhe, im Fall einer Widersetzlichkeit der Unterthanen gegen die Regierung, eines offenen Aufruhrs, oder gefährlicher Bewegungen in mehreren Bundesstaaten, Statt finden.’

115. On 27 January 1820 the Crown Prince expressed his thanks to Zentner effusively. Ludwig to Zentner, Munich 27 January 1820, in [BAYHSTA GH NL Ludwig I.] 89/4/4. Zentner himself was very proud of his achievements and accordingly wrote to the King on 28 January with a good amount of self- confidence. Zentner to Maximilian I Joseph, Vienna 28 January 1820, in [BAYHSTA MA] II 42.

116. Schlußakte der Wiener Ministerkonferenzen (15 May 1820), in Huber (1978 [1961], pp. 91–100).

117. For his defence of Bavarian state interests in Vienna, Zentner was rewarded with the post of a secretary of state, even though without portfolio, and the highest Bavarian decoration, the Großkreuz des Verdienstordens der Bayerischen Krone. Moreover, Zentner was enfeoffed with a crown fiefdom in Franconia.

118. The assessment of the Wiener Schlussakte in Europe was inconsistent. The Russian government, for example, welcomed its release, not least because Tsar Alexander I was increasingly convinced that all over Europe the danger of revo-lution was on the advance (see Eich 1986, p. 409). Other governments and poli-ticians, including Castlereagh, took perhaps a less favourable view, but accepted the constitutional path set in Vienna as a domestic issue which gave no reason for diplomatic interventions (see Heydemann 1995, p. 49).

119. See Franz (1926, p. 97). On the political press between 1819 and 1825 see ibid., pp. 81–107.

120. See Treml (1977). Adjustments to the reactionary politics of the Bund, however, did not take place on a constitutional, but rather administrative and hence sub-tler level. On press policy and censorship in Bavaria around and after 1814, see also Piereth (1999).

121. See Stolleis (1976). For the Landtag of 1822 see Götschmann (2002, pp. 399–429).

122. On the Landtag of 1825: Götschmann (2002, pp. 430–66).123. Legally, preventing representatives from taking their seat by refusing them the

necessary leave- of- absence if they were state officials was in conformity with the text of the Constitution (cf. Zehnte Beylage, title I, § 44).

124. Cf. § 81 of the standing orders of the Bavarian Stä nde- Versammlung, in Lerchenfeld (1854, p. 287f.).

125. The Landtagsabschied praised that ‘wir am Ende dieser langen Sitzung mit Beruhigung und Zufriedenheit das Gleichgewicht im Staatshaushalt hergestellt, den Staatscredit auf für die Zukunft auf dauerhaften Grundlagen befestigt [finden]’. In ibid., p. 315. Already in the years before, the development of the budget showed a positive tendency. Cf. the statistics for the period 1820–3 in Lerchenfeld (1854, pp. 414–16).

126. See Lerchenfeld (1887, p. 171f.). On the crucial political and constitutional importance of the ministry of the interior, see Götschmann (1993a).

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127. Legal grounds for censorship in domestic policy matters are present in Article 59 of the Schlußakte der Wiener Ministerkonferenzen (15 May 1820). In Huber (1978 [1961], pp. 91–100).

128. See Wellmer (1826).129. See the contemporary replies to Wellmer’s pamphlet, especially Miller (1826)

and Soden (1826). An overview of constitutional literature between 1825 and 1828 in Franz (1926, pp. 108–47).

130. Thronrede Sr. Majestät des Königs Ludwig I. bei Eröffnung der 4. Ständeversammlung, am 17. November 1827, in [Thronreden und Adressen] 1893, p. 11f., citation p. 11.

131. Not only did the first chamber have severe reservations against reform ambi-tions, but also an active conservative opposition in the second chamber.

132. Even at the time of the Landtag, discord was tangible and manifest, for example in the liberal criticism of the continual exclusion of Behr from the Stä nde- Versammlung. See, for example, Dalberg (1828). At the beginning of the fourth Landtag, Behr himself had cherished the hope that the state authorities would grant him leave- of-absence, not least, because Behr had been in close contact with Ludwig at the time he had been crown prince (see Behr 1828, Vol. 1).

133. See Behr (1830, p. 51).134. On the volte- face of Ludwig I at the beginning of the 1830s, see Gollwitzer (1997

[1986], pp. 443–71). An overview of Ludwig’s reign with further biographical references is Kraus (2003).

135. [BAYSTBM Handschriftenabteilung Ludwig I.-Archiv] Tagebuch 3,85 (6 July 1830).

136. Cited in Doeberl (1918, p. 77).137. In [BAYHSTA GH NL Ludwig I.] ARO 19.138. See the protocol of the Ministerrat (1 October 1830) in [BAYHSTA Staatsrat]

107.139. The only effect was that Ludwig refrained from involving the German

Confederation. See the protocol of the Ministerrat of 1 October 1830 in ibid.140. Verordnung den Vollzug der Bestimmungen des §. 2 der III. Beilage zur Verfassungs-

Urkunde betreffend, in [RBl.] 1826–73, No. 4 1831, 31 January 1831, columns 33–40.

141. Cf. the Dritte Beylage of the Verfassungs- Urkunde of 1818.142. A contemporary list considered 66 of the 128 representatives to be members of

the opposition. The opposition as well as the ‘governmentalists’ still lacked the character of ‘parliamentary parties’, yet the level of organisation became higher (see Kraus 2003, p. 204). On the Landtag of 1831, see Gölz (1926). See also the protocols of the two chambers: [VAKKB] 1819–31 (28 volumes, enclosures 14 volumes), [VKRKB] 1831ff. (13 volumes).

143. Schenk, a passionate poet, had taken over the ministry of the interior from Armansperg on 1 September 1828.

144. See [BAYHSTA Staatsrat] 117.145. Thronrede Sr. Majestät des Königs Ludwig I. bei Eröffnung der Ständeversammlung, in

[Thronreden und Adressen] 1893, p. 14.146. On the standing orders of the Stä nde- Versammlung during the Vormärz, see

Götschmann (1993b).147. Despite the agreement on a Zivilliste, however, the financial situation of the

Bavarian crown continued to be strained and an object of quarrel, basically until the end of the monarchy. See also Aretin (2006).

148. See Gollwitzer (1997 [1986], p. 454).

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149. [BAYHSTA Staatsrat] 129 (31 July 1831).150. Memorandum of Ludwig, dated 25 June 1831, in [BAYHSTA GH NL Ludwig I.]

48/4/2.151. On the watershed- function of the early 1830s in Bavarian history, see Mayring

(1990).152. Verfassungs- Urkunde für das Grossherzogthum Baden (29 August 1818), in [BRB]

1817–44, 1818, No. XVIII. The announcement of the Constitution in the press followed one day later. See [Karlsruher Zeitung] 1758–1810; 1817–1933, No. 240, 30 August 1818, pp. 1153–6.

153. Dankadresse der Stadt und der Gemeinden des Bezirksamts Durlach wegen der Verfassungs- Urkunde, in ibid., No. 248, 7 September 1818, p. 1191f., citation p. 1192.

154. See, for example, Dankadresse der Aemter Rastatt, wegen der Verfassungsurkunde, in ibid. No. 255, 14 September 1818, p. 1223f., Dankadresse der Stadt Karlsruhe wegen der Verfassungs- Urkunde, in ibid., No. 249, 8 September 1818, p. 1195f.

155. Dankadresse des Stadtraths zu Mannheim wegen der neuen Verfassungsurkunde, in ibid., No. 253, 12 September 1818, p. 1211f.

156. See, for example, Dankadresse der Stadt und des Berzirksamts Lahr wegen der Verfassungsurkunde, in ibid., No. 258, 17 September 1818, p. 1235f.

157. See Goldschmit (1918, p. 45f.).158. See Fehrenbach (1996b, p. 19f.).159. Cf. the announcement of these festivities in [Karlsruher Zeitung] 1758–1810;

1817–1933, No. 247, 6 September 1818, p. 1188.160. Verfassungswesen, in [Deutscher Beobachter] 1815–19, No. 663, 8 September

1818.161. See Bemerkungen über die Badische Verfassungsurkunde vom 22. August 1818, in

[Oppositions- Blatt] 1817–20, No. 216, 12 September 1818, columns 1719–22, especially column 1719. The text of the Constitution had been printed in the previous editions of the newspaper (No. 211, 212 and 213); its analysis, includ-ing a section on ‘Treffliches, was diese Verfassung mit anderen Verfassungen gemein hat’, was continued in the following numbers.

162. See [Aarauer Zeitung] 1814–21, No. 110, 14 September 1818, p. 577f.163. See, for example, [Times] 1783ff., 11 September 1818, p. 2.164. See ibid., 24 September 1818, p. 2.165. Bader (1973, p. 52).166. Ueber die Vorzüge der Badenschen Verfassung vor der Baierschen, in [Der Patriot]

1818, Vol. 3, No. 14, September 1818, columns 105–10; No. 15, September 1818, columns 113–17.

167. The criticism of the Badenese Constitution formulated in the Volksfreund aus Schwaben (Stuttgart) was an exception. See [Volksfreund] 1818–21, No. 53, 12 September 1818, p. 341f.

168. [Der Patriot] 1818, Vol. 3, No. 15, September 1818, column 117. His papers reveal that Nebenius attentively observed the perception of ‘his’ Constitution in the German press and excerpted from various articles, including that in Der Patriot. See Urtheile der Presse über die Verfassung. Excerpte. In [GLAK N NL Nebenius] Conv. 35.

169. Ein Wort über die neuverkündete Landesverfassung, in [Freiburger Wochenblatt] 1810–20, No. 73, 12 September, pp. 681–3, citation p. 681f. The full text of Rotteck’s speech: Ein Wort über Landstände (1818), in Rotteck (1841–3, Vol. 2, 1841, pp. 405–14).

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170. Ein Wort über die neuverkündete Landesverfassung, in [Freiburger Wochenblatt] 1810–20, No. 73, 12 September, pp. 681–3, citation p. 683.

171. Cf. § 81 of the Verfassungs- Urkunde.172. See Nebenius’ letter to Reizenstein, dated 5 December 1818, in [GLAK N NL

Nebenius] Conv. 34. Nevertheless, Nebenius took the opportunity to complain about the ungratefulness with which he had been treated after the drafting of the constitutional document, manifest especially in his exclusion from the final deliberations in Griesbach.

173. The need for such a complementation was also emphasised in the contemporary press. See, for example, Die neue Badensche Verfassung, in [Deutscher Beobachter] 1815–19, No. 669, 29 September 1818.

174. [BRB] 1817–44 1818, No. XXVII, 24 December 1818, pp. 171–93.175. On the history of Baden’s early parliamentary life, see especially Becht (2009).

Older works include, for example, Müller (1900, 1901). Even in 1836 Rotteck published the first Geschichte der badischen Landtage (Rotteck 1836).

176. See Rede Seiner Königlichen Hoheit des Großherzogs von Baden gehalten bey Eröffnung der Ständeversammlung am 22. April 1819, in [VSVGB2] 1819–1904, Vol. 1, pp. 14–16, here p. 15.

177. See ibid., p. 16.178. For details of the electoral law and the elections during the Vormärz, see Hörner

(1987). On members, structure and social composition of the Badenese Landtag, see Becht (1980, 1985).

179. See Becht (1984).180. On the decisive political role of the liberal movement in Baden after 1814, see

Gall (1968).181. On the formation of factions in German parliaments from 1819 to 1849, see

Kramer (1968).182. Ludwig August Friedrich von Liebenstein (1781–1824), civil servant, repre-

sentative of the town Lahr. For biographical details see [Allgemeine Deutsche Biographie] 1875–1912, Vol. 18, 1883, p. 564f. For his political activities, see Schnabel (1927).

183. Edict, die Standes- und Grundherrlichen Rechtsverhältnisse im Großherzogthum Baden betreffend (16 April 1819). [BRB] 1817–44, 1819, No. XIV, 21 April 1819, attach-ment.

184. An exhaustive analysis of the Landtag in 1819 is Müller (1900). The works of contemporaries are also of value, for example, Rotteck (1836), Soiron (1843).

185. See the Mémoire of Franz Joseph Haecker, member of the Bavarian second cham-ber (May 1819). Printed in Chroust (1949–51, Vol. 1, pp. 214–18).

186. See Heydemann (1995, p. 46f.).187. [Castlereagh] 1848–53, Vol. 12, p. 179. See also Gruner (1990).188. See Eich (1986, p. 388f.).189. La Garde to Dessolle, Munich 4 June 1819, in Chroust (1935–7, Vol. 1,

pp. 102–5).190. See the letter of Joann Kapodistrias, secretary of state in the Russian foreign min-

istry, to Palen, Warsaw 29/17 March 1818, in [BAYHSTA Russische Gesandtschaft München] 2.

191. See Blittersdorf to Berstett, St. Petersburg 4 November 1819, in [GLAK 48 Haus- und Staatsarchiv: III. Staatssachen] 2686.

192. See Eich (1986, p. 386f.).

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193. In [BRB] 1817–44, 1819, No. XXVIII, 10 November 1819.194. Verordnung, wie die Zensur der Druckschriften nach dem Beschluß des Deutschen

Bundes vom 20sten September d. J. auf fünf Jahre einzurichten ist, in [GKP] 1810–1906, No. 564, 1819, pp. 287–96.

195. Due to a grand- ducal decree of 16 July 1819, new political newspapers had been allowed to be published in Freiburg, Constance and Mannheim.

196. See Arnold (2003, here p. 247). It was only in the 1830s and 1840s that the liberal press in Baden saw a revival (see Müller 1986).

197. In Weech (1868, p. 117).198. Metternich to Berstett, Vienna 4 May 1820, in Klüber (1845 [1844], pp. 315–20,

citation p. 317).199. See [BRB] 1817–44 1820, No. VIII, 27 May 1820.200. On the session of 1820 see Müller (1901, pp. 15–98). See also the protocols of

both chambers: [VSVGB1] 1819–20, [VSVGB2] 1819–1904. The lengthy proto-cols and attachments were made accessible by a detailed register, published in 1821 ([VSVGB] 1821).

201. See Rede Sr. königlichen Hoheit des Großherzogs beym Schlusse des ersten Landtags am 5ten September (5 September 1820), in [VSVGB2] 1819–1904, 1820, Vol. 9, p. 231f.

202. Instead, the government now sought for individual negotiations with those concerned. In return for the granting of certain privileges, the mediatised nobles should renounce special administrative and judiciary rights. On the Badenese Standesherren, see Furtwängler (1996).

203. See Ullmann (1992, p. 66f.).204. In the end, the quarrel was about 50,000 guilders of a total (proposed) military

budget of 1.25 million guilders.205. See [Allgemeine Deutsche Biographie] 1875–1912, Vol. 14, 1881, p. 649f.206. The formal closure of the Landtag only followed on 11 December 1824. For an

overview of the sessions in 1822 and 1823 see [VSVGB] 1823.207. See [BRB] 1817–44, 1823, No. III, 10 February 1823, pp. 9–16, especially p. 9.208. See Ullmann (1992, p. 67). In January 1823, Baden also took part in delibera-

tions of various conservative member states of the German Confederation in Vienna, discussing means to restrict existing constitutions by federal legisla-tion.

209. [Allgemeine Deutsche Biographie] 1875–1912, Vol. 2, 1875, p. 706f.210. In Weech (1868, p. 118).211. See Goldschmit (1918, p. 57).212. In June 1824 Blittersdorf directed another memorandum to Metternich, in

which he declared the Badenese Constitution, which had been modelled in compliance with the French Charte, inappropriate for the needs of the country: ‘Vielleicht lässt sich mit der Zeit die Repräsentativverfassung in eine dem deut-schen Geiste mehr entsprechende ständische Verfassung umwandeln.’ In Weech (1868, p. 120f., citation p. 121).

213. See [Allgemeine Deutsche Biographie] 1875–1912, Vol. 44, 1898, pp. 646–52.214. In Weech (1868, pp. 121–6, citation p. 121).215. See ibid., p. 122.216. In Weech (1868, p. 126–30, especially p. 127).217. See Goldschmit (1918, p. 61f., citation p. 62).218. Report of the government to Grand Duke Ludwig I (14 January 1825), in Weech

(1868, p. 131f., citation p. 131).

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219. See ibid., p. 132.220. Hörner (1987, p. 434). On ways of exerting influence on the outcomes of

elections in Vormä rz- Baden see ibid., pp. 432–68, for the elections of 1825 especially pp. 434–8.

221. In the first two Landtage, Rotteck had been the representative of the University of Freiburg in the first chamber. In 1825 he tried to become elected for the second chamber. In his Staats- Lexikon (entry: Baden als constitutioneller Staat), Rotteck later reported vividly about the manipulations of the elections in 1825 (see Rotteck and Welcker 1834–43, Vol. 2, p. 117f.).

222. See the protocol of the session on 29 March 1825 in [VSVGB2] 1819–1904, Vol. 3, 1825, pp. 519–69. One of the two complaints had been drafted by Rotteck. On its main contents see ibid., pp. 472–5.

223. In ibid., Vol. 1, 1825, pp. 17–20, citation p. 20.224. [BRB] 1817–44 1825, No. VI, 21 April 1825. The law itself was dated 14 April.225. A contemporary report about the Landtag of 1825 in [Hermes] 1819–31, Vol.

27, 1826, pp. 241–311 (Verhandlungen der badischen Landstände im J. 1825). For a detailed overview of the agenda see the official register: [VSVGB] 1825.

226. For the subjects of the fourth Landtag, see [VSVGB] 1828.227. Report of Karl Graf von Reigersberg (18 March 1828), in [BAYHSTA MA] 2022.

The creation of an institution for deaf-mutes had actually been on the agenda for the Landtag.

228. A general Rechts- Katechismus was already published in 1824. See [Rechts- Katechismus] 1825 [1824]. Specific ‘constitutional catechisms’, however, became only popular in the 1830s: [Katechismus] 1833, Kintzinger (1831), [Katechismus des Gemeinderechts] 1838.

229. Alike constitutional catechisms, political festivities became an important element of Badenese constitutional culture not earlier than in the 1830s (see Nolte 1993, Wien 2001). One of the few political festivities in the 1820s was the Karl- Friedrich-Säkularfest in November 1828.

230. See [Allgemeine Deutsche Biographie] 1875–1912, Vol. 43, 1898, pp. 465–8.231. See Fenske (1992, p. 85).232. See the memorandum Winter’s Über Ausübung eines Einflusses der Regierung auf

die Wahlen, dated 18 November 1830. Printed in Weech (1894, pp. 601–5).233. Circular an die Kreisdirektoren (18 November 1830), attached to Winter’s memo-

randum. Printed in ibid., pp. 605–7.234. For statistical information about the composition of the chamber, see Becht

(1980). On the overwhelming success of the progressive forces, see also Rotteck (1833, p. 17).

235. In [Karlsruher Zeitung] 1758–1810; 1817–1933, No. 83, 24 March 1831, pp. 586–8, citation p. 586.

236. [BRB] 1817–44 1831, No. X, 13 June 1831. The law is dated 8 June 1831.237. Ibid., No. VIII, 17 February 1832.238. On agrarian policy in Baden during the Vormärz, see Zeile (1989).239. Gesetz über die Polizei der Presse und über die Bestrafung der Preßvergehen, in [BRB]

1817–44, 18320, No. II, 12 January 1832, pp. 29–42.240. The politicisation finds expression in that no less than 2,200 popular petitions

were directed to the Ständeversammlung on the occasion of the fifth Landtag (see Fenske 1992, p. 85).

241. See Wien (2001, pp. 67–96).242. See [BRB] 1817–44 1832, No. 42, 30 July 1832, p. 371f.

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243. Brandt (2002, p. 146).244. Langewiesche (2004 [1985], p. 61).245. For biographical details see [Allgemeine Deutsche Biographie] 1875–1912, Vol. 41,

1896, pp. 660–5.246. See, for example, Blittersdorf’s letter to the envoy of Baden in Vienna, Freiherrn

von Tettenbor, dated 12 April 1839. In Blittersdorf (1849, pp. 24–7).247. On the interrelation between constitutionalism and social movement in Baden

from 1830 to 1848/1849, see Nolte (1996).248. The international perception of the Charte is well reflected in that translations

of the constitutional document, in journals and in book form, soon became available in various European languages.

249. Saint-Pétersbourg, 6/18 juillet 1814, in Maistre (1860, Vol. 1, p. 379). On the dif-ferences in the interpretation of the new Constitution even among monarchists cf. Section 2.4.

250. Grégoire (1814, p. 6). On Grégoire: Necheles (1971).251. [De la Charte constitutionnelle] [1814], p. 2.252. Ibid., p. 3.253. Ibid., p. 7.254. The London Times, for example, referred to the differences between the French

Charte and the English Constitution as early as in June 1814: ‘It [the Charte; MJP] approaches much nearer to our own in form than in substance; but it is most obvious that the British constitution, such as it exists in presence, would in no manner suit the present circumstances of the French nation; and if it suits them, where are its materials to be found? Where is an independent Peerage possessing four millions of rental, and an House of Commons possessing two millions? Yet this is the real strength of the English Constitution. Without this, the bossied balance of the three Estates would be an infant’s dream. When there-fore, we hear of a King, a Chamber of Peers, and a Chamber of Representatives, we must not expect that they will perform the functions of the analogous bodies in our own government.’ [Times] 1783ff., 9 June 1814, p. 3.

255. See Eich (1986, p. 303). Tsar Alexander I had supported the Senatorial draft (cf. Section 2.1.1 and especially note 54), but had no reservations against the Charte, either. That was demonstrated in that the Tsar made the Charte the actual model for the Polish Constitution of 1815 (cf. Section 3.2.4 and especially note 165).

256. See, for example, [Times] 1783ff. 15 June 1814, p. 3: ‘The Government of Louis XVIII has […] the most prudent views as to foreign affairs, and, certainly, the very best intentions.’

257. Metternich’s Autobiographische Denkschrift (1844), in Metternich (1880–4, Vol. 1, pp. 7–219, citation p. 213). Even harsher was the criticism of Friedrich von Gentz, who did not mince matters in a private letter to Metternich, dated Vienna 24 April 1814: ‘Lieber hätte ich Napoleon selbst mit der Rhein- und Alpengrenze behalten, als unter dem täuschenden Scheine der Wiederherstellung der Bourbons den vollständigen Triumph aller falschen und verderblichen poli-tischen Grundsätze erlebt’ (in Gentz 1909–13, Vol. 3(1), pp. 292–5, citation p. 293). Even though the opinion of Metternich’s aide might have been slightly less critical after the proclamation of the Charte in June, the fact that Louis XVIII was able to repudiate the principle of popular sovereignty expressed in the Senatorial Constitution was only a cold comfort for the Austrian government: despite the principle of ‘monarchical sovereignty’ being codified, the constitu-tional document was still considered as essentially ‘revolutionary’.

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258. In [Edinburgh Review] 1802–1929, Vol. 24, No. 48, February 1815, p. 533. The Edinburgh Review, founded in 1802, became one of the most influential British magazines of the nineteenth century. The magazine began as a literary and political review. Under its first editor, Francis Jeffrey, it was a strong supporter of the Whig party and laissez- faire politics, and regularly called for political reform. Its main rival was the Quarterly Review, supporting the Tories.

259. Ibid., p. 535f.260. On the personal role of Louis XVIII see, for example, Mansel (2005 [1981]).261. On strategies of national reconciliation in Restoration France, see Frederking

(2008).262. See Pilbeam (2000, p. 4f.).263. Actually, the members of the cadre were not dismissed, but just released with

their half pay in order to fulfil Art. 69 of the Charte.264. See Teyssier (2000, p. 295f.). The restoration of the Maison militaire as the basis of

a later Garde Royale (see Mansel 1988, pp. 117–28) was not only a prestige project, but should also provide the crown with loyal military forces in the capital.

265. The parliamentary report of Baron Louis, the minister of finance, on 22 July 1814 about the budget for 1814 and 1815 offers a detailed account of the dra-matic financial situation in France. See [AP] 1862ff. [1800–60], Vol. 12, 22 July 1814, pp. 165–200.

266. See Bury (1948, p. 182). The text of the peace contract, which reduced France’s borders to the state of 1792, in [AP] 1862ff. [1800–60], Vol. 12, 30 May 1814, pp. 27–31.

267. In an emergency sitting of both parliamentary chambers, Louis XVIII made a stirring appeal to the French nation. In [AP] 1862ff. [1800–60], Vol. 14, 16 March 1814, pp. 338.

268. The decree of the King in ibid., 16 March 1814, pp. 349f.269. Acte additionnel aux Constitutions de l’Empire (22 April 1815), in [BL] 1815, Vol.

1, No. 19 (No. 112), pp. 131–40. The Acte additionnel, drafted by Benjamin Constant, liberalised some of the provisions of the Charte, especially the right to vote (see Des collèges électoraux et du mode d’élection; Art. 27–33), but did not contain many innovations. The right of initiative for the parliament remained restricted (see Art. 23–5), and ministerial responsibility remained limited to legal offences (see Titre IV Des ministres, et de la responsabilité; Art. 38–50).

270. Déclaration au peuple français (22 June 1815), in [AP] 1862ff. [1800–60], Vol. 14, p. 504.

271. Traité du 20 novembre 1815, conclu entre la France et les puissances alliées (20 November 1815), in ibid., Vol. 15, pp. 308–12. On the same day, the Quadruple Alliance was renewed. Traité de la quadruple alliance entre l’Autriche, la Grande- Bretagne, la Prusse et la Russie, conclu à Paris, le 20 novembre 1815 (20 November 1815), in ibid., p. 325f.

272. The establishment of this Conference in particular was detrimental to the repu-tation of Louis XVIII, accused of having restored his throne as an entourage of the allied armies anyway (see Juge 1815, p. 5; Beugnot 1866, Vol. 2, p. 306; and also Duprat 2000).

273. Proclamation du Roi (25 June 1815), in [BL] 1815–24, Vol. 1, No. 1, p. 1f.274. Proclamation du Roi aux Français (28 June 1815), in ibid., No. 2, pp. 2–4.275. Ibid., p. 4.276. See Pilbeam (2000, p. 7), Thamer (1994, p. 381).277. See Prutsch (2006, pp. 66–9).

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278. Ordonnance du Roi (24 July 1815), in [AP] 1862ff. [1800–60], Vol. 15, p. 23.279. Ordonnance du Roi (17 August 1815), in ibid., p. 29f.280. Projet d’Acte constitutionnel, présenté par la commission centrale de la Chambre des

représentants (29 June 1815), in ibid., Vol. 14, pp. 570–3.281. A pure affront to Louis was that the draft did not even mention the Bourbon

dynasty as the heir apparent, thus implying the French nation’s ability to freely choose their king or perhaps even emperor (cf. Art. 11).

282. The parliamentary minutes recorded shortly: ‘les portes du palais étant fermées, les avenues gardées par la force armée, et les officiers qui la commandaient, ayant annoncé qu ils avaient l’ordre formel de refuser l’entrée du palais.’ Ibid., 8 July 1815, p. 625.

283. Ordonnance du Roi portant dissolution de la Chambre des Députés, convocation des Colléges électoraux, et Réglement provisoire pour les Élections (13 July 1815), in [BL] 1815–24, Vol. 1, No. 9, pp. 13–19, citation p. 13f.

284. In a first step, the electoral colleges at the level of the arrondissements were supposed to elect representatives for the level of the départements. In a second ballot, these representatives had to elect the members of the Chambre des Députés. See Art. 2–7 of the electoral provisions. Ibid., p. 14f.

285. See Art. 8 and 10. Ibid., S. 15.286. Louis’ political style somewhat corresponded with his calm and pragmatic

disposition. In his autobiography, Chateaubriand later summarised the person-ality and reign of Louis XVIII as follows: ‘Égoïste et sans préjugés, Louis XVIII voulait sa tranquillité à tout prix: il soutenait ses ministres tant qu’ils avaient la majorité; il les renvoyait aussitôt que cette majorité était ébranlée et que son repos pouvait être dérangé; il ne balançait pas à reculer dès que pour obtenir la victoire; il eût fallu faire un pas en avant. Sa grandeur était de la patience; il n’allait pas aux événements, les événements venaient à lui’ (Chateaubriand 1849–50, Vol. 7, p. 217).

287. In [AP] 1862ff. [1800–60], Vol. 15, 7 October 1815, p. 36.288. The success of the ultra- royalists in the elections was not least due to the intimi-

dation of the people by the White Terror in the summer of 1815.289. On the ultra- royalist movement see Oechslin (1960).290. See Vitrolles (1815).291. See Chateaubriand (1816, p. 95): ‘introuvables, comme un bienfait de la

Providence.’292. Ordonnance du Roi portant dissolution de la Chambre des Députés, et convocation

des Collèges électoraux (5 September 1816), in [BL] 1815–24, Vol. 3, No. 1081, pp. 177–82. On the background and the motivations of the royal ordinance of 5 September, see Duvergier de Hauranne (1857–71, Vol. 3, pp. 422–544).

293. See Bertier de Sauvigny (1999 [1955], p. 146), Prutsch (2006, p. 77). The law confirmed the annual partial renewal of the chamber and the electoral age restrictions provided in the Charte.

294. The text of the law in [AP] 1862ff. [1800–60], Vol. 20, 5 February 1818, pp. 638–42.

295. On 2 March 1819, the centre- right orientated Chamber of Peers demanded the modification of the electoral colleges. See ibid., Vol. 23, 2 March 1819, p. 126. A few days later, the Chamber refused its consent for a financial project of the government (ibid., 6 March 1819, p. 167). In reaction, 59 new peers were appointed. See Ordonnance du roi portant nomination de 59 pairs (9 Mach 1819), in ibid., p. 185f.

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296. Three laws prescribed the definition of press offences and a catalogue of penalties, procedures to prevent such offences, and prerequisites for the publication of periodical writings.

297. Regarding the persistence of Napoleonic centralism after 1814, see Thadden (1972).

298. On French contemporary foreign politics and diplomacy, see Contamine (1970), Marcowitz (1997).

299. In 1815, the Council of Ministers was instated. Its first president (président du con-seil des ministres) was Talleyrand, appointed on 9 July 1815. Ordonnance du Roi qui nomme à differens Ministères (9 July 1815), in [BL] 1815–24, Vol. 1, No. 5, p. 6f.

300. See Gangl (1966, pp. 296–306).301. Notwithstanding that the text of the Charte only provided for the right to

approve taxes, the view gained acceptance as early as 1814 that the chambers also had the right to decide about public expenses and individual budgetary items.

302. The right to interrogate, which was particularly used during deliberations on governmental bills, was restricted insofar as there was no obligation to reply to parliamentary questions.

303. On the formation of an early party system in France, see Artz (1931), Albertini (1961).

304. Charles René Pictet de Rochemont was the first Bavarian envoy in Paris after Napoleon’s fall. His main task was to observe the internal state of France, in particular the prospects for a stable domestic order and the consolidation of the monarchical system. See Montgelas’ instructions for Rochemont: Instructions pour le Sr Charles René Pictet de Rochemont comme chargé d’affaires près S.Mté. le Roi de France et de Navarre, Munich 4 January 1816, in [BAYHSTA MA] III 2090.

305. Pictet de Rochemont to Montgelas, Paris 1 March 1816, in ibid. Partly printed in Krauss (1987, p. 421).

306. Pictet de Rochemont to Montgelas, Paris 23 May 1816, in [BAYHSTA NL Montgelas] 86. Partly printed in Krauss (1987, p. 421f.).

307. Pictet de Rochemont to Montgelas, Paris 27 March 1817, in [BAYHSTA MA] III 2090. Printed in Krauss (1987, p. 423).

308. Rechberg to Max I Joseph, Paris 20 September 1817, in [BAYHSTA MA] III 2090. Partly printed in Krauss (1987, p. 423f.).

309. Ibid.310. Stricto sensu, the terms ‘parliamentarism’ and ‘parliamentary government’ are

not synonymous. Parliamentarism describes a method of decision- making, according to Hans Kelsen the ‘Bildung des maßgeblichen staatlichen Willens durch ein vom Volke auf Grund des allgemeinen und gleichen Wahlrechts, also demokratisch, gewählten Kollegialorganen nach dem Mehrheitsprinzip’ (Kelsen 1926, p. 5f.). In contrast, ‘parliamentary government’ is a specific form of government, characterised by mutual interrelations between the legislative and executive body. It thus corresponds to Montesquieu’s maxim ‘il faut que […] le pouvoir arête le pouvoir’ (Montesquieu 1950 [1758; OV 1748], p. 206).

311. The imminent political importance of this event is reflected in that just a few hours after the Duke of Berry had died from his wounds, both chambers were convoked for a special session (see [AP] 1862ff. [1800–60], Vol. 26, 14 February 1820, pp. 192–8). For background information on the assassination and the assassin, see Malandain (2000).

312. Presentation of the bill in the second chamber, in [AP] 1862ff. [1800–60], Vol. 26, 15 February 1819, p. 198f., citation p. 199.

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313. Text of the law in ibid., Vol. 28, p. 520f.314. In ibid., Vol. 28, 23 May 1820, p. 60f.315. In ibid., 27 May 1820, pp. 152–5, citation p. 152.316. See ibid., p. 153.317. The law was passed on 12 June 1820 in the Chamber of Deputies and on 28 June

1820 in the Chamber of Peers.318. See Bertier de Sauvigny (1999 [1955], p. 170f.).319. A corresponding law for the répression des délits de la presse was passed in March

1822. See [AP] 1862ff. [1800–60], Vol. 35, 7 March 1822, p. 290; 23 March 1822, p. 610.

320. See Mansel (2005 [1981], p. 410).321. A valuable analysis of the portrayal and orchestration of the Restoration monar-

chy under Louis XVIII is Wrede (2003).322. See Schoch (1975, pp. 34–6).323. François Gérard, Louis XVIII in His Study at the Tuileries (1817, Versailles, Musée

National). Printed in Wrede (2003, p. 236). See also Prutsch (2006, cover). On the positive public perception of the painting see Gérard (1867, p. 337).

324. The metaphor of the King as a pater patriae was frequently used by Louis in his addresses to the chambers, but also in other contexts. See Mennechet (1832–3, Vol. 1, p. 363).

325. See Mansel (2005 [1981], pp. 282–4).326. On deficits in this respect during the Ancien Régime, see Viguerie (1987).327. See Waresquiel and Yvert (2002 [1996], p. 154, 229).328. See Wrede (2003, p. 244f.). On political festivities in the Restoration, see Waquet

(1981).329. On the French courts between 1789 and 1830, see Mansel (1988). Mansel under-

lines that despite its size and splendour, the court was not at all incompatible with constitutional government after 1814, but indeed an important legitimis-ing factor. Besides that, the court helped to ‘adapt’ the nobility to the new constitutional order. Ibid., p. 190.

330. Worthy of note is François Gérard’s painting Entry of Henry IV into Paris (1817, Versailles, Musée National), which allegorised the return of Louis XVIII. See Kaufmann (1975); a print of the painting in ibid., p. 795.

331. See, for example, Jones (1993).332. See Thomas (1996, p. 56, 180).333. See Waresquiel and Yvert (2002 [1996], pp. 67–77).334. Programmatic for the synthesis of Charte and King is a portrait of Louis XVIII by

Paulin Guérin (1820, Versailles, Musée National; reproduction in Wrede 2003, p. 258), which shows the crown insignia resting on the constitutional docu-ment, and a fresco in the Panthéon, depicting King and Charte as inseparably bound up with each other (reproduction on the front page of Sellin 2001).

335. See, for example, Le Gendre (1820).336. See Yvert (1991).337. Rechberg to Max I Joseph, Paris 31 March 1819, in [BAYHSTA MA] III 2092/1.

Partly printed in Krauss (1987, p. 429f.). In Rechberg’s eyes it was favourable for the stabilisation of the regime that, unlike 1789, there was no longer a ‘revolu-tionising’ spirit predominant in the society, but rather a ‘preserving’.

338. Besides older works on Charles- Philippe, Comte d’Artois (1757–1836), such as Vedrenne (1878) and Lucas- Dubreton (1962 [1927]), there are also more recent biographies, for example, Cabanis (1972), Castelot (1988).

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339. Bagge (1952, p. 183).340. Hillebrand (1881 [1877], p. XX).341. Speech of Charles X at the occasion of the opening of the parliamentary session

1824, in [AP] 1862ff. [1800–60], Vol. 42, 22 December 1824, p. 577f., citation p. 578.

342. The sacre du roi (‘consecration’) was performed by the Archbishop of Reims and even featured a ceremony where Charles touched sufferers of the ‘King’s Evil’ (scrofula), the last time this ancient ritual was performed. On this anachronistic tradition, see Marc Bloch’s classical work Les Rois thaumaturges (Bloch 1924). On the coronation of the French kings in general, see Jackson (1984).

343. See Gain (1928, Vol. 2, p. 412). For details see Franke- Postberg (1999). The esti-mated value of the biens nationaux was 1 billion francs.

344. See Schulze (1993).345. See [AP] 1862ff. [1800–60], Vol. 44, 15 April 1825, p. 694; Vol. 45, 9 May 1825,

p. 404.346. Particularly after Charles’ ascension to the throne, the memory of Louis XVI

and the regicide of 1793 was kept alive by different means, for example church services, processions and commemorative coins (see Wrede 2003, p. 254f.).

347. The Code civil already offered the possibility to abstain from the distribution of an estate among heirs. The new bill, which should be applicable for estates with an annual tax of more than 300 francs, now aimed to set primogenital right as a standard, while keeping distribution as an option.

348. See, for example, the speech of the Duke of Broglie on 4 April, in [AP] 1862ff. [1800–60], Vol. 46, 4 April 1826, pp. 610–24.

349. See ibid., Vol. 47, 8 April 1826, pp. 17–26.350. Even the venerable Académie française protested formally against the initiative

of the government. See Bertier de Sauvigny (1999 [1955], p. 389).351. Ordonnance du roi portant retrait du projet du loi sur la presse (17 April 1827), in [AP]

1862ff. [1800–60], Vol. 51, p. 215.352. Ordonnance du Roi portant dissolution de la Chambre des Députés et convocation des

collèges électoraux (5 November 1827), in ibid., Vol. 52, p. 522.353. For the – more or less fraudulent – toolset of electoral influence and manipula-

tion in France during the Restoration, see Bertier de Sauvigny (1999 [1955], pp. 296–8).

354. See Kirsch (1999b, p. 342).355. See [AP] 1862ff. [1800–60], Vol. 53, 25 March 1828, pp. 147–52; 14 April 1828,

pp. 294–301. Both bills were passed by the chambers with a few modifications.356. See Bertier de Sauvigny (1999 [1955], pp. 413–16).357. It is significant that Martignac, unlike his predecessors and his successor,

was not bestowed the title Président du Conseil des Ministres (see Gangl 1966, p. 299).

358. Garnier (1967, p. 114).359. Ordonnances portant changement de ministère (8 August 1829), in [AP] 1862ff.

[1800–60], Vol. 61, p. 513f. On 17 November Polignac was formally appointed head of the government. Ordonnance nommant le prince de Polignac, président du conseil des ministres (17 November 1829), in ibid., p. 515.

360. The new minister of the interior, La Bourdonnaye, had been actively involved in the terreur blanche of 1815, and the minister of war, Bourmont, was reputed to have betrayed Napoleon on the eve of the Battle of Ligny, three days before the Battle of Waterloo.

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361. [JD] 1815–1944 10 August 1814, p. [2].362. Ibid.363. In a conversation with Polignac, Chateaubriand elaborated on the irrevocabil-

ity of his decision to resign as French ambassador in Rome (see Chateaubriand 1849–50, Vol. 9, p. 153).

364. In [AP] 1862ff. [1800–60], Vol. 61, 2 March 1830, p. 543f., citation p. 544. On the immediate effect of the speech in the parliament, see Duvergier de Hauranne (1857–71, Vol. 10, p. 420).

365. See Prutsch (2006, pp. 95–8). For the debates on 15 and 16 March see [AP] 1862ff. [1800–60], Vol. 61, pp. 568–89 and 593–618.

366. In [AP] 1862ff. [1800–60], Vol. 61, 18 March 1830, p. 618f.367. In ibid., p. 619.368. Ordonnance du roi portant dissolution de la Chambre des Députés et convocation des

collèges électoraux pour le 3 août [sic!; the electoral colleges were actually con-vened for the 23 June; on 3 August the chambers should be reopened] (16 Mai 1830), in ibid., Vol. 61, p. 621.

369. Cottu (1830, p. 119).370. Proclamation du roi aux électeurs (13 June 1830), in [AP] 1862ff. [1800–60],

Vol. 61, p. 623.371. On the composition of the chamber in the final years of the Restoration, see

Higonnet (1968).372. Pilbeam (1990, p. 163).373. These three ordinances were supplemented by a fourth, regulating the con-

vening of the electorate committees. The text of the decrees in [AP] 1862ff. [1800–60], Vol. 61, p. 639–41.

374. On constitutional aspects of the July Revolution, see Prutsch (2006, pp. 103–42; 2008; 2009c).

375. Concerning the socioeconomic and political prerequisites for the Revolution, see Haupt (1971).

376. These protest notes (text in [AP] 1862ff. [1800–60], Vol. 61, p. 641f.) were published on 27 July in a number of newspapers who disobeyed the ban on publication. A detailed contemporary account of the events in Paris is [Narrative] 1830.

377. Louis- Philippe was presented as the best political alternative, as a roi citoyen, who had never opposed the French nation. See [Le National] 1830ff., 31 July 1830.

378. In [AP] 1862ff. [1800–60], Vol. 61, 31 July 1830, p. 644f., citation p. 645.379. See the parliamentary protocols of 7 and 9 August 1830 in ibid. Vol. 63,

pp. 61–89. Charles X and the Dauphin had renounced the throne on 2 August 1830, but basically only in favour of Charles’ grandson Henri, the Duke of Bordeaux, who was still a child.

380. The new Constitution was proclaimed on 14 August: Charte constitutionnelle (14 August 1830), in [BL] 1814–48; 1830–48, Vol. 1, No. 59, pp. 51–64. A com-parison of the two versions in Prutsch (2006, pp. 203–31).

381. This title had already been used in the first French Constitution of 1791 (Chapter II, article 2).

382. Ponteil (1966, p. 150).383. Art. 13: ‘Le roi […] fait les règlements et ordonnances nécessaires pour

l’exécution des lois, sans pouvoir jamais ni suspendre les lois elles-mêmes, ni dispenser de leur exécution.’

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384. A definitive regulation or even an abolition of property qualifications did not take place but was postponed for the time being. A new electoral law was finally passed on 19 April 1831 (edited in Berlia 1952 [1898], pp. 200–11), which did not meet expectations in society for a radical liberalisation. Census was only reduced from 300 to 200 francs (right to vote) and from 1,000 to 500, respec-tively (right to be elected). Nevertheless, the number of voters at least doubled from about 100,000 to around 200,000.

385. On Guizot’s specific concept of legitimacy and sovereignty, see Craiutu (2002).386. Bagge (1952, p. 179). See especially Rosanvallon (1994).387. The Second Empire under Napoleon III was certainly ‘monarchical’, too, but

fundamentally differed from both the Bourbon kingdom of 1814–30 and the Orleanist of 1830–48.

388. For the European dimension of the July Revolution see, for example, Church (1983). An overview of the state of research in Langewiesche (2004 [1985], pp. 156–62).

389. Text of the Constitution in Huyttens de Terbecq (1844–5, Vol. 4, pp. 124–32). On the references to the Charte of 1830 in the debates for a new Belgium Constitution, see Gilissen (1967, especially p. 54), Thielemans (1990). A com-parison of the two constitutional texts in Kirsch (1999b, pp. 143–9).

390. See, for example, Phillips and Wetherell (1995). On the role of the July Revolution for the Reform Act, see Quinault (1994). Among the most prominent foreign critics of the Act at the time was Hegel, who polemicise against the libera-lisation of the electoral system in his treatise Über die englische Reformbill (see Hegel 1995 [1831]).

391. In the terms of Ernst Rudolf Huber, the constitutions complemented ‘adminis-trative integration’ with ‘ parliamentary- representative integration’ (Huber 1967 [1957], p. 317).

392. See Kirsch (1999a, p. 167f.).393. It would be misleading to deny that foreign political considerations played a

role in French constitutional life during the Restoration. In 1830, for example, it was not least Charles’ hope that the beginning of the French intervention in Algeria would strengthen the acceptance of his regime and provide public support for the July Ordinances. Yet when compared to the German states, the foreign political dimension was of minor importance only.

394. In this respect the German Confederation had a similar role as today’s European Union, namely that of an authority which is held responsible for unpopular measures.

395. The conflict between Charles X and the Chamber of Peers in the second half of the 1820s and Ludwig I and the Kammer der Reichsräthe in 1827 are exceptions that prove the rule. Usually, the first chambers served as devoted supporters of governmental policies. Thus, they basically failed to live up to the politico- theoretical model of an independent, aristocratic chamber capable of holding the balance between the king and the popular second chamber. On the role of first chambers in post- Napoleonic constitutional systems in general, see Vincent (1911). For France in particular, see de Dijn (2005).

396. For Southern Germany see, for example, Speitkamp (1996, especially pp. 37–42).397. See Rader (1973). On agenda- setting research in general, see McCombs and

Shaw (1993).398. An overview of cultural politics during the Restoration is offered by Kroen

(1992).

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399. [AMAE MD France] 646, fol. 42r.400. Polignac (1845, p. 291).401. It is noteworthy that the July Revolution in 1830 had quite another effect on

Ludwig and Leopold: while the Bavarian King felt vindicated in his growing reservations against liberalisation by the events in France, the same events dyna-mised the liberal turn under the new Grand Duke Leopold of Baden, followed by a cabinet reshuffle, free elections and the productive Landtag of 1831.

402. The concept of ‘good governance’ was developed in the 1980s and is therefore a rather new approach, though, but is also applicable in historical contexts.

403. See Weber (1980 [1922], pp. 828, 832, 848, 859f.).404. Cf. the following Chapter 6.405. Zweiter Bundesbeschluß über Maßregeln zur Aufrechterhaltung der gesetzlichen

Ordnung und Ruhe in Deutschland (5 July 1832), in Huber (1978 [1961], p. 134f.).

406. Bundesbeschluß über Maßregeln zur Aufrechterhaltung der gesetzlichen Ordnung und Ruhe in Deutschland (28 May 1832), in ibid., p. 132f.

407. Schlußprotokoll der Wiener Ministerkonferenzen (12 June 1834), in ibid., p. 137–49. Only the articles 3–14 (arbitral jurisdiction in the Federation), 42–56 (surveil-lance of the universities) and the article 57 (prohibition to dispatch official documents in case of criminal procedures) were made public. The rest of the protocol remained secret, but was brought into the open in 1843, then causing quite a sensation and anger.

6 Constitutional Monarchism: Reflections in Political Thought

1. As a matter of fact, there were frequent complaints in the German press that the coverage of Germany and its political situation was either unsatisfactory or mis-leading in foreign countries, particularly in France and Britain. See, for example, Englische Zeitungsberichte über Deutschland, in [Neuer Rheinischer Mercur] 1816ff., No. 132, 8 October 1818, column 859.

2. On general problems to achieve the goal of objectivity, see Gadamer (1990 [1960]).

3. See Chateaubriand (1814). Cf. also Section 2.4. 4. In Chateaubriand (1830–1, Vol. 18, pp. 193–242). 5. See Chateaubriand (1816). 6. ‘Avec l’ancien régime, il y a impossibilité […] Avec le despotisme, il faut avoir,

comme Buonaparte, six cent mille soldats dévoués, un bras de fer, un esprit tourné vers la tyrannie’ (ibid., p. 5).

7. Ibid., p. 6. 8. Ibid., p. 12. 9. Ibid.10. Ibid., p. 6.11. See ibid., p. 9. In Chateaubriand’s eyes, that was not least of good for the crown:

‘l’initiative laissée aux chambres est manifestement dans les intérêts du roi: la couronnne ne se charge alors que de la proposition des lois populaires, et laisse aux pairs et aux députés tout ce qu’il peut y avoir de rigoureux dans la législation’ (ibid., p. 10f.).

12. Ibid., p. 22. However, no parliamentary right to determine the cabinet was derived from this principle.

13. Ibid., p. 87f.

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14. There are several biographical works on Constant. Recommendable are, among others, Holdheim (1961) and Wood (1993). One year before his death, in 1829, Constant summarised his life’s work as follows: ‘J’ai défendu quarante ans le même principe, liberté en tout, en religion, en philosophie, en littérature, en industrie, en politique: et par la liberté j’entends le triomphe de l’indivdualité, tant sur l’autorité qui voudrait gouverner par le despotisme, que sur les masses qui réclament le droit d’asservir la minorité à la majorité’ Constant (1997, p. 623). On Constant’s political and in particular constitutional theory: Weber (2004).

15. Constant published his first important constitutional writing, Réflexions sur les constitutions, la distribution des pouvoirs, et les guaranties, dans une monarchie consti-tutionnelle, on 24 May 1814, just ten days before the proclamation of the Charte constitutionnelle (Constant 1814). For a good part, the Réflexions had the character of a liberal comment of the Charte. This work is also the introductory text of Constant’s four- volume Collection complète des ouvrages. Publiés sur le gouvernement représentatif et la Constitution actuelle de la France, formant une espèce de Cours de politique constitutionnelle, which provides a detailed account of his constitutional thought (Constant 1818–20).

16. Réflexions, in Constant (1818–20, Vol. 1(1), pp. iii–170, citation p. vf.).17. Session des Chambres, de 1818 à 1819, in ibid., Vol. 4(8), pp. 5–222, citation

p. 18f.18. Constant’s appreciation of the Charte was clearly demonstrated in 1830. As one

of the leading figures in the July Revolution, Constant did not argue for a new constitution, but only for specific revisions of those parts of the Charte which had proved weak and been arbitrarily interpreted by Charles X.

19. On the model role of England for nineteenth-century French political thought, see Jennings (1986).

20. Des réactions politiques, in Constant (1818–20, Vol. 3(6), pp. 61–114, citation p. 77).

21. Réflexions, in ibid., Vol. 1(1), pp. iii–170, citation p. 52.22. See Gall (1963, p. 167).23. Réflexions, in Constant (1818–20, Vol. 1(1), pp. iii–170, citation p. 13).24. Ibid., p. 15.25. Constant (1815, p. 37).26. ‘Le pouvoir royale est […] le pouvoir judiciaire des autres pouvoirs.’ Réflexions, in

Constant (1818–20, Vol. 1 (1), pp. iii–170, citation p. 20).27. See Meisner (1995 [1913], p. 108f). According to Constant, sovereignty should

never be unlimited (see Constant 1815, p. 23).28. Ibid., p. 34.29. Not least, ministerial responsibility was left open by Constant (see Hartman

1976).30. Réflexions, in Constant (1818–20, Vol. 1(1), pp. iii–170, citation p. 15).31. Lanjuinais (1819, Vol. 1, p. 198).32. Radical royalists remained fierce opponents of Constant, condemning his theory

as ‘hollow’ and full of ‘subtleties’, basically destroying the nature of monarchy (see Gall 1963, p. 174).

33. See Manique (1996).34. See Gall (1963), Evers (1987).35. See Hegel (2000 [1820] § 279, pp. 444–9).36. Accordingly vast is not only the amount of German politico- theoretical writing

on the monarchical principle in the nineteenth and early twentieth century, but

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also of secondary literature on this topic. See, among others, Jablonowski (1851), Noellner (1856), Rabus (1862), Kaufmann (1906), Hintze (1911), Meisner (1995 [1913]). Even later the monarchical principle remained an important object of research. See, for example, Brunner (1968 [1956]), Boldt (1975), Füßl (1988), Schlegelmilch (2009).

37. See Eich (1986, p. 386).38. During the Vormärz, the Constitution of Baden with its distinct representative

system continued to be accused of being ‘(pseudo-)republican’ in domestic political debates, too. See, for example, a speech of Freiherr von Andlaw in the Badenese first chamber in 1844, when he declared that ‘diese von fast allen beste-henden Verfassungen ab[weiche], wenn man nicht einige republikanische oder aus Revolutionen hervorgegangene quasi- republikanische ausnehme’ (cited in Beck 1866, p. 52).

39. Dobmann (1962, p. 170).40. Gentz (1844 [1819]). Also in Brandt (1979, pp. 218–23).41. Ibid., p. 221. Gentz’s struggle to find a consistent argument for the distinction

between landständische and representative constitution are evident in the remark that ‘in einer landständischen Verfassung gibt es allerdings Repräsentation, und man würde sie eine Reprä sentativ- Verfassung nennen können, wenn diesem Wort nicht in der neuersten Zeit eine ganz eigene, auf landständische Verfassungen nicht mehr anwendbare Bedeutung beigelegt worden wäre. Nur in dieser jetzt herrschend gewordenen Bedeutung tritt der Unterschied oder vielleicht der Gegensatz zwischen landständischen und Reprä sentativ- Verfassungen ein’ (ibid.).

42. Ibid., p. 222.43. Ibid.44. Ibid.45. Ibid.46. Ibid, p. 225.47. Ibid., p. 226.48. Ibid., p. 227.49. Ibid., p. 228.50. 1 September 1819, in Metternich (1880–4, Vol. 1, p. 275).51. Schlußakte der Wiener Ministerkonferenzen (15 May 1820), in Huber (1978 [1961],

pp. 91–100).52. See Mössle (1993, 1994).53. Exceptions were conceded for the city states Hamburg, Bremen, Lübeck and

Frankfurt/Main.54. See Gangl (1975, p. 52f).55. Many contemporaries were critical enough to recognise and name the dangers

immanent in the restrictive provisions of 1820 for Germany’s constitutional and political development. The British diplomat Frederick James Lamb, for example, was sceptical about the practical value of the Wiener Schlussakte. For him, the main function of the deliberations in Vienna had been ‘to reassure the timid, and to flatter the vanity of the weak’. The constitutional questions would remain the cardinal problem of political conflict in Germany ‘for a long period of years’, before they could possibly be ‘brought to a final settlement’. In Lamb’s eyes, the uncompromising defence of the existing orders was in any case no sound political strategy, and he therefore expressed his hope ‘that Germany may never learn how weak positive Restrictions are against a force which is in its

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nature encroaching and expansive’. Lamb to Castlereagh, Frankfurt/Main 20 June 1820. Partly printed in Heydemann (1995, p. 50–2). In suggesting constitutional alternatives for Germany, Lamb was clearly captivated by English constitutional practice. Among other things, he declared that: ‘Stipulations requiring a uniform construction of the Chambers founded upon the basis of property would have afforded a much better security’ and that ‘Germany possesses the elements of a Peerage, and of a good representative Body, but She has not begun by employing them’ (ibid., p. 51).

56. Meisner (1995 [1913], p. 282).57. See Aretin and Rotteck (1824–8). After Aretin’s death in 1824, the second volume

(in two parts) was finished by Karl von Rotteck in 1827 and 1828 respectively.58. Ibid., Vol. 1, p. 88f.59. Ibid., p. 174. Essentially, Aretin’s work is based on social-contract considerations

(see, for example, ibid., p. 155).60. See ibid., p. 93.61. Ibid., p. 90.62. Aretin was convinced that the Constitutions of Bavaria, Württemberg and

Baden ‘durch ihre Bestimmungen und klarere Ansichten verschiedener wichtiger Verfassungsgegenstände die Wissenschaft selbst beförderten’ (ibid., p. 82).

63. According to Hans Boldt (see Boldt 1975, pp. 282–93), six different models of monar-chical rule can be distinguished in Vormärz Germany: 1) the patrimonial model; 2) the law preservation model; 3) the cohabitation model; 4) the appeal model; 5) the pouvoir neutre model; 6) the parliamentary model. The patrimonial model basically represented the concept of the reactionary forces and hardly provided for minimum constitutional requirements. Model two was the model of German conservative constitutionalism, with an emphasis on strong monarchical preroga-tives as argued by Stahl. The cohabitation model, again, reflected the positions of German liberal constitutionalism with authors like Pölitz, Jordan, Dahlmann and Welcker, providing for an effective political participation of parliament. The appeal model, in which ‘eine besondere Zuständigkeitsvermutung für den Monarchen aus dem monarchischen Prinzip nicht folgt’ (Boldt 1975, p. 286), corresponded with liberal- reformist thinkers like Rotteck, Pfizer and Murhard. Compared to these four models, the pouvoir neutre model, following closely Chateaubriand’s and especially Constant’s constitutional concepts, and the parliamentary model, in which the monarch appears as hardly more than formal head of state, were only of marginal importance in the constitutional- theoretical discourse. Nevertheless, there were at least some references to these models, as from Benzenberg and Mohl.

64. See Haller (1816–25). Symptomatic for his constitutional thought is a letter written in February 1833 to Karl Friedrich Nebenius, with whom he had already corresponded on political matters before (see his letter of 29 January 1833 in [GLAK N NL Nebenius] Conv. 34). Haller considered it as the ‘Hauptfehler’ of the Badenese Verfassungs- Urkunde to be a constitution at all, ‘mithin der Idee nach, die Natur des Fürstenthums zu verändern und in eine quasi Republic umzuwan-deln’. Haller to Nebenius, Solothurn 28 February 1833. Printed in Weech (1868, pp. 198–200, citation p. 198).

65. Oeschey (1944, p. 388).66. See Stahl (1845).67. See Schlegelmilch (2009, p. 67). On Stahl’s (1802–61) role both as a legal theorist

and Prussian politician, see Füßl (1988). See also Orr (1976). Particularly on his political thought: Pyclik (1972).

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68. Stahl (1845, preface p. IIIf.).69. Ibid., p. 2.70. Ibid., p. 1.71. Stahl (1854–6 [1830–7], Vol. 2(2), p. 241).72. Stahl (1845, p. 12).73. Ibid., p. 14.74. Ibid., p. 18.75. Ibid., p. 21, and also p. 30.76. Ibid., p. 32.77. Ibid., p. 34.78. Ibid., p. 39.79. Ibid., p. 41.80. See ibid., p. 36.81. See ibid., p. 36.82. See Stahl (1849 [1848]). Compared to the first edition, the second was consider-

ably longer.83. Ibid., pp. 78–80.84. Ibid., pp. 83f.85. Ibid., pp. 85.86. Ibid. p. 93f.87. Ibid. p. 97.88. Ibid. p. 97f.89. Stahl criticised that the French Restoration had strung ‘die widersprechend-

sten Einrichungen: Ausschließung ständischer Initiative und unbedingte Steuerverweigerung, enormen Census und bloß numerisches Repräsentationssystem, Rücksichtslosigkeit bei Wahl der Minister und unbeschränkte Preßfreiheit, poli-tische Emancipation ohne Freiheit der Culte’ (Stahl 1845, p. 26). The constitu-tionalised states in Germany were so far neither ‘ein Beweis für die Möglichkeit solcher Vereinigung, da hier die monarchische Gewalt in den nichtconstitutionel-len Großmächten Deutschlands eine Stütze hat’ (ibid.).

90. Ibid., p. 44.91. See Mohl (1846). The article was published in the Zeitschrift für die gesamte Staats-

Wissenschaft, edited by Mohl and becoming one of the most important German political and legal journals in the second half of the nineteenth century. On Mohl’s life and work, see Angermann (1962). An overview of his political and constitutional thought in Boldt (1975, pp. 233–61). For Mohl, the specificity of the constitutional systems in Germany was a given fact, since ‘in jedem der deut-schen constitutionellen Staaten die französische oder englische Grundlage mehr oder weniger mit einheimischen Einrichtungen vermischt, dadurch aber man-ches eigenthümliche Verhältnisse erzeugt [worden ist].’ Review of Henry Lord Brougham’s English Constitution in [Kritische Zeitschrift] 1829–56, Vol. 18, 1846, pp. 195–215, citation p. 197. Altogether, Mohl considered ‘die neuen deutschen Verfassungen weit mehr aus der französischen, als aus der englischen oder gar nordamerikanischen Modification des Grundgedankens hervorgegangen’ (ibid., p. 196).

92. Mohl (1846, p. 479).93. See Mohl (1966 [1852]). Mohl’s constitutional theory differed considerably from

other contemporary ‘liberals’ such as Carl von Rotteck and Gustav von Struve (e.g., Struve 1847–8).

94. Mohl (1966 [1852], p. 150).

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95. Ibid., p. 151. 96. See ibid., p. 151f. 97. Ibid., p. 152f. 98. Ibid., p. 153f. 99. To demonstrate the inability of a ‘corruption system’ to guarantee political

stability in the longer- term perspective, Mohl particularly referred to the French July Monarchy under Louis- Philippe.

100. Mohl (1966 [1852], p. 157).101. Ibid., p. 157f.102. Ibid., p. 183.103. See Boldt (1975, p. 259). The ‘immer gewaltigere Vordrängen demokratischer

Ansichten unter den Völkern von europäischer Kultur’ (Amerikanisches Staatsrecht, in [Kritische Zeitschrift] 1829–56, Vol. 8, 1836, pp. 359–87, citation p. 359) was a given fact for Mohl.

104. Not only in political theory, but also in politics Mohl’s contemporary importance remained limited: neither in the Frankfurt Parliament of 1848/1849, nor later in the Badenese first chamber, whose member he became in 1863, was Mohl able to give lasting impetus to liberal constitutional practice in Germany.

105. One exception is Rudolf von Gneist, who in his work Das heutige englische Verfassungs- und Verwaltungsrecht (Gneist 1857–63) supported Mohl’s parliamen-tarisation paradigm and tried to offer a concrete implementation strategy for Germany. See also Pöggeler (1995, pp. 80–8).

106. See Boldt (1975, p. 297).107. Arthur Schlegelmilch’s study Die Alternative des Monarchischen Konstitutionalismus

(Schlegelmilch 2009) refers to the differences of German, and Austrian, ‘monar-chical constitutionalism’ in the second half of the nineteenth century compared to the first. What is considered as symptomatic examples for this ‘revised’ form of monarchical- constitutional rule are the Constitution of the North German Confederation (1866) and the Constitution of the German Empire (1871), both of which were essentially drafted by Bismarck.

108. Hintze (1911, p. 387).109. After the failure of both the Bourbon Restoration Regime in 1830 and the July

Monarchy in 1848, going hand in hand with the replacement of the Charte by a republican constitution, the politico- theoretical discourse on constitutional monarchy grinded to a halt in France. In the second half of the nineteenth cen-tury it was rather ‘Bonapartism’ than ‘constitutional monarchism’ that attracted intellectual attention.

110. By 1812 George Dyer observed that ‘No country in the world […] possesses so many constitutional writings as England’ (Dyer 1812, p. 3). ‘Writing about the constitution was’, indeed, ‘a national disease, and over the course of the nineteenth century it reached pandemic proportions’ (Saunders 2008, p. 72). There were, for example, books on the subject by William Gladstone, Benjamin Disraeli and Lord John Russell, and parliamentary manuals by Walter Bagehot and Erskine May. On the limited scope of political rhetoric in British constitu-tional and parliamentary life in the late eighteenth and nineteenth century, see Steinmetz (1993, 2002).

111. Review of Polignac’s work Histoire de la Restauration in [Quarterly Review] 1809–67, Vol. 48, No. 95, October 1832, pp. 234–85, citation p. 242.

112. Cf. all the domestic debates on the Reform Act of 1832, finally culminating in wide- ranging changes to the electoral system of the United Kingdom.

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113. Review of Chateaubriand’s The Monarchy according to the Charter in [Quarterly Review] 1809–67, Vol. 15, No. 30, July 1816, pp. 419–40, citation p. 421. ‘We declare we have not found one single principle, we had almost said one single expression, in this able production which might not have been advanced by an English whig of the best days of our constitution’ (ibid.).

114. Ibid., p. 423. The wish Croker had for the political future of France was unmistakably clear: ‘we care nothing who the ministers may be, or which party be in power, provided only it be a royalist and constitutional party’ (ibid., p. 440).

115. State and Prospects of Europe, in [Edinburgh Review] 1802–1929, Vol. 23, No. 45, April 1814, pp. 1–40, citation p. 15. ‘the restoration of the Bourbons […] was an act, not merely of wisdom, but of necessity’ (ibid., p. 14).

116. See ibid., p. 18, 35.117. At least up until the 1820s, however, there was optimism that the constitutional

system was not closed to reform: ‘The foundations of a representative govern-ment are now laid, we think, indestructibly in the French constitution; […] if every thing is not again cast down by the shock of another popular revolution, the monarchy will be substantially limited, and a certain considerable and growing portion of power vested in the people.’ France, in ibid., Vol. 25, No. 50, October 1815, pp. 501–26, citation p. 524.

118. Spain, in ibid., Vol. 38, No. 75, February 1823, pp. 241–64, citation p. 257. An explicit review of Chateaubriand’s The Monarchy according to the Charter is miss-ing in the Edinburgh Review.

119. See Butterfield (1931).120. The State of Europe, in [Edinburgh Review] 1802–1929, Vol. 88, No. 178, October

1848, pp. 514–58, citation p. 532. The European dimension of the events in France was well noticed: ‘the effect of this metamorphosis was most sensibly felt in the several revolutions which followed, then as now [1848], in the train of Parisian catastrophes’ (ibid.).

121. The conviction of Britain as the world leader, both in power and reasoning, and the special role France played in British self- perception, is well expressed by Richard Chenevix in 1821: ‘Perhaps since the diffusion of Christianity, but surely during the last and wisest centuries, Britain has stood foremost in the infinite course of reason. It is she who has carried the undiscovered centre forwards, and made the inscrutable circumference expand. She is the foremost beacon of the civilized world; and the best security that her lights, and with them those of all mankind, shall not be extinguished is, that other nations shall follow and contemplate. The nearest in place we should hope to see the nearest in emulation; and that wisdom, virtue, and liberty should con-firm to us the associates and competitors which vicinity had given; in order that what is termed Art in the construction of society, may not be opposed to nature. It is by these principles that we would be judged; […] The nation we wish to know the most improved, is France. France is the country which, next to our own, we have the most immediate interest to see happy, tranquil, moral, wise, and free; in peace with ourselves, in harmony with the world;’ France and England, in [Quarterly Review] 1809–67, Vol. 25, No. 50, July 1821, pp. 534–75, citation p. 575.

122. Reinhard (2002 [1999], p. 429).123. Even during the First World War the identification of the Staatsrechtslehre with

the concept of ‘German constitutionalism’ remained predominant. Shortly

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before the end of the War, Georg Anschütz, for example, continued to plead for a preservation of the German Constitution by reforms in order to avert parliamentarisation (see Anschütz 1918, especially pp. 24–38).

124. Not only was there general rejection of the concept of monarchical sover-eignty, but also widespread conviction that the nation had a natural right to intervene in the succession: ‘hereditary monarchy, without a power and a right in the people to change the line of succession, is the old slav-ish absurdity of the jus divinum of kings; and cannot decently be asserted in any country that has the smallest pretension to liberty.’ France, in [Edinburgh Review] 1802–1929, Vol. 25, No. 50, October 1815, pp. 501–26, citation p. 521.

7 Results

1. State and Prospects of Europe (in ibid., Vol. 23, No. 45, April 1814, pp. 1–40, citation p. 14f.).

2. Schmale (1991, p. 476). 3. Ueber den historischen Standpunkt bei dem Verfassungs- Werke, in [Journal für

Deutschland] 1815–19, Vol. 8, 1817, pp. 231–55, citation p. 252. 4. In 1818, for example, Johann Christoph von Aretin felt obliged to rouse his

fellow countrymen to an intensified study of French and English constitutional-ism (see Aretin 1818, p. 54).

5. Görres (1854–74 Vol. 2, p. 13). 6. Self- reference corresponded to clear hierarchies of perception in the press,

as manifest in the order in which news from different regions and states were presented in the contemporary newspapers. The Karlsruher Zeitung can be taken as a typical example, where all reports were printed according to the following template (from most important, presented at the beginning of the individual issues, to least important, printed at the very end): Baden – German Confederation – neighbouring German countries, that is Bavaria and Württemberg – other German states – European states – ‘Others’, for example, United States.

7. Johann Emanuel von Küster der Ältere, Prussian envoy in Munich, to Hardenberg (Politisches Gemälde von Baiern), Stuttgart 1 January 1817, in Chroust (1949–51, pp. 88–111, citation p. 97).

8. Particularly from post- Napoleonic rulers’ point of view, the term ‘constitution’ obviously had, and continued to have, an air of ‘Revolution’ and ‘Napoleonism’ about it. Thus, not only were the French Charte and the Bavarian Verfassungs- Urkunde separate in their terminology, but also, for example, the later monarchi-cal constitution drawn up by Carlo Alberto of Sardinia in March 1848, which was not labelled Costituzione, but Statuto.

9. Crown Prince Ludwig on Zentner. Cited in Gollwitzer (1997 [1986], p. 446).10. Bornhak (1935, preface p. VI).11. See, for example, Pombeni (2005).12. In this context, centres of intellectual exchange such as universities deserve

more attention than in the past. The University of Göttingen, for example, was such an important centre in the late eighteenth and early nineteenth century, at which important members of the Bavarian constitutional commissions

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(Zentner, Reigersberg, Krenner, Lang), but also Crown Prince Ludwig, had studied.

13. While one can easily pinpoint the ‘initial motivation’ of the players involved (for example, for or against the idea of popular sovereignty) from such circumstantial evidence, it is much more difficult to discern particular decisions (for example, whether or not to adopt a certain provision or rule).

14. [Ueber Verfassungsvertrag] 1817, p. 35.15. Its systemic character also distinguishes the confrontation between crown

and parliament from other ‘constitutional struggles’: between liberals and conservatives in society, between different groups in the government and the parliament respectively, or between federal states and Bund, as in the case of Bavaria and Baden.

16. ‘Hilfsorgan des Beamtenstaats’. Fehrenbach (1996b, p. 18).17. Ueber den historischen Standpunkt bei dem Verfassungs- Werke, in [Journal für

Deutschland] 1815–19, Vol. 8, 1817, pp. 231–55, citation p. 254f.18. See Gangl (1975, p. 53). On general criticism of the German ‘Sonderwegsthese’

see, for example, Blackbourn and Eley (1984).19. See, for example, Wienfort (1993, p. 210), emphasising missing ‘gesellschaftliche

Integrationsfunktion’.20. In point of fact, constitutional reality proved that in monarchical- constitutional

systems, too, political, social and economical reforms could be effectively tackled.

21. On legitimisation and indeed ‘survival’ strategies of the ‘European monarchy’ in the nineteenth century, see recently Sellin (2011).

22. A collection of interesting articles on the interplay of ‘constitution’ and ‘conflict’ in a long- term European perspective in Müßig (2006).

23. On the socio- historical interpretation of the ‘Great Revolutions’ within the con-text of modern civilisation, see Eisenstadt (1992, 2006).

24. Prutsch (2007, p. 22). See also Prutsch (2008 [2007], especially pp. 73–86). For the interpretation of the Western ‘modern age’ rather as ‘gnosticism’ than ‘secularism’, see the works of Eric Voegelin (1952a, 1952b, 1959, 1960, 1994, 1999). ‘Die geis-tige Kraft der Seele’ was redirected towards ‘die verlockendere, greifbarere und vor allem weitaus leichtere Schaffung eines irdischen Paradieses’ (Voegelin 2004 [1959], p. 140).

25. On the functional character of the monarchy, particularly in the nineteenth century, see, for example, Böckenförde (1981 [1972], p. 159f.), Hoffmann (1977, p. 91f.), Dollinger (1985, p. 331f.), Kirsch (1999b, p. 389f.; 2007). A recent attempt at studying monarchy in long- term perspective is Jussen (2005).

26. Andrian- Werburg (1843 [1841], p. 178). Ludwig Börne remarked in 1818: ‘Weder Liebe noch Furcht ist ein sicheres Band zwischen Volk und Herrscher, sondern Achtung allein; denn die Völker sind Männer geworden, aber nur das Kind fürchtet, der Jüngling liebt, der Mann achtet’ (cited in Gathy 1831, p. 67).

27. Political State of Prussia, in [Edinburgh Review] 1802–1929, Vol. 83, No. 167, January 1846, pp. 224–39, citation p. 229.

28. On the charismatic character of Bismarck’s system of government and the corresponding problems, see Hoffmann (1977), Wehler (1988).

29. See Weber (1980 [1922], p. 140).30. On Bonapartism as a historical phenomenon, see Hammer and Hartmann (1977),

Wehler (1988). More general on ‘Centers, Kings, and Charisma’: Geertz (1977).

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31. ‘Herrschaftsfremde Umdeutung des Charisma’ (Weber 1980 [1922], p. 155–8, citation p. 155).

32. See also Walter Bagehot’s, in parts cynical, judgement of the British monarch’s limited political role in the second half of the nineteenth century: Bagehot (1867, especially pp. 57–117). For Bagehot, the monarch was only at the head of the ‘dignified part of the constitution’, while the prime minister was at the head of the ‘efficient’ (ibid., p. 13).

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Notes

1. Square brackets refer to newspapers and magazines, anonymous works or parlia-mentary material. These sources, in alphabetic order, appear at the beginning of the alphabetical list. In the event that two dates are mentioned, square brackets signal the year of the first edition or the actual year dealt with in the text (e.g. parliamentary protocols).

2. Years in square brackets refer to the date of the first edition. Otherwise, square brackets signal additional information.

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Index

The index comprises chiefly proper nouns (e.g., persons and places) occurring in the main text of the book. Relevant constitutions are compiled under the central heading ‘constitutions’. Congresses and treaties are listed individually. Common terms within the context of the enquiry, notably ‘France’, ‘Germany’, ‘Bavaria’, ‘Baden’, ‘Charte constitutionnelle’ and similar, have not been included.

Act of Abjuration (1581), 13Alexander I, Emperor of Russia

(1777–1825), 11–12, 19, 35, 60–61, 68, 82, 84, 108, 144

Alps, 11Amberg, 131American Revolution, 1–2, 15, 25, 31,

40, 49–50, 53, 69, 70–71, 102, 119, 170, 200, 206, 211, 217–218

American War of Independence (1775–1783), 40

Ancillon, Johann Peter Friedrich (1767–1837), 133

Ansbach, 123Ansbacher mémoire (1796), 77Arco, Karl von (1769–1859), 86Aretin, Johann Adam von (1769–1822), 88Aretin, Johann Christoph von

(1773–1824), 88, 189Armansperg, Josef Ludwig von

(1787–1853), 137, 139, 140Arndt, Ernst Moritz (1769–1860), 48Augsburg, 75Austria, 10, 65–68, 74–75, 79, 81–82,

84, 89, 115, 125, 128–129, 133–134, 145–146, 151, 154, 172–173, 178, 186, 215–216

Baden- Baden, 142Bader, Karl Siegfried (1905–1998), 142Bamberg, 75, 123Basel, Treaty of (1795), 65, 89Bayreuth, 123Befreiungskriege (1813–1815), 44, 71, 115,

208Behr, Michael Wilhelm Joseph

(1775–1851), 123, 126, 136, 138Belgium, 60, 138, 170, 282Benzenberg, Johann Friedrich

(1777–1846), 48, 51

Berg, 66Berlin, 98, 128–129, 186Bernstorff, Christian Günther von

(1769–1835), 133Berry, Charles- Ferdinand d’Artois de

(1778–1820), 161Berstett, Wilhelm Ludwig Leopold

Reinhard von (1769–1837), 95, 98, 145, 147–148, 150

Besançon, 96Beugnot, Jacques Claude (1761–1835),

22, 24, 30, 184Biester, Johann Erich (1749–1816), 42Bill of Rights (1688), 13Bismarck, Otto von (1815–1898), 219Blackstone, William (1723–1780),

54, 71Blankenburg, Declaration of (1797), 18Blittersdorf, Friedrich Landolin Karl von

(1792–1861), 147, 152Böckh, Friedrich (1777–1855), 96Bogenhausen, Treaty of (1805), 75Bonald, Louis- Gabriel- Ambroise de

(1754–1840), 2, 21, 32, 45, 158, 183, 206

Brauer, Johann Nicolaus Friedrich (1754–1813), 80

Breisgau, 81, 83, 112, 142Britain see Great BritainBrixen, 75Brno, Treaty of (1805), 75Brunswick, 138Bülow, Dietrich Heinrich von

(1757–1807), 41Bundesakte see German Federal Act

(1815)Bundesverfassung see German Federal Act

(1815)Burke, Edmund (1729–1797), 2, 42, 45,

54, 71, 206

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Cádiz, 50Cambrai, Declaration of (1815), 156Campo Formio, Treaty of (1797), 65Charles X, King of France and of

Navarre (1757–1836), 18–19, 21, 158, 161, 164–170, 174–175, 182, 184, 197, 201, 203, 214, 218

Chateaubriand, François-René de (1768–1848), 32, 166, 180–185, 197, 200–201, 203, 216, 220

Châtillon, Congress of (1814), 11Christian Frederik, King of Norway, King

of Denmark (1786–1848), 52Code civil, 29, 44, 70, 78, 80, 164Code Napoléon see Code civilCompte rendu au Roi (Montgelas, 1817),

79Comte d’Artois see Charles X, King of

France and of Navarre (1757–1836)Comte de Provence see Louis XVIII, King

of France and of Navarre (1755–1824)

Concordat of 1817 (Bavaria), 123Confederation of the Rhine (1806–1813),

3, 46, 62, 65, 75, 78, 84, 90, 210, 211Constance, 143Constant, Benjamin (1767–1830), 47,

55, 162, 168, 180, 182–185, 203, 216, 220

Constitutions:Bavaria (1808), 76–78, 80, 83–85, 90,

99, 102–104, 106–107, 113, 117, 130, 211

Belgium (1831), 170Britain/England, 1, 4, 15–16, 37–38,

40–41, 49, 51, 53–56, 58–59, 61–62, 69, 70–72, 86, 88, 93, 95, 99, 105–107, 112–113, 117–119, 122, 140, 154, 170, 181–182, 191, 194, 199–200, 203, 205–206, 209

France (1791), 2, 4, 15–16, 30, 42, 48–51, 69–70, 111, 192, 209

France (1793), 16, 48, 70, 209France (1795), 15–16, 70, 209France (1799), 70, 209France (1802), 209France (1804), 13, 70, 209France (1814, Senatorial

Constitution), 15–23, 26, 29–30, 35, 57, 200, 206–207

France (1815; Acte additionnel aux Constitutions de l’Empire), 156

Hesse- Darmstadt (1820), 5Nassau (1814), 64, 86Norway (1814), 50, 52–53, 70–71, 99,

119, 208, 211Poland (1791), 41–42, 50, 69Poland (1815), 4, 56, 59–61, 69, 70,

72, 99, 108–109, 113, 208, 211–212Portugal (1826), 184–185Spain (1812), 4, 50–52, 70–71, 208Sweden (1809), 53, 72, 87, 119, 208United Netherlands (1815), 59–61, 70,

72, 208United States of America (1787), 4,

40–41, 49–50, 52, 56, 70–71, 208Westphalia (1807), 76, 80, 83Württemberg (1819), 5, 64, 99, 104,

110, 113, 211Corbière, Jacques- Joseph de

(1766–1853), 158Cottu, Charles (1778–1849), 167Croker, John Wilson (1780–1857), 200

Dahlmann, Friedrich Christoph (1785–1860), 45, 47, 51, 53–55

Dalberg, Emmerich Joseph von (1773–1833), 80–81

Dambray, Charles- Henri (1760–1829), 22–24, 30

Decazes, Élie (1780–1860), 159, 161, 163Déclaration des droits de l’homme et du

citoyen see Declaration of the Rights of Man and of the Citizen (1789)

Declaration of Independence (1776), 13Declaration of the Rights of Man and of

the Citizen (1789), 22, 26Delolme, Jean Louis (1740–1806), 54, 71Denmark, 52, 218Deutscher Bund see German

ConfederationDurlach, 142Duttlinger, Johann Georg (1788–1841),

149

Eidsvoll, 52Elba, 33, 94Elizabeth Alexeievna, Empress of Russia

(1779–1826), 82England see Great Britain

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Erhard, Johann Benjamin (1766–1826), 43Erlangen, 122

Federalist Papers (1787–1788), 41Ferdinand VII, King of Spain

(1784–1833), 50–51Ferrand, Antoine-Franç ois- Claude

(1751–1825), 22–24Feuerbach, Paul Johann Anselm von

(1775–1833), 123Fifth Coalition (1809), 81Finnish War (1808–1809), 53First World War (1914–1918), 202, 217,

221Fischer, Karl Friedrich von (1756–1821),

145Föhrenbach, Matthias (1766–1841), 149Franconia, 85, 131Frankfurt am Main, 66, 88, 97, 138Frankfurter Wachensturm (1833), 152Frankfurt, Treaty of (1813), 81Frankish Kingdom, 26Freiburg im Breisgau, 112, 142–143,

151–152Freising, 75, 131French Revolution, 1–4, 8, 12–13, 15–16,

18, 20, 22, 24–26, 29–36, 42–43, 45–46, 47–50, 53, 57, 65, 69–71, 95, 102, 119, 153–154, 161–162, 164, 170, 178, 180, 184, 193, 199–200, 206–207, 209, 211, 217–218

Friedrich Wilhelm III, King of Prussia (1770–1840), 128

Fürstenberg, 143

Gaibach, 131, 132Gaibacher Fest (1832), 132Galicia, 89 Gemmingen- Guttenberg, Carl Friedrich

Reinhard von (1739–1822), 81Gentz, Friedrich von (1764–1832), 42,

186–188Gérard, François (1770–1837), 163German Confederation, 3, 9, 68, 88,

95, 97, 101, 114–115, 125, 128, 133–135, 144–147, 151–152, 173, 176–177, 186, 188–189, 213, 215

German Federal Act (1815), 3, 62–63, 68, 73, 88, 94, 97–98, 110, 114–115, 128, 134, 186, 188–189

Glorious Revolution (1688–1689), 1, 169, 203, 205

Görres, Joseph (1776–1848), 45–46, 48–49

Göttingen, 89Great Britain, 9, 18, 37, 39, 53–56, 58,

66, 81, 88, 99, 110–112, 122–123, 140, 144, 154, 158, 169–170, 179, 189, 191–192, 193–194, 198–201, 203, 209, 217

Grégoire, Henri (1750–1831), 153Griesbach, 101Grimm, Albert Ludwig (1786–1872),

149Grotius, Hugo (1583–1645), 37Guizot, François Pierre Guillaume

(1787–1874), 165, 169Gustav IV Adolf, King of Sweden

(1778–1837), 53

Hacke, Karl von (1775–1834), 67Haller, Karl Ludwig von (1768–1854),

190Hambach, 132Hambacher Fest (1832), 132, 151Hanover, 216Hardenberg, Karl August von

(1750–1822), 45, 66–67, 82, 129Harl, Johann P. (1772–1842), 122Hartwell, Proclamation of (1814), 22Hazzi, Joseph von (1768–1845), 76, 124Hegel, Georg Wilhelm Friedrich

(1770–1831), 185Heidelberg, 89, 94, 103, 112, 147Henri IV, King of France and of Navarre

(1553–1610), 30, 163Hesse, 129, 138, 216 Hesse- Darmstadt, 3, 5, 98Hintze, Otto (1861–1940), 198Hogendorp, Gijsbert Karel van

(1762–1834), 59Holy Alliance, 185Holy Roman Empire, 43, 64–67, 90, 185,

211Hornthal, Franz Ludwig von

(1760–1833), 123, 126–127, 136Humboldt, Wilhelm von (1767–1835),

42Hundred Days (1815), 33, 48, 59,

155–156, 158, 174, 213

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Ingolstadt, 89Italy, 50, 93, 122, 138, 170, 193, 218Itzstein, Johann Adam von (1775–1855),

146

Joseph- Napoleon Bonaparte, King of Naples, King of the Spains and the Indias (1768–1844), 50

July Ordinances (1830), 168–169, 218July Revolution (1830), 138, 150,

168–171, 175–176, 182, 189, 199, 201, 216

Kalisch, Proclamation of (1813), 44, 66Karl Friedrich, Grand Duke of Baden

(1728–1811), 80–81Karl, Grand Duke of Baden (1786–1818),

81–82, 93–98, 100–102, 108, 116, 141, 143

Karlsbad Decrees (1819), 133–135, 137, 145–146, 151

Karlsbad, Ministerial Conference (1819), 134, 145, 186, 188

Karlsruhe, 98, 141, 143, 145, 149Kiel, Peace of (1814), 52Konstitutionssäule (Gaibach), 131Kozlovskij, Petr Borisovic (1783–1840),

145

La Bourdonnaye, François Régis de (1767–1839), 158

La Fayette, Gilbert du Motier de (1757–1834), 162, 168

La Garde- Pasquier, August de, 87, 145Laffitte, Jacques (1767–1844), 168Lanjuinais, Jean Denis (1753–1827), 184Laibach, Congress of (1821), 201Legion of Honour (France), 16, 21, 29Leopold I, Grand Duke of Baden

(1790–1852), 150–151, 175Lerchenfeld, Maximilian Emanuel von

(1778–1843), 85–86, 90, 93, 134, 137–138

Liebenstein, Ludwig August Friedrich von (1781–1824), 144, 146

Locke, John (1632–1704), 182Louis IX, King of France (1214–1270),

30Louis XIV, King of France and of

Navarre (1638–1715), 30

Louis XVI, King of France and of Navarre (1754–1793), 18, 24, 31, 164

Louis XVII of France (1785–1795), 18, 24Louis XVIII, King of France and of

Navarre (1755–1824), 3, 4, 11, 15–16, 18–25, 30–33, 35, 37–38, 57–59, 61, 102, 104, 116, 119, 154–166, 169–171, 173–176, 179, 181–182, 203, 206, 214, 219

Louis- Philippe I, King of the French (1773–1850), 168–170

Louis- Stanislas- Xavier see Louis XVIII, King of France and of Navarre (1755–1824)

Luden, Heinrich (1778–1847), 45, 122Ludwig I, Grand Duke of Baden

(1763–1830), 143, 146–150, 214Ludwig I, King of Bavaria (1786–1868),

79, 86–90, 93, 102, 117, 121, 129, 131, 134, 136–141, 175, 214

Lunéville, Treaty of (1801), 65, 75

Main, 94Mainz, 186Maistre, Joseph Marie de (1753–1821), 2,

21, 31–32, 45, 153, 180, 183, 206Malachowski, Stanislaw (1735–1809), 41Mannheim, 141, 143, 151Marmont, Auguste Frédéric Louis Viesse

de (1774–1852), 14Marschall von Bieberstein, Karl Wilhelm

(1773–1817), 82, 94, 97, 111Martignac, Jean- Baptiste Sylvère Gay de

(1778–1832), 165Maximilian I Joseph, King of Bavaria

(1756–1825), 75–76, 79, 83, 86–87, 89–90, 102, 116, 121, 126–131, 134, 136, 160

Metternich, Klemens Wenzel Lothar von (1773–1859), 42, 45, 66–67, 82, 89, 115, 125, 128–129, 133–134, 145, 147, 151, 154, 176–177, 186, 188

Milan, 76Mirabeau, Honoré Gabriel Victor de

Riqueti de (1749–1791), 3Mohl, Robert von (1799–1875), 49–50,

190, 194–198, 202, 214, 220Montesquieu, Charles- Louis de Secondat

de (1689–1755), 1–2, 4, 16, 37–38,

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40–41, 54, 69, 71, 107, 110–112, 120, 189, 205

Montesquiou-Fézensac, Franç ois- Xavier- Marc- Antoine de (1757–1832), 22

Montgelas, Maximilian von (1759–1838), 75–79, 83, 85–90, 102, 116

Mortemart, Casimir- Louis- Victurnien de Rochechouart de (1787–1875), 168

Moss, Convention of (1814), 52Müller, Adam Heinrich (1779–1829),

45–46Munich, 76, 87, 89, 107, 125, 128–129,

133–134, 138, 145, 160Murhard, Friedrich Wilhelm August

(1778–1853), 55

Napoleon Bonaparte, Emperor of the French (1769–1821), 4, 10–20, 22, 28, 30–33, 35, 44–45, 51, 57, 59, 64–66, 70, 74–76, 78–82, 84, 94, 153, 155–157, 163, 174, 208, 210, 219

Napoleon III, Emperor of the French (1808–1873), 219

Napoleonic Wars (1799–1815), 35, 48, 65, 71, 81, 101, 179, 209

Nassau, 64, 86Navarre, 20, 25, 169Nebenius, Karl Friedrich (1784–1857),

96–100, 102–103, 108–114, 116–119, 142–143, 150, 152, 210–211

Nellenburg, 143Netherlands, 13, 56, 59–60, 170, 218Neustadt an der Weinstraße, 132Ney, Michel (1769–1815), 157Norway, 52, 218

Oken, Lorenz (1779–1851), 45Otto, Louis- Guillaume (1754–1817), 76

Palatinate, 81, 89, 96, 132, 142Palen, Fedor Petrovic (1780–1863), 145Paris, 11, 14, 18–20, 24, 80, 96, 107,

155, 160, 163, 168–169, 213Paris, Treaty of (1810), 75Paris, Treaty of (1814), 24, 79, 155Paris, Treaty of (1815), 156, 213Passau, 131Peninsular War (1807/1808–1814), 50

Philip II, King of Castile and Aragon (1527–1598), 13

Pictet de Rochemont, Charles (1755–1824), 160

Plakkaat van Verlatinghe see Act of Abjuration (1581)

Poland, 56, 59, 61, 68, 70, 72, 108, 138, 170, 208

Polignac, Jules Auguste Armand Marie de (1780–1847), 165

Polish- Russian War (1792), 42 Polish- Saxon Crisis (1814), 66Pölitz, Karl Heinrich Ludwig

(1772–1838), 49, 60Ponteil, Félix (1892–1985), 169Pressburg, Peace of (1805), 75Prussia, 10, 44, 47, 65–68, 74, 79, 82,

84, 89, 115, 125, 128–129, 133, 145–147, 151, 154, 172–173, 178, 186, 190, 215–216, 218

Pufendorf, Samuel von (1632–1694), 37Pyrenees, 11

Rastatt, 96Rastatt, Congress of (1797), 89Rechberg und Rothenlöwen zu

Hohenrechberg, Aloys von (1766–1849), 128, 134, 137, 160

Rechberg und Rothenlöwen zu Hohenrechberg, Willibald von (1780–1849), 160–161

Reform Act (1832), 170Regeringsform see Constitutions: Sweden

(1809)Rehberg, August Wilhelm (1757–1836), 55Reich see Holy Roman EmpireReichsdeputationshauptschluss (1803), 65, 75Reichsverfassung (Germany), 62, 67, 91,

117Reigersberg, Heinrich Alois von

(1770–1865), 79, 86–87, 89, 134Reims, 164Reitzenstein, Sigismund Karl Johann von

(1766–1847), 80–81, 97–99, 116, 151Revolution of 1848, 141, 152, 170, 177,

192, 197–199, 201–202, 216Revolutionary Wars, 65Rheinbund see Confederation of the Rhine

(1806–1813)Rheinkreis (Bavaria), 124, 127

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Rhine, 10–11, 71Rhineland, 47, 96Rhodt, 96Richelieu, Armand- Emmanuel- Sophie-

Septimanie de Vignerot du Plessis de (1766–1822), 158–159, 161–162

Rotteck, Karl von (1775–1840), 47–48, 56, 59, 69, 142, 148, 152

Rousseau, Jean- Jacques (1712–1778), 2, 110

Rudhart, Ignaz von (1790–1838), 48, 55Russia, 10, 52, 60–61, 68, 81, 89,

144–145, 154, 185Russian Campaign (1812), 10, 81

Sachsen- Weimar- Eisenach, 97Saint Louis see Louis IX, King of France

(1214–1270) Saint- Ouen, 20 Saint- Ouen, Declaration of (1814),

18, 20–23, 25, 29, 57Saxony, 128, 138, 216Scandinavia, 53, 122Schenk, Eduard von (1788–1841), 139Schlegel, Friedrich (1772–1829), 45–46Schlosser, Friedrich Christian

(1782–1829), 45Schmalz, Theodor Anton Heinrich

(1760–1831), 55Sechs Artikel (1832), 176Sechzig Artikel (1834), 176Seidel, Günther Karl Friedrich

(1764–1800), 41Sensburg, Ernst Philipp von

(1752–1831), 95–98Seventh Coalition (1815), 156Sieyès, Emmanuel Joseph (1748–1836),

2, 35, 56Sixth Coalition (1812–1814), 2, 4,

10–12, 14–15, 22, 24, 35, 59, 81Soden, Julius von (1754–1831), 123–124Spain, 50–52, 155, 193Spaun, Franz von (1753–1826), 127St. Petersburg, 31, 98Stahl, Friedrich Julius (1802–1861),

190–194, 197, 202, 216Stein, Heinrich Friedrich Karl vom und

zum (1757–1831), 47, 54, 82, 84Stürmer, Johann Baptist von

(1777–1856), 139–140

Sturz, Christian (dates of birth and death unknown), 127

Stuttgart, 98, 145Swabia, 85Sweden, 52, 87Switzerland, 122, 170, 218

Talleyrand-Périgord, Charles- Maurice de (1754–1838), 11–13, 15, 18–20, 33–35

Targowica Confederation of (1792), 42Tauber, 94Teplitz, Treaty of (1813), 10Teutschenbrunn, Johann Heumann von

(1711–1760), 40Trento, 75Tübingen, 96Tuileries Palace, 19, 163–164Tyrol, 75, 89

Versailles, 18, 163Vienna, 66–67, 86, 93–94, 129, 134–135,

140, 152, 186, 202Vienna, Congress of (1814–1815), 33,

46, 59–60, 64, 66, 68, 73, 79, 82, 84, 101, 115, 210

Vienna, Ministerial Conference (1819–1820), 134–135, 188, 202

Vienna, Ministerial Conference (1834), 152

Villèle, Jean- Baptiste Guillaume Joseph Marie Anne Séraphin de (1773–1854), 158, 162, 164–165

Vincke, Ludwig von (1774–1844), 55–56

Vitrolles, Eugène François Auguste d’Arnauld de (1774–1854), 158

Vorarlberg, 75

Wars of Religion (1562–1598), 163Waterloo, 156Weber, Max (1864–1920), 31Weishaar, Jakob Friedrich (1775–1834),

59Welcker, Carl Theodor (1790–1869), 55,

152Westphalia, 44, 66, 76, 80, 83Wiener Ministerkonferenz see Vienna,

Ministerial Conference (1819–1820)

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Wiener Schlussakte (1820), 134–135, 145, 148, 151, 173, 177, 188–189, 202

Wilhelm I, Elector of Hesse (1743–1821), 129

Wilhelm I, German Emperor (1797–1888), 219

William I, King of the Netherlands (1772–1843), 59

William VI of Orange see William I, King of the Netherlands (1772–1843)

Winter, Ludwig Georg (1778–1839), 150–152

Wittelsbach, House of, 91, 131Wrede, Carl Philipp von (1767–1838),

134

Württemberg, 3, 5, 63–64, 83, 89, 144–146, 178, 188

Würzburg, 75, 123

Zachariae, Karl Salomo (1769–1843), 147–148

Zähringen, House of, 81, 150Zastrow, Friedrich Wilhelm von

(1752–1830), 128Zehn Artikel (1832), 176Zentner, Georg Friedrich von (1752–1835),

89–93, 102–104, 107, 113, 116–117, 129, 134–135, 137, 139–140, 210–211

Zentralkommission zur Untersuchung hochverräterischer Umtriebe, 186

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