Hungary's Long Nineteenth Century

Hungary’s Long Nineteenth Century Central and Eastern Europe

Regional Perspectives in Global Context

Series Editors Constantin Iordachi Central European University, Budapest Maciej Janowski Institute of History, Polish Academy of Sciences, Warsaw Balázs Trencsényi Central European University, Budapest

VOLUME 1

The titles published in this series are listed at brill.nl/cee Hungary’s Long Nineteenth Century

Constitutional and Democratic Traditions in a European Perspective

Collected Studies

By László Péter

Edited by Miklós Lojkó

LEIDEN • BOSTON 2012 Cover illustration: The cartoon on the front cover is reproduced from the Hungarian satirical weekly Borsszem Jankó 13, no. 672 (48) (November 28, 1880): p.3.

Library of Congress Cataloging-in-Publication Data

Péter, L. (László), 1929-2008. Hungary’s long nineteenth century : constitutional and democratic traditions in a European perspective : collected studies / by László Péter ; edited by Miklós Lojkó. p. cm. -- (Central and Eastern Europe : regional perspectives in global context, ISSN 1877- 8550 ; v. 1) Includes index. ISBN 978-90-04-22212-0 (hardback : alk. paper) -- ISBN 978-90-04-22421-6 (e-book) 1. Hungary-- History--19th century. 2. Hungary--Politics and government--19th century. 3. Hungary--Foreign relations--Austria. 4. Austria--Foreign relations--Hungary. I. Lojkó, Miklós. II. Title.

DB933.P383 2012 943.9’042--dc23 2011049117

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This book is printed on acid-free paper. CONTENTS

Central and Eastern Europe, Series Preface ...... ix Editorial Preface ...... xiii Preface ...... xxi

Introduction ...... 1 The Traditional Vocabulary ...... 3 The Conversion of the Constitution ...... 6 Two Historians ...... 11

1 The Holy Crown of Hungary, Visible and Invisible ...... 15 The Crown of St Stephen and its Provenance ...... 18 The Cult of St Stephen’s Crown ...... 25 The Visible and the Invisible Crown Compared ...... 33 Rex and Corona: The Incumbent and the Institution ...... 34 Corona Regni ...... 40 Werbőczy on the Holy Crown ...... 44 Reincorporation with the Crown and the Ország ...... 49 The Holy Crown Uses in Statute Laws and Government Instruments ...... 52 The Lands of the Hungarian (Holy) Crown ...... 56 The Inveterate Crown Uses ...... 58 The Extension of the Holy Crown Membership ...... 60 The Holy Crown, the Nation and the Constitution ...... 65 Limited versus Mixed Monarchy in the Jurists’ Works ...... 70 The Making of the Doctrine of the Holy Crown ...... 77 Hungarian Exceptionalism ...... 86 The Impact of the Doctrine ...... 90 The Utility of the Doctrine ...... 93 Against the Current: Eckhart ...... 96 Revival ...... 101 Conclusions ...... 106

2 Ius Resistendi in Hungary ...... 113 Resistance as a Right ...... 113 Werbőczy and the Ius Resistendi ...... 119 vi contents

Contractualism ...... 125 Conclusions ...... 130

3 The Irrepressible Authority of Werbőczy’s Tripartitum ...... 134 Decreta Regni ...... 137 Legislation and Consuetudo ...... 140 The Ascendance and the Eclipse of the Tripartitum ...... 141 Jurists and the Two–Track View of Legal Sources ...... 145 Werbőczy Reclaimed ...... 148

4 Montesquieu’s Paradox on Freedom and Hungary’s Constitutions 1790–1990 ...... 153 The Paradox...... 153 Montesquieu and the Hungarian Constitution ...... 155 The ‘Kinship Theory’ ...... 161 The Communists ...... 167 After Communism ...... 168

5 Language, the Constitution, and the Past in Hungarian Nationalism ...... 183 Language ...... 184 The Constitution ...... 191 Epilogue ...... 196

6 Lajos Kossuth and the Conversion of the Constitution ...... 199

7 The Dualist Character of the 1867 Hungarian Settlement ...... 213 The Quasi-Legal Character of Politics in the Monarchy and the Gloss on the 1867 Settlement ...... 216 The Statutory View of Public Law ...... 220 The Concept of the State ...... 221 The Concept of Legal Sovereignty: The Doctrine of the Holy Crown ...... 223 Political Crises and the 1867 Settlement ...... 226 The Ősi (Ancient) and the Korszerű (Modern) Constitution ...... 228 The Dualism of Crown and Ország ...... 232 The Habsburg Empire and the Conversion of the Rights and Duties of Crown and Ország into Constitutional Laws ...... 235 Deák’s May Programme of 1865 ...... 240 contents vii

The ‘Outline’ of the Subcommittee of Fifteen ...... 244 Law XII of 1867 ...... 251 The Nature of the Settlement ...... 258 The Ausgleich with the Other Lands ...... 264 The Monarch and the Union of the Lands ...... 275

8 The Autocratic Principle of the Law and Civil Rights in Nineteenth-Century Hungary ...... 281 The Rights of the Individual ...... 281 The Autocratic Principle of the Law ...... 282 Property Rights and Legal Equality ...... 285 Personal Rights ...... 288 Civil Rights ...... 290 The Right of Association ...... 291 Regulation of Associations by the Ministry of the Interior ...... 294 Ministerial Regulation of Public Assembly ...... 298 Conclusions ...... 301

9 The Aristocracy, the Gentry and Their Parliamentary Tradition in Nineteenth-Century Hungary ...... 305 Introduction ...... 305 Social Reform and the Landowning Élite ...... 309 The Character of Political Reform ...... 314 Aristocracy versus Gentry ...... 320 The Political Traditions of the Aristocracy and the Gentry ...... 325 The Influence of the Aristocracy on Political Issues ...... 328 Conclusions ...... 340

10 Law XLIV of 1868 ‘On the Equality of Nationality Rights’ and the Language of Local Administration ...... 343

11 The Army Question in Hungarian Politics 1867–1918 ...... 355 The Constitutional Question ...... 355 The Army Question and the Constitution ...... 357 The 1867 Constitutional Settlement and the Army ...... 359 After the 1867 Settlement ...... 363 The Army Question and Apponyi ...... 364 The Watershed: The 1889 Great Defence Debate ...... 369 The Army Crisis of 1903 ...... 374 viii contents

The Swing of the Pendulum ...... 379 Conclusions ...... 380

12 Intellectuals and the Future in the Habsburg Monarchy 1890–1914 (with Robert Pynsent)...... 393 The German Culture ...... 393 The Culture of the Lands ...... 394 The fĳin-de-siècle ...... 398

13 Church-State Relations and Civil Society in Hungary: A Historical Perspective...... 405 The Need for a Historical Perspective ...... 405 The Autocratic Principle of the Law ...... 406 The Legal Position of the Churches ...... 409 Equality of Religion in Legislation ...... 411 The Three Classes of Religion ...... 416 Received Religions ...... 416 Tolerated Religions ...... 419 Recognised Religions ...... 420 The Balance-Sheet of Church-State Relations ...... 423 Church-State Relations under the Communist System ...... 425 Church-State Relations in Crisis ...... 430 The Reconstruction of Church-State Relations ...... 434

14 R. W. Seton-Watson’s Changing Views on the National Question of the Habsburg Monarchy and the European Balance of Power ...... 438 Germanophile ...... 440 Hungarian Independentist ...... 447 Defender of the Nationalities ...... 457 Epilogue and Conclusions ...... 462

Index...... 467 CENTRAL AND EASTERN EUROPE: Regional Perspectives in Global Context

This peer-reviewed book series publishes innovative research on various historical, social, and cultural aspects of Central and Eastern Europe. As the editors of the series, we aim at stimulating dialogue and exchange between scholarship on Central and Eastern Europe and other academic research traditions and placing these fĳindings in a global context. Although we distance ourselves from the traditional perspective of ‘area studies,’ which tends to approach historical regions in isolation and thus runs the risk of parochialism, we posit nevertheless that there is an immense analytical potential in comparative and transnational research on particular regions. We hold that concepts of historical regions are analytical constructions devised for heuristic purposes; as abstract concepts, they do not reflect historical reality per se, but are attempts at endowing geography with historical and cultural meaning, reflecting ‘essentially contested’ geopolitical conceptions prevalent at a certain historical moment. In our usage, Central and Eastern Europe refer to the vast historical space between the Baltic and the Adriatic, on the one hand, and from Germany to the former Soviet territories, on the other hand. Routinely this ‘Other Europe’ is subdivided into Central, Eastern, and Southeastern regions. Even though we invite contributions that extend issue-oriented comparisons to the latter region as well, we reserve an exclusive focus on the Balkans to another, specialized, book series of Brill Publishers. While largely heterogeneous, this space is characterized by a distin- guishable geopolitical position, multiple imperial and ‘composite state’ legacies (most notably the Holy Roman Empire of the German Nation/ Germany, the Habsburg Empire, the Hungarian Kingdom, Bohemia, and the Polish-Lithuanian Commonwealth, to which we should also add tangible Byzantine/Ottoman and Russian/Soviet influences), a common recent communist past, and—connected with this—common postcommunist challenges marked by processes of transition to a market economy, political democratization, and integration into European and Euro-Atlantic political, economic, and security organizations. Without pleading for any rigid defĳinition of regions, we argue nonetheless that concepts of historical regions are able to serve as privileged angles x central and eastern europe through which to approach the history of certain geographical spaces and as useful devices for tackling certain research topics. What one can gain from employing a regional framework of interpretation is the drive for historical comparison, a permanent challenge to retain the complexity of the units of analysis, the plurality of scales, as well as, to a certain extent, the reflection on the fuzziness of the very categories of comparison. Regional perspectives have the potential to overcome isolated national ‘grand narratives’ by inscribing seemingly local or nation-specifĳic phenomena into larger contexts. Such approaches provide a possible remedy against discourses of national exclusivism and exceptionalism, facilitat- ing the reappraisal of a wide range of regional or European topics, such as: the politics of the estates in composite state structures; the collapse of the ‘ancien regime’; the clash of multinational empires; imperial legacies; the patterns of nation formation and national identity discourses; and, fĳinally, the history of totalitarianism, political repression, and social engineering in both fascist and communist versions. In addition, this approach might orient interregional scholarly dialogue towards a new basis. During the Cold War, Central and Eastern Europe were forcefully lumped together into the loaded ideological category of Eastern Europe in an efffort to impose politically driven homogeneity upon areas that traditionally exhibited great diffferences in their historical developments. In the postcommunist period, an opposite phenomenon occurred, and the histori- ographies of the two regions developed in relative isolation from one another, in a centrifugal reaction meant to emphasize diffferences rather than similarities or common developments. We believe there is an obvious convergence of approaches in various national academic communities in postcommunist Central and Eastern Europe, which creates the opportunity for a broader scholarly dialogue leading to new transnational research which could transgress Cold War regional classifĳications without reverting to a set of isolated national narratives. The history of former communist regimes, in particular, provides a fertile common ground for testing new transnational methodologies; their study necessitates comparative and interdisciplinary perspectives combining insights from political and social history, oral history, political science, sociology, and anthropology, among others. On a more general level, this exercise in regional comparative research can potentially enrich European or global narratives as well. It is our con- viction that the post-1989 renewed interaction and cross-fertilization between Central-, Eastern-, and Western-European academic communities can contribute to the rejuvenation of contextually sensitive central and eastern europe xi

scholarship. While sharing larger, Europe-wide developments, the rich and still underresearched experience of Central and Eastern Europe in the early modern and modern periods—marked by massive demographic and sociopolitical transformations, competing projects of nation-building, the impact of fascist and communist dictatorships, the processes of political democratization and European integration—presents certain partic- ularities that makes these regions laboratories for the study of social, cultural and political transformation. The imperious need to integrate the Central and Eastern European countries into a common European framework thus demands novel transnational perspectives of research, potentially leading to new integrative fĳields of study. The book series has an interdisciplinary orientation, including history, anthropology, archaeology, political science, sociology, legal studies, economics, religion, literary studies, cultural studies, gender studies, theater, fĳilm, and media studies, and art history. We invite submissions of monographs, collections of studies, and editions of source materials on Central and Eastern Europe, primarily in English. Especially welcome are comparative studies at various subnational, national, and transnational levels, and studies of the shared/entangled history of these regions. CENTRAL AND EASTERN EUROPE: Regional Perspectives in Global Con- text is edited in cooperation with Pasts, Inc., Center for Historical Studies (www.pasts.ceu.hu) at the Central European University, Budapest, which acts as its academic host. It builds on the successful experience of, and is developed in close cooperation with, the journal East Central Europe (www.ece.ceu.hu), founded in 1974, which has been providing a forum of scholarly exchange among local and foreign scholars working on Central and Eastern Europe during the last decades.

Series Editors Constantin Iordachi (Central European University, Budapest) Maciej Janowski (Institute of History, the Polish Academy of Sciences, Warsaw / Central European University, Budapest) Balázs Trencsényi (Central European University, Budapest) EDITORIAL PREFACE

László Péter had the knack of turning personal confrontations into incidents of world-historical signifĳicance. One early afternoon he went on a postprandial jog on his usual path at Hampstead Heath in driving rain. As he animatedly recalled to his wife and daughter and myself on his return, no sooner had he embarked on this characteristically Quixotic exercise (he nearly always did his constitutional walks and jogging in driving rain) than he spotted a mounted police offfĳicer riding along the pedestrian path instead of using the bridal path allocated for horse riders, thus ‘churning up the path’ and making it difffĳicult for pedestrians to run or walk. The professor of Hungarian constitutional history promptly and fearlessly accosted the British representative of the law: he stepped fĳirmly in front of the horse, forcing the policeman to stop. Thereupon he harangued the offfĳicer with a strong Central European accent (but with faultless English grammar) for a good fĳive minutes on the minutiae of how and to what extent he had broken both the customary and statutory law of the land of which he was a servant. Péter added that he himself had emigrated from Hungary many decades before for the very reason that a civil society and a Rechtsstaat based on Montesquieu’s spirit of the laws binding all citizens could not develop there because of communist dictatorship. He did not do so only to fĳind that in his new home country, England, the servants of law and order themselves broke the law, so could the offfĳicer please take his horse somewhere else where he would not disturb walkers and joggers in contravention of the by-laws of the Heath. Naturally, the offfĳicer, who had never heard or seen anything like this before, became utterly bewil- dered by this solemn academic sermon. He apparently mumbled something to Péter apologetically, then turned his horse around and quickly disappeared from the scene. This story had its precursor back in Hungary when Péter, as a young provincial archivist, had the temerity to lecture a communist security offfĳi- cial about his proper duties in regard to archiving the documents of his organisation. As opposed to the incident in Hampstead, in Hungary Péter had been relieved of his post as a result. László Péter was born in Hungary in 1929. His formative years coincided with the disintegration of the old Hungarian state and its re- emergence as a communist satellite. The experience of the 1940s shaped xiv editorial preface his historical interests for the rest of his life. The constitutional and legal character of the state, and the malleability of its institutions would remain recurrent themes in much of his later writing. He never pretended not to have been an outsider to British culture. Yet he absorbed large bits of it with unquenchable thirst and relish, thus acquiring a unique combination of Anglo-Saxon political and moral values grafted onto the politically conservative and yet curiously rebellious personal character with which he had emigrated from Hungary in the aftermath of the 1956 Revolution. Péter had no problem with his identity. ‘I am’, he once confĳidently (and impishly) said, ‘a member of an important part of the intellectual life of the United Kingdom. I am one of those who have helped to determine the way in which Englishmen think. I live in Hampstead with the rest of the Continental rifff-rafff that has been coming here ever since Karl Marx showed the way.’ He had a good sense of humour but he was always serious. He took himself seriously, he took his colleagues seriously and—an increasingly rare and increasingly unre- warded virtue—he took his students and his teaching seriously. During the half century of his émigré life in Oxford and London, Péter’s academic outlook evolved into an idiosyncratic set of paradoxes. He had received in his native Hungary strict Catholic and Hungarian nationalist orthodoxies which he did not accept unquestioningly. The question marks and endeavour to open new avenues of interpretation and demon- stration were already apparent in his famously pedantic, some would say impenetrable, Oxford D Phil. dissertation on ‘The Antecedents of the 19th Century Hungarian State Concept: An Historical Analysis. Background and Creation of the Doctrine of the Holy Crown’ submitted in 1965 under the supervision of C.A. Macartney, who once wrote that Péter was ‘a walking encyclopaedia of Hungarian history’ and only his ‘alleged student’. Péter’s thinking was also influenced in Oxford by John Plamenatz, the social and political theorist. It was Plamenatz’s influence that drew Péter towards the history of political ideas and constitutional development, the subject that he would later teach and write about for more than thirty- fĳive years. Péter would gradually espouse a distinctly revisionist line albeit within conservative and national boundaries, a course originally associated with Ferenc Eckhart, his former teacher at Pázmány University in Budapest. While his approach remained essentially Hungarocentric, Péter took an increasingly anti-nationalist stance in rejecting some canonical claims for Hungary’s pre-1918 supremacy in the Danubian lands. It is curious and yet editorial preface xv again ironical that since conservative and canonical interpretations managed to survive into Hungary’s socialist historiography, Péter’s own quiet rebellion against accepted orthodoxies, such as the missionary role played by Lajos Kossuth in Hungary’s 1848 Revolution or the Thermidorian conservative nature of the Ausgleich—the Austro-Hungarian Settlement forged in 1867 and resulting in the Dual Monarchy—led him to stand in almost lonely contrast to the Hungarian historical élite establishment during the communist years. The fault lines did not develop between new-fangled Marxists who rethought the accepted truisms of the past in Hungary versus the unreformed conservative émigré ploughing his ossi- fĳied ways in London. If anything, the opposite. Péter revised the orthodoxies on Hungarian and Central European history. His assertions still make uncomfortable reading for some professionals in and outside Hungary and certainly for the general public. Thus, while respected and closely observed and listened to, Péter’s views and positions were not genuinely popular in his native land. Péter explained to his British audience on various occasions that Hungarians had their own version of the Whig interpretation of history. Butterfĳield’s bien pensant English historians (from Hallam through Thomas Babington Macaulay to George Macaulay Trevelyan), saw English history as the progressive epiphany of a liberal world in which the English, self-governing, free, cultured, rich in trade and manufactures, had arrived, by way of Magna Carta, the Great Rebellion of the seventeenth century, the Bill of Rights, the Great Reform Act and the institution of a governing class recruited by examination, at a state of political nirvana, righteous, satisfĳied, peaceable and rulers of the world. History has taught us diffferently. For Hungarians, perhaps more modestly, history is also progressive and the myth is of equal antiquity. It is one in which the independent rights of the Hungarian nation can be seen to unfold from the day on which Stephen received his crown from Sylvester and on through Andrew II’s Bulla Aurea of 1222, the Pragmatic Sanction of 1723, the April Laws of 1848 and the Ausgleich of 1867. This teleological belief still underlies much Hungarian historiography and remains virtually unchallenged. László Péter’s purpose was to demonstrate that this mythology was miscon- ceived and has been disastrous in its consequences. As an interpretation of Hungarian history, it infects the understanding of all aspects of this part of Central Europe. One of his most enduring disagreements on central issues of Hungary’s turning points in the nineteenth century was pursued with György xvi editorial preface

Szabad. After an initial period of less conventional analysis, from the 1980s onwards, Szabad, the grandee of the ‘offfĳicial’ Hungarian school in nineteenth century constitutional history, argued that while the famous ‘April Laws’ of 1848 had secured for Hungary the legal attributes of an independent state, in the Compromise of 1867 the autocratic powers of the monarch were readmitted, throwing away the core achievements of the revolution. Crucially, in Szabad’s reading, the mixture of liberal measures and national independence secured through the April Laws had, by 1867, solidifĳied into a prescriptive benchmark against which constitutional change should be appraised in Hungary. By contrast, Péter maintained from the start that, unlike 1867, the April Laws represented the real compromise since they remained open and provisional in character. The work of the 48-ers, in Péter’s view, was rescued and brought to fruition under the ‘Settlement’ (as he preferred to call it) of 1867. Simplifĳication with modern hindsight will not do. This way perhaps the Ausgleich (as Settlement, rather than Compromise) may sit at the pivot of the Whiggish progression of events. Yet, as a dedicated challenger of reductionist interpretations, Péter was keen to point out that neither 1848 nor 1867 accomplished either national sovereignty or the removal of the autocratic elements of the law in Hungary’s constitution. As late as 2007, Péter engaged in a strident and long drawn-out personal debate with György Szabad on the floor of the council room of the Institute of History of the Hungarian Academy of Sciences about these subjects. It is signifĳicant that Péter settled in the West in order to develop his passionate theories and views on the history of Central European politics and society. His terms of reference were always western interpretations of governance and society, which he idealised. Thus, for instance, he made Montesquieu’s Spirit of the Laws his absolute yardstick for measuring developments in the east where an ‘autocratic principle of the law’ reigned. (See Chapter 4 in this collection). Péter’s only monograph appeared in German as ‘Die Verfassungsent- wicklung in Ungarn’, in volume 7 of the Austrian Habsburgermonarchie 1848–1918 series. His favourite intellectual vehicle was the well-argued article or essay. He was also a mercilessly scrupulous, and perhaps sometimes excessively fastidious, reviewer of his colleagues’ works, while he also submitted his drafts to numerous eyes before a fĳinal text could be approved. The present editor is lucky to have met László Péter fĳirst in 1988. The period represented a watershed in Péter’s life. Before that time, he was more or less tied down in teaching duties and experimenting with ideas, editorial preface xvii searching for terminological solutions. He came into his own after 1989, and most of his best work dates from the last two decades of his life. The author was an intensely textual, text- and language-centred scholar. It has been argued that his productive period coincided with the rise of sociological, economic, anthropological preoccupations among most of his fellow historians which rendered him a lonely and old- fashioned traveller in the fĳields of unreconstructed constitutional and diplomatic history. Yet, the present editor is not sure. While Péter himself would probably have rejected this judgment, it is not too far-fetched to associate him with the exponents of narrative-based, philologically motivated historians with a distinctly modern touch. His patently obsessive search for, and, when found, insistence on, terminological minutiae testifĳies to this proposition. He famously posed an opening question—a riddle perhaps—to a new class of students at the start of each teaching term. He would ask: ‘Can any of you fĳind the only four-letter word in English that is required as a defĳinition of ‘History’ and the defĳinition thus provided would be both necessary and sufffĳicient?’ On most occasions, the hapless freshers would be groping for an answer in vain for minutes, then offfering non-starter solutions such as ‘past’, ‘idea’, ‘tale’ or ‘fact’. The professor would then end the suspense by announcing that the true winner was the word ‘text’. While all the articles that follow prove the point, let three examples illustrate Péter’s preoccupation with precise linguistic representation. He believed, as detailed above, that the word Settlement had to be used in English for the Austro-Hungarian Ausgleich of 1867. Anything else would be a ‘disaster’, he argued. Alone among historians of Hungary, he insisted that ország, the Hungarian word for ‘country’, had to be used in the original Hungarian embedded in English texts (in opposition to the legal denotata of Crown and nobility), as it was an untranslatable terminus technicus. Péter was also quite particular about the use of numerous legal terms in Latin. One instance of this is diaetalis tractatus. The term is reserved for an idiosyncratic negotiating process by which the Hungarian nobility, over the centuries, sought to reconcile their rights with those of the king. These rights were, apparently, irreconcilable. Custom and statute were, in principle, always at odds with each other. There was never a legal handbook on the Hungarian constitution that could be accepted by both sides in the recurrent disputes. Yet, Péter insisted that in spite of its vague and indeterminate defĳinition that might be reduced to mean a permanent brawl between King and his nobility, the term should always be precisely applied. xviii editorial preface

The heavy emphasis laid on language and text is underlined in the Introduction written by the author to precede the articles to appear in this volume. The Introduction was meant to be reproduced unchanged. It is not an itemised lead onto the individual pieces in the collection. Rather, it is a personal address to the reader explaining the author’s interest in the history of legal and constitutional concepts and ideas and their semantic representation in historical narrative: what we now call Begrifffsgeschichte. Individual essays in this collection, reproduced with corrections and other changes from earlier publications, many of which are virtually inac- cessible today, do not follow a single pattern or line of argument. They have been chosen by the author and the editor together to represent the author’s most valued pieces (with inevitable occasional overlaps) rather than to provide total thematic coherence. While most of the articles revolve around Péter’s long standing preoccupation with Hungary’s nineteenth century constitutional development, No. 12 is a short essay (produced together with Robert Pynsent) on the cultural aspects of the whole of the Dual Monarchy and last piece shows the author’s strong interest and refĳined argument concerning Anglo-Central European relations at a time of crucial change in the nature of those relations at the beginning of the twentieth century. Perhaps, some of the narrative and argument may seem dated today, (written as long ago as 1984 in case of No. 7), and misses certain additions to the subjects discussed by other authors. Some references to controver- sies, grand debates, among historians who have now retired or died may appear remote for some readers (e.g. the debates pursued by Péter Hanák and György Szabad outlined in the last section of the Introduction). Yet the essays convey a unique, masterly and massive analysis of the subject-matter and offfer an insight into the author’s perspicuous (and often pugnacious) debating skills. László Péter fell seriously ill soon after his wife Margaret’s untimely death, never really recovered and died almost exactly three years ago. He was most anxious that this collection be published in his lifetime. The wish was not granted. He departed before his time in another sense as well. What ultimately waited for Péter to lay bare for his readers was the underlying and gradual process by which attempts were made to substitute statute for custom not only in Hungary where the process was incomplete, but to relate it to the better trodden ground of English legal history and so integrate our understanding of a fundamental aspect of European development. This we editorial preface xix never saw, but it was there and if he had lived longer we would all have been richer for its exposition. May this posthumous publication stand as a memorial to his achievements.

Editor’s Acknowledgements

I would like to express my gratitude for the precious support and encouragement that I received from colleagues in Budapest and London throughout the preparation of this book. I wish to thank, in particular, Ágnes Bendik who provided dedicated assistance in reviewing the text and in compiling the Index.

Miklós Lojkó Budapest, August 2011 PREFACE

This collection of studies and essays written over many years which appeared in various places are connected to form a particular view of Hungarian political institutions. For this reason, it may be of some use to bring them together in this volume. A few subjects, central to my concerns as a historian, like the customary legal system, diaetalis tractatus or the autocratic principle of law, turn up more than once. The reader will therefore fĳind, and for this I beg his indulgence, that here and there he will encounter the repetition of an earlier argument. I am indebted to and grateful for the help my work received from my colleagues at the School of Slavonic and East European Studies, University College London. Robert B. Pynsent, the magister elegantiae of the college, has read many of these studies in MS form and so did Martyn Rady. Angus Walker read some of the recent pieces. I discussed my work regularly with Trevor Thomas. Robert J.W. Evans and Mervyn Jones (both Oxford) and Neville C. Masterman (Mumbles) helped me with some of the studies. I am grateful to my readers for suggesting improvements of style and grammar. I should also thank SSEES, UCL for supporting my journeys to Hungary from 1965 onwards and the European Institute in Budapest for providing accommodation regularly for two decades.

L.P. London, 2008 INTRODUCTION

Undeniably, place and time leave their mark on the historian’s work. Hungarian history looks rather diffferent from London, where I live, than it does from Budapest where I was brought up. As a colleague shrewdly observed: ‘one should not expect to get away with impunity for living in England’. So it is incumbent on me, before doing anything else, to explain in this introduction what I was trying to do in the studies published in this volume. My interest is in political institutions: how power is constructed, what the forms and instruments are through which it is exercised, what ideas surround the processes and what we can say about the nature of the social forces involved. I try to explore the subject historically and analytically. The former concerns the provenance of terms and the genesis of concepts; the latter is an inquiry into who gives orders and on what grounds. I believe that an enquiry into constitutional forms and ideas in this wider sense sheds more light on the nature of the Hungarian political system and the character of political changes than preoccupation with questions focused on social progress. The chief concern of much historical writing over the last half century appears to have been whether events, changes, movements, policies pointed to the future or were to conserve what had become obsolete. I would not argue that historians should not ask these questions but, submit that in themselves, they elided much that is crucial to historical understanding. Constitutions, with few exceptions, are not set in tablets of stone. They do not possess meaning independently of what a group of people impute to them for the time being; and there will normally be other groups to contest these meanings. Their disputes cannot be settled by the historian striving to establish the ‘correct’ interpretation of constitutional points. In an epoch of constitutional history we may fĳind the simultaneous appearance of older and novel vocabularies and an adequate understanding of the constitutional issues must involve consideration of the conflicting principles raised by these antagonistic vocabularies. The terms employed and indeed the conceptual frameworks in the main stream of writing have been invented and imposed on events by Hungarian historians writing in the relatively recent past. Herewith an (incomplete) list of the terms and the concepts, most of which are used normatively; 2 introduction

the statutory view of law, legislation, executive power, personal versus real union, absolutism versus parliamentary system, royal veto, the state, national independence, nation-state, sovereignty, feudal system, polgári (bourgeois) development. This vocabulary is the manifestation of interpretations and concepts that are important and consistent when understood within the context of the time and place with reference to which they were generated but are otherwise anachronistic. Many historians, although they would acknowledge when challenged that contemporary terms and concepts must not be read into the past fail to abide by the rule. To give a few examples: for many practitioners it is axiomatic that King St Stephen at the end of the fĳirst millennium established the ‘Hungarian State’. The use of the term ‘state’ may be unobjec- tionable as a synonym for royal power, but in employing it we may easily and unconsciously slip into a vocabulary that implies an all embracing public authority in which public and private spheres are distinguished, and where there is an authority that can be analysed in terms of legislative, executive and judicial power and sovereign independence. The use of these terms, however, even in inverted commas, obscures some fundamental features of pre-nineteenth century Hungarian society. Similarly with the term ‘constitution’, which was not introduced until the late eighteenth century through the influence of Montesquieu, is yet a term freely applied to much earlier periods as well. ‘Statehood’ is likewise read into the Art. 10 of 1790 which, however, only asserted that Hungary was a separate Land or kingdom. Again, is there any point in asking whether the Pragmatic Sanction of 1723 established ‘personal union’ between Hungary and Austria when the term is entirely missing from the documents in the light of the knowledge that the distinction between personal and real union was not introduced by Johann Pütter until 1770? And why do historians discuss the April Laws of 1848 in terms of ‘personal union’ when the term is, once again, missing from the documents until the summer of 1848, i.e. well after the promulgation of the April Laws? Again, the doctrine of the Holy Crown, which was fĳirst constructed as late as 1891, is likewise identifĳied by some historians as informing developments in the mediaeval period. And these are random examples of the anachronistic uses of analytical terms. The provenance of these new terms is complex. Some appeared in 1790 and in 1848. Although the appearance of a term often does not carry the meaning we attribute to it later and the new terms interacted and overlapped with an older traditional vocabulary. As concepts, as we introduction 3 understand them today, most of the new terms were established in common usage by the Hungarian disciples of Paul Laband in the 1880s. Others were introduced by Marxists and some show the influence of the Annales school. They are deployed in support of the untenable claims that 1848 was a ‘lawful revolution’ and that the 1867 Settlement was a ‘compromise’ in which Deák abandoned some state rights.

The Traditional Vocabulary

The reconstruction of the past requires the resurrection of a traditional vocabulary that is buried beneath these modern expressions. An incomplete list of examples includes: crown, royal decree and ordinance, coronation, Oath, Inaugural Diploma, land donation, bona nobilitaria, privileges and immunities, consuetudo, ius resistendi, gravamina, postulata, diaetalis tractatus, ország rights, royal commissar, the fundamentalia iura of the status et ordines, the independence of the concilium regium locumtenentiale, tacitus consensus populi, and after the late eighteenth century: avita constitutio, iura maestatica reservata versus communicata, regnum liberum et independens, monarchia pura versus mixta and internal state contracts, közálladalom (common state). The reconstruction of the past on the basis of this traditional vocabulary and procedures reveals some persistent structural features, the deeper currents of which have altered only slowly over the years. These form the longue durée that provides unity and continuity to the Hungarian past including even the developments in more recent times. The past cannot be reconstructed, however, solely on the basis of some old vocabulary. Historians, the present writer not excepted, have to use the terms and concepts that are well outside the times of his subject. Today we use terms like ‘social’, ‘system’, ‘structure’ which we think that help the understanding of historical processes yet their use came into circulation only in relatively more recent times. In this book an attempt is made to demonstrate how the traditional vocabulary offfers a conceptual framework of considerable explanatory power for identifying the central and historically persistent features of the Hungarian political system. Here I shall only try to note in general terms, how the political history after the 1790 period can be understood by reference to three dominant characteristics of the traditional structure and how this perspective difffers from those of the two leading historians of nineteenth century political history since the Second World War, György Szabad and Péter Hanák. 4 introduction

To start with, until well into the nineteenth century the foundation of the social order was not based on statute law but on customary rules. To survive, even decretum regni, the articles of the diet enacted by the monarch, had to acquire the quality of consuetudo, the approved habits and usages of the nobility. The statutes did not yet form an independent legal source. Tacitus consensus populi was an essential requirement in the operation of the legal system. Article XVIII of 1635 stipulated that statutes passed by the diet or a county assembly which contravened some of the provisions of Werbőczy’s Customary had no legal force. For most of the 18th century, the diet was not itself competent to interpret certain important rights of the nobility that could only be authoritatively established by reference to custom. Article XII of the de legislativae et executivae potestatis of 1790 did not create a statutory system of law. Legislation became an independent source of law in the 1830s only after Count István Széchenyi’s Hitel, under the influence of Bentham, demolished the precept that some laws were immutable. Only then was it generally accepted that laws were made and unmade by the diet. But consuetudo remained even in the twentieth century an independent source of law which could destroy statute law (desuetudo). Notably, Hungary’s Civil Code drafted in the late nineteenth century was never more than a ministerial draft and was applied by the judges on the basis of customary law. The fĳirst statutory Civil Code was passed by a (communist) parliament in 1959. Government rendelet (decree), the customary law of the state, acquired a prominent place in the legal system, after 1867—this is dealt with below. The dualism of political authority was another important and unre- marked feature of the political system. Hungary’s political institutions, for centuries, could not be described as a unifĳied political authority but were rather, an extreme form of what German historians call medieval Doppelpoligkeit. There existed, side by side, two main repositories of customary rights, the crown, in which royal offfĳice was vested to rule and govern the country, and the Land, the noble ország, whose customary rights the monarch had to maintain and that exercised local power through the ownership of land and the counties. Each side possessed praerogativa which the other side was duty-bound to respect. The adver- sarial relationship of crown and ország for centuries generated conflict, sometimes armed and protracted, as well as negotiation and accommodation. They bargained with each other as independent factors in the diet. The diaetalis tractatus produced settlements of disputes in 1606 (workable), 1681 (unsatisfactory), 1687 (under duress), 1711–15 and 1723 (successful), 1790 (workable), 1848 (unsuccessful), 1867 (successful) and introduction 5

1906 (abortive). The alternating courses of conflict and accommodation until the dissolution of the Monarchy in 1918 was a persistent structural feature or a characteristic in the longue durée in Hungarian politics. Nevertheless, even a successful settlement could not remove the root causes of conflict. There was no agreement even on the question of the succession to the throne. Although both sides held that the throne had to be fĳillediuxta antiquam consuetudinem, the Court understood this as iure haereditario and the ország as libera electio. Before 1848 the Court, the aristocracy of the Upper House, the Church hierarchy and the university jurists understood the political system as a monarchia pura in which authority was solely in the hands of the monarch who was constrained only by his duty to govern in accordance with the laws and customs of his kingdom. It was, in this respect, monarchia limitata rather than monarchia absoluta. The monarch consulted the diet over alterations to be introduced in the afffairs of the ország but their consent was required, so it was alleged, only when their fundamental rights were afffected. The gentry of the Lower House and their jurists held, however, that authority was divided between the monarch and the nation, in fact, the constitution was monarchia mixta, a view that university jurists without exception rejected. Jurists on both sides distinguished matters that were the sole responsibility of the monarch, iura maiestatica reservata, from those that were to be handled in the diet, iura maiestatica communicata. The ország recognized the potestas executiva as the monarch’s reserved right. Otherwise, where the division lay was a contested issue. Even after 1800 the diet heatedly debated whether the fĳixing of the price of salt was communicata or reservata. Not surprisingly, a book on the constitution which had the agreement of both sides was never written and the art of politics was to fĳind formulae in thediaetalis tractatus which impaired neither the Court and the loyalists’ claims nor those of the Land, the ország. When such formulae could not be found the losing side at the diet remonstrated against the decision (óvás). The third dominant feature of the political system was what may be called the autocratic principle of law. Public power in the Habsburg Monarchy and elsewhere in Central Europe was exercised in accordance with statute law and in Hungary with established custom. The presumption of the law, in case of conflict, in both ius privatum and ius publicum was on the side of the political authority. The burden of proof rested with the plaintifff whose task was to demonstrate that the authority trans- gressed its power by its action against the plaintifff on a point where his rights were expressly protected by the law. And where the law did not 6 introduction demonstrably protect the individual or group, the authority was free to act. The authorities could lawfully, praeter legem so to say, enact rendelet (decree). After 1867 government or ministerial decree regulated the whole gamut of civil rights and this became a very active instrument that was employed to enhance the power of the executive branch of the state.

The Conversion of the Constitution

How did these three central features of the traditional structure afffect the system? In the nineteenth century, the constitution went through a long, discontinuous process of development. The system based largely on customary rights was transformed to one partly based on statute law. Through this conversion the segmentary ‘feudal’ society, based on a hierarchy of privileges, was replaced by a social order founded on a unitary legal system in which statute laws applied equally to all. The empire was not a unifĳied state but a monarchic union of Lands in which the ország was a part of the empire but also separate from it: ország and empire moved on diffferent planes. From the perspective of the Court, since 1723 regnum Hungariae had been a hereditary province of the dynasty’s three main branches on both lines. From the perspective of the ország, Hungary was regnum independens, a separate Land as Article X of 1790 stipulated. Hungary was connected to the other Lands of the empire largely through the monarch. The imperial matters—foreign policy, defence and state fĳinance—were handled by the monarch as reservata exercised by him as the king of Hungary. In 1804 Emperor Franz assumed the title of Emperor of Austria for all the Erblande of the dynasty and for the other Lands, including Hungary. Thus Hungary formally became part of the Empire of Austria. The Court reassured the diet, however, that the assumption of the monarch’s new title did not in any sense afffect the laws and the constitution of Hungary. After discussion the diet concluded that the title change was not something that afffected them. In the conversion of the constitution the aim of the liberal nationalist reformers was the erection of polgári társadalom. By this they meant civil society in a strictly pre-Hegelian rather than in its post-Marxian sense. The mantra phrase was jogegyenlőség, equality before the law. Civil society was to be national through magyarization, and government was to be constitutional through self-government. The programme did not include the creation of a society led by the bourgeoisie. On the contrary, the programme was to preserve the ascendancy of the nobility in society. introduction 7

An important shift took place, however, within the social elite. The gentry, the bene possessionati under Lajos Kossuth’s dynamic leadership, replaced the aristocracy of the Upper House as the dominating political force by their control of the Lower House of the diet in 1847. In the outburst of reforms enacted as the April Laws in 1848 the foundations of civil society were laid. The conversion of the constitution afffected Hungary’s relation to the Empire. A momentous change was that the ország acquired the right to autonomy in the management of its own afffairs and limited influence on imperial matters. Under the law an ‘independent Hungarian responsible ministry’ was established. Critically important was § 6 of Law III in which the law stipulated that in all those matters which had hitherto been ‘or should have been’ the responsibility of the Hungarian royal authorities, ‘and in general, all civilian, Church, fĳiscal, military and defence matters’, the monarch was to exercise executive power exclusively through the Hungarian ministry. As the same law established the ministers’ legal and political responsibility to parliament, it is clear that the executive power hitherto reservata was now converted to one which was communicata. It is also clear that the extent of executive power was defĳined by the range of authority that the Hungarian royal offfĳices had possessed (which included, for instance, various fĳiscal and army matters like enlisting and quartering). The imperial matters of foreign afffairs, army leadership and state fĳinance were outside the executive power and remained monarchic reservata. Further, the remit of §6 of the Law might have been lacking in defĳinition but it followed from the autocratic principle of the law that the presumptio iuris in uncertain cases was on the side of reservata. This was the view of the Court, the loyal aristocrats and the university jurists. The disciples of Cziráky and Virozsil himself, even as late as 1865, argued in this vein. The April Laws of 1848 made abundantly clear that Hungary was to remain a part of the Empire. The royal rescript of the 31 March referred to the közálladalom (the common state) and the preamble of the law afffĳirmed the ‘lawful independence of the ország’ as well as to the ‘lawful relations with the provinces to which by virtue of the Pragmatic Sanction the ország was indissolubly connected. §2 of Law III declared that ‘the unity of the crown and the imperial connection shall be maintained intact’. In 1848 politics was in the hands of the gentry rather than in the loyal aristocracy. The April Laws turned out to be unworkable because the Hungarian political elite and the politicians in Vienna did not keep to their terms. Kossuth and the rapidly rising number of radicals professed new fundamental principles based on the postulate of the independent 8 introduction

Hungarian State. The Batthyány ministry was wringing out further concessions from the Court in order to ‘complete’ its powers. Under the pressure from parliament the government initiated its own foreign policy and created its own army. These moves contravened the terms of the April Laws. On the other side, the imperial army stationed in Hungary, did not efffectively help Hungary, its Hungarian partner, when in June civil war flared up in the South and collusion between the Court and the Croatian leader Jellačić, who refused to recognise the Batthyány ministry, was widely suspected. In 1849 both sides moved over to a new vocabulary that rejected the very idea that the Habsburg domains formed a monarchic union of Lands. The Magyar álladalom (the Hungarian State which replaced the közálladalom) and the Gesammt-Monarchie were incompatible (and unrealizable) aspirations based on the rival claims derived from the new vocabulary of statehood. This new, modern vocabulary also accompanied the intractable conflicts that broke out between the Hungarian political class, the Croats, other national groups and the Empire. Although the April Laws failed as a settlement they, and above all the new claims read into them, set political standards that survived even after the collapse of the Habsburg Monarchy at the end of the First World War. Arguably, without the fĳirst attempt at constitutional conversion in 1848 and the War of Independence in 1849 Deák would not have been able to secure a lasting settlement in 1867. He combined liberal nationalism with a robust view of ország-rights and mastery of the diaetalis tractatus. In opposition to the loyalists he asserted right at the beginning of his political career in August 1834 that it was not the monarch who conferred rights on the nation but the nation that was the source of all the rights of the monarch although the nation always respected the rights he possessed by virtue of bilateral settlements (D.F. beszédei, I, p. 103). In Deák’s view Hungary had always been a constitutional monarchy de iure. The court offfĳicials were adamant in rejecting this claim: Hungary had an ancient constitution, they argued, but the monarch’s powers were complete. After the enactment of the April Laws they did not need to change their position because the responsible government did not survive. In 1861 Franz Joseph made his ministers promise that they would not as much as mention the word constitution in the future: although he was a monarch who respected the laws. The Hungarian Settlement of 1867 was a breakthrough. At the end of Deák’s successful diaetalis tractatus the monarch accepted that political authority was dualistic. The coronation and the handing over of the Diploma at the diet (now parliament) were traditionally at the introduction 9 centre of the crown-ország relationship. They were not mere ceremonies but possessed an essential constitutive role. On 6 June 1867 in the royal palace Franz Joseph handed over the Diploma to the representatives of the ország upon which they asked the monarch and the queen to accept the crown. The king then declared that as the country had justifĳied the confĳidence it had been accorded ‘we could now issue our Diploma which shall secure equally the monarchic and the constitutional rights guaranteed by our coronation’. The contradistinction between the monarch’s rights and the constitutional rights is crucial evidence that the old vocabulary of politics and the dualism of political authority survived. Secondly, the monarch now for the fĳirst time conceded that Hungary was a constitutional monarchy through his formal recognition that there subsisted two kinds of legal sources and consequently of public authority. The Settlement is generally described as a ‘compromise’ (a pejorative term in Hungarian politics) in which Deák abandoned some of the rights of the April Laws, which he had still defended in 1861. Arguably, however, Deák only abandoned some of the new claims that in the summer of 1848 were read into the April Laws and, in fact, Deák’s Settlement secured wider rights for Hungary in foreign policy, defence and state fĳinance than had been attained in the April Laws as they were understood at the time of their enactment. After 1867 the Habsburg Empire remained a monarchic union of Lands and government, in both halves of the Monarchy, was constitutional, representative and responsible. The system was, however, not parliamentary but should be described as a mixed government or a balanced constitution. Parliament was not the ultimate source of control. In legislation king and parliament shared equal power and the government required the support of the king and parliament to survive; its political responsibility was strictly dualistic; no government survived without the confĳidence of both the monarch and parliament. The structural dualism of the system enabled the land-owning classes to preserve their ascendancy in public afffairs. Politics was largely shaped by the gentry rather than by the aristocracy or the business classes that never succeeded as developing as independent political forces. Yet politics was not static. On the contrary, in the late 1880s under the influence of the Laband school, the modern vocabulary infused all political discussion. The dominance of a new vocabulary is always a sign that a new concept has been securely established in society. What was new in Hungary was the concept of the internal as well as the external sovereignty of the state. The dominant forces of the political class in parliament and in the law faculties from the late 1880s no longer looked upon 10 introduction the 1867 Settlement as a contract between the monarch and the nation, but as an independent action by the Hungarian legislature that concluded an agreement between two legally fully sovereign states, Austria and Hungary. This was a radical departure from the politics of Deák and the elder Andrássy, although historians have been reluctant to recognise its signifĳicance. The monarch and a few Hungarian loyalists did not accept the new vocabulary. Politicians in the Reichsrat together with the Austrian jurists adopted the new vocabulary, as Gerald Stourzh’s studies demonstrate, but they were looking for a state over and above the two states. The system now headed towards crises. After the turn of the century parliament was always dissolved prematurely by Franz Joseph and in ex lex. (This condition, expressed in dog Latin, obtained when the monarch dissolved parliament but neither the budget nor a law that authorized the collection of taxes and meeting public expenditure had been passed.) The army crisis, which blew up in 1903, debilitated the Monarchy for years. In this major conflict between the ‘nation’ and the monarch the political class demanded a purely parliamentary government while the monarch insisted on the terms of the ‘67 Settlement which secured the rights of the nation and of the monarch in the form of an agreement. The conflict, from which the monarch eventually emerged as the winner on points, induced both sides to fall back on the old processes of structural dualism: the appointment of homo regius and royal commissars backed by army regiments by one side and remonstrations by parliament and the vis inertiae of the counties against government measures by the other side. The executive branch of the state benefĳited from the conflict between the monarch and parliament. After 1867 only fragments of the procedures of the Rechtsstaat were enacted. Property and strictly personal rights were securely established. But under the autocratic presumption of the law civil rights, the right of association and assembly, the right to strike and much else, were regulated and enforced by the government through ministerial decrees and the police. In 1911, the jurist Kálmán Molnár in a comprehensive monograph explored the government decree as a legal source of growing importance. In the 1890s regulations came thick and fast against agrarian socialists, the urban working classes and the nationality movements. The constitutional crisis of 1905–06 and preparations for war produced further measures which were introduced in 1914. Governments after the War and the periods of Red and White Terror showed a reluctance to rescind the strict regulations introduced as temporary measures during the War. Ministerial rendelet became the most important source of law. On the right of association the ministerial orders, introduction 11 the amending orders, the instructions and circulars grew into an impenetrable forest and it required the study of a bulky compendium in order to fĳind a path through them. The treatment by many historians of the discretionary power of the government as a ‘left-over of feudal absolutism’, a remnant of an earlier stage of development which social progress was to diminish and disappear, is a gross misunderstanding of the process. As the jurist Vilmos Szontágh pointed out in a study in 1928, the discretionary powers of the administration were growing and he expected their further extension in the future. How right he was. The untrammelled discretionary powers of the government laid the foundations of the authoritarian state and consolidated procedures, social habits and expectations that debilitated society and made it an easy target for the communist takeover after the Second World War.

Two Historians

Finally, I should substantiate my promise at the outset of this introduction that the exclusive use of a modern and anachronistic analytical vocabulary afffects the writing of history. A brief examination of the views held by two prominent historians of the nineteenth century, a non- Marxist and a Marxist, may help to illustrate the point. Academician György Szabad emerged in 1967 as a leading historian with a monumental study of well over six hundred pages on the history of twelve months between October 1860 and October 1861 under the title Forradalom és kiegyezés válaszútján (1860–61) (At the Crossroads between Revolution and Compromise). In this monograph, a work of immense scholarship inspired by Kossuth’s ideal of the combination of social progress and national independence, Szabad argued that after the collapse of the Bach- regime the political situation in Hungary was explosive. Teleki’s rather than Deák’s policies carried on the aspirations of the 1848 revolution to the attainment of national sovereignty. By 1861 Deák and the political class had already turned away from 1848 and were prepared to compromise on what had been achieved thirteen years earlier. The compromise was not accomplished at that time only because the monarch was not yet ready for one. After At the Crossroads Szabad turned his attention to the constitutional history of the 1848 revolution. There was plenty to do there because apart from István Hajnal’s work on the foreign policy of the Batthyány government published posthumously in 1957, legal historians had totally 12 introduction neglected and indeed continue to neglect the subject. The fĳield thus left vacant was taken over, initially by two scholars of political history, György Spira and Szabad who were later followed by others. In a lecture given at a conference held in 1973 and published in 1976 (Értekezések no. 77) Szabad argued that Kossuth and the other leaders of the time did not yet secure in the April Laws ‘all that was necessary for the nation’s future’. The Law was a compromise, many of its measures were labelled provisional; they required expansion. Thus the April Laws should be regarded as an ‘open’ rather than a closed enactment. Elsewhere Szabad wrote that the April Laws were not a corpus clausum. In 1982 (Századok) he still held the view that the April Laws were ‘open’ and that the Batthyány government strove to wring more and more concessions on state rights out of the Court (p. 1191). This position treats the Batthyány cabinet as a revolutionary government, which it was, and it recognises, although in a roundabout manner, the fact that the government made claims that the April Laws did not secure. Szabad later moved away from this essentially realistic position. In his Inaugural lecture at the Academy in 1983 (published in 1986) he argued that the laws of 1790 produced only the fĳiction of independent statehood but that after the enactment of the April Laws it was no longer possible, under the law, to use any part of the executive power, including defence, in an absolutistic manner (pp. 35f). Hungary in the April Laws attained the essential legal attributes of an independent state including even the control of foreign policy (p. 42). In his Inaugural lecture on becoming a full member of the Academy in 1998 Szabad argued even more vigorously that the Batthyány government exercised the executive power including defence and foreign policy in its entirety under the April Laws. He approvingly referred to the title of István Deák’s book on 1848 as ‘lawful revolution’. This paradox, a journalistic trick, went into general usage; it papered over the awkward dilemma that 1848 was held both to be a revolution as well as the acquisition of political power to which Hungary already had a prescriptive right. In Szabad’s view it followed from all this that when in 1867 the autocratic powers of the monarch, in contravention to the April Laws, were recognized, parliament tragically accepted a settlement which was a compromise on what the April Laws had achieved. The supposed compromise concerned Hungary’s position with respect to the Empire which, as we have seen, were in the April Laws maintained in accordance with the traditional vocabulary of közállada- lom, the unity of the crown and the imperial connection. Yet Szabad interprets the April Laws by using the new vocabulary exclusively which introduction 13 emerged only after the April Laws had been promulgated and was in conflict with them. Academician Péter Hanák was the other scholar of political history who, until his early death in 1997, carried out independent research into constitutional history. Not unlike Szabad, Hanák was also inspired by Kossuth’s vision of social progress coupled with national independence. And like Szabad, Hanák reconstructed nineteenth century history by the exclusive use of a modern vocabulary. Unlike Szabad he did not establish his authority as a historian with a large scale monograph. Starting as a dogmatic Marxist at the Institute of Historical Research, Budapest, which he joined in 1945, where he was for over half a century a formidable intellectual influence, Hanák was a historian of the Dualist system of the Monarchy rather than just of Hungary. As a regular participant at international conferences and as an author with numerous publications in German and English he was well known in the West. Of the large number of his works that broke new ground in political and social history one may single out his study of the government crisis of 1894–95 which led to the forced resignation of Wekerle (a fatal mistake by Franz Joseph) and the study of Deák’s confĳidential talks with Baron Anton Augusz in opening negotiations with the crown in 1864–65. As a constitutional historian Hanák’s views were similar to Szabad’s: both of them, in their interpretation of the April Laws and of the 1867 Settlement fĳirmly wedded to a modern vocabulary and set of concepts. The only diffference between their views was that while Szabad argued, as we have seen, that Deák, by 1861 was already prepared to abandon some of the state rights secured in the April Laws, Hanák credited Deák with the defence of Hungary’s ‘independent statehood’ in his interpretation of Pragmatic Sanction in 1861—as indeed Kossuth also acknowledged at the time. Hanák argued in volume 5 of the Zalai Gyűjtemény in 1976 that Deák shifted his position in his 1865 book on the constitutional question. He compared the statements Deák made in his Second Address in 1861 with passages taken from the book. The historian’s eagerness to demonstrate that Deák had abandoned the principle of Hungary’s right to its own military defence (hadügyi önállóság) induced him to deduce his conclusion from the fact that the statement in the Second Address in 1861 (which actually did not claim such a right) was much longer than a corresponding passage in the book published four years later. This interpretation amounts to a heavy massage of the evidence. The other ‘evidence’, relating to foreign policy and internal government, is based on a misquotation. Hanák accurately quoted from Deák’s Second Address that 14 introduction the ország according to Art. 17 of 1790, demanded the inclusion of Hungarians to the status ministerium only as regards foreign afffairs and so it could not be concluded from this that the internal government of the country depended on that ministry. Hanák then compared this passage to a passage in the book in which Deák repeated that it was only as regards foreign policy that the ország demanded participation in the ministry from which the common government in other respects cannot be concluded. Hanák, however, misquoted this passage by deleting the negative article (i.e. can be concluded). The misquotation was repeated when the same study was republished and was again repeated even in Hanák’s last work on 1867, published posthumously in 2001 (1867—európai térben és időben, p. 162). From my personal knowledge of Péter Hanák for half a century as a man of moral probity I am sure that the misquotation was an involuntary slip; it was his own powerful preconceptions that hindered his ability to see the mistake. I am still perplexed however as to why these two eminent scholars, together with so many other historians they influenced, could be under the spell of the Great Exile to such an extent that they entirely ignored the relevance of the traditional vocabulary which interacted with the new vocabulary and informed Hungary’s relations to the Empire in the April Laws and in the 1867 Settlement. How did they fail to note the distorting efffect of using only the new concepts in the analysis of the April Laws where the principal agents did not adhere to such ideas. They ignored Maitland’s fĳirst rule of history which is to remember that events now far in the past were once in the future.

* * * I am grateful to my readers, Robert Goheen (Ottawa), Martyn Rady (SSEES, UCL) and Angus Walker (SSEES, UCL) for weeding out some of the infelicities of this introduction and for suggesting improvements in my argument. CHAPTER ONE

THE HOLY CROWN OF HUNGARY, VISIBLE AND INVISIBLE1

The reader at this point will certainly ask: how it is possible that a national relic of such great signifĳicance has never been properly examined in order to attain satisfactory conclusions [about its origin]. The answer is as contradictory as unexpected: precisely because such importance was attached to the crown; because it has been treated as the greatest national treasure. Kálmán Benda and Erik Fügedi on the Holy Crown2

The history of political ideas reveals continuities and unexpected revivals. Too frequently it proves premature to pronounce a political idea dead. A well-known example, which demonstrates that major political ideas hardly ever disappear without trace, has been the re-emergence of the natural law theory which had spent years in the doldrums while utilitari- anism dominated political philosophy in Britain and America.3 Ideas whose impact is more limited and confĳined to a single national society could, likewise, unexpectedly revive after their apparent demise. When over forty years ago the present writer, working towards his DPhil in Oxford, took up the doctrine of the Holy Crown of Hungary, he thought that the subject was of purely historical interest, or at least one without any direct relevance to Hungarian politics, present and future. The reason why this assumption looked obvious at the time was not even

1 I am grateful to Professor János Bak (CEU, Budapest) for raising critical questions about the text, to Professor James Burns (UCL) for his point on Hegel’s influence, to Dr Lóránt Czigány (London) for his comments on my use of terms, to Professor R. J. W. Evans (Oxford) for his incisive observations, to Robert Goheen for his suggestions, to Virginia Hewitt (British Museum) for a piece of information, to Dr. Martyn Rady (SSEES, UCL) for detailed criticism and archival references, to Judit Villám (Parliamentary Library, Budapest) for providing a copy of a colligatum she compiled, in 1999, of recent publications on the Holy Crown question. Finally, I should like to thank my wife, Margaret, for her suggestions for improving the grammar and style of the text. In the use of capital letters for ‘Holy Crown’, I follow established convention (the use of lower case would amount to the making of a political point). 2 Kálmán Benda and Erik Fügedi, Tausend Jahre Stephanskrone, Szeged, 1988, translation of A magyar korona regénye, Budapest, 1979 (hereafter: Stephanskrone), p. 20. 3 The revival followed the appearance of John Rawls’s A Theory of Justice, Cambridge, MA, 1971. 16 chapter one primarily because Hungary, as a part of the Soviet bloc, was ruled by communists who rejected and sneered at any political tradition of the old order, which they replaced.4 The reason went deeper: it was generally taken for granted, even by opponents of the Communist regime, that political traditions, like the ideas of the Holy Crown, however important they had been in past centuries, were closely tied to the institution of the monarchy that had irretrievably perished by the end of the Second World War. By 1945 the whole traditional social order that used to maintain the institutions of the kingdom was gone. It is true that even after 1945 some émigré groups of the displaced political élite, having escaped to the West from Nazi or Communist rule, cherished old political traditions including ideas about the Holy Crown.5 In the 1960s a Hungarian scholar, Charles d’Eszlary, published in France a three-volume history of the Hungarian political institutions from the Middle Ages,6 considered largely in terms of the Holy Crown doctrine (the doctrine was a late-nineteenth-century innovation, of which more later). He must have been a ‘last Mohican’. For the world at large, so far as it took cognisance of Hungarian constitutional matters, the doctrine was as dead as the dodo. Yet, the reports of the death of the Holy Crown tradition turned out to be greatly exaggerated. Come 1989, Eastern Europe’s annus mirabilis, Soviet power in the region collapsed and, together with that, Communist rule. Hungary, like a few other former satellites, became a parliamentary democracy. There was no question of restoring either the monarchy or the old social order. And yet the Holy Crown, like that fabled Egyptian bird, the phoenix, miraculously came forth with new life. The revival, as in the past, touched on the visible St Stephen’s crown as well as the invisible crown of ideas. Further, what makes the revival notable is that, as so frequently in the past, the ‘crown question’ stirred up an unusually large amount of political dust.7 Indeed, at one point the Academy of Sciences

4 I am informed that after 1945 the Law Faculty at the University in Budapest had on its noticeboard: ‘No dissertation will be considered on the law of rape [the Red Army had just run over the country] and on the doctrine of the Holy Crown’. 5 Even in Hungary not everybody changed their political beliefs after the War. I recall a meeting with an old fogey in Budapest in 1955 before his arrest, secret trial by the ÁVH and subsequent death in prison, who thought that the Russians would soon leave Hungary when a nádor (palatine) was elected and the monarchy restored after a plebiscite. 6 Histoire des institutions publiques Hongroises, Paris, 1 (1959), 2 (1963), 3 (1965). 7 A perplexing case is Kim Lane Scheppele’s who writes that by moving the crown to parliament (see below) ‘it has become a symbol concentrating the dark passions of Hungarian conservatism, particularly those that move toward fascism’, ‘The Constitutional Basis of Hungarian Conservatism’, in East European Constitutional Review, 9 (Fall 2000), 4, pp. 51–57 (51). the holy crown of hungary, visible and invisible 17 had to intervene to resolve the political conflict generated by the revival of the tradition. Leaving out antecedents, to which I shall in due course return, the millennial celebrations provided the occasion for the revival of a cult with remarkably strong roots. For, in Hungarian political rhetoric and historiography, the second millennium is intimately connected with the fĳirst. St Stephen, who turned Hungary into a Christian kingdom, was crowned at Christmas in AD 1000. In December 1999, after sharp debates between the ruling coalition of the moderate right parties, and the Left, in opposition, parliament passed a bill which commemorated the establishment of the State one thousand years ago and ordered the Crown of St Stephen, otherwise known as the Holy Crown, together with the other coronation regalia, to be transferred from the National Museum to parliament for the millennial year.8 On 1 January 2000, it was reported, the crown was placed inside a glass cabinet and carried under heavy security in an armoured car followed by a motorcade. A guard of honour carried it up the stairs into parliament and then a gun salute was fĳired over the River Danube.9 The regalia were received by the Corporation (testület) of the Holy Crown, created by the Law, consisting of the Republic’s highest offfĳice holders.10 The President of Parliament opened the celebration. Then the President of the Republic signed Law I of 2000 ‘To Commemorate the Establishment of the State by St Stephen and the Holy Crown’.11 The preamble of the Law referred to the Holy Crown as ‘the relic living in the memory of the nation

8 The government bill was passed on 21 December 1999 by a large majority after most of the references to the ‘doctrine’ of the Holy Crown were deleted from the ministerial draft. The bill (T/1816) ‘A Szent István-i államalapítás emlékének megörökitéséről és a Szent Koronáról’ was submitted by Ibolya Dávid, Minister of Justice, in November 1999 and passed by the House’s Constitutional and Judicial Committee on 1 December (T/1816/32). The bill’s preamble was then substantially shortened by the House before it passed as Law I 2000, Magyar Közlöny, 1 January 2000, pp. 1–2. The Centre-Right government gave way after the forceful intervention by the President of the Hungarian Academy of Sciences whose team of historians sanitized the text of the preamble: see László Szále and László N. Sándor, ‘Tudomány és közélet’, Magyar Tudomány, 2000/6, pp. 736–41 (interview with President Ferenc Glatz). Also, the Opposition, before its revision, threatened to take the bill to the Constitutional Court. Still, the political Left, the Free Democrats and many Socialist deputies either voted against the revised bill or abstained and stayed away from the subsequent celebrations. 9 The Times, 3 January 2000. 10 Created by Section 5 of the Law. Its members are the President of the Republic, the Minister President, the President of Parliament, the President of the Constitutional Court and the President of the Hungarian Academy of Sciences. 11 Magyar Közlöny, 1 January 2000, pp. 1–3. 18 chapter one and Hungarian constitutional tradition that embodies the continuity and independence of the Hungarian State’. Section 2 of the Law ordered the transference of the Holy Crown to parliament. In his Address, the President said that the crown had for centuries signifĳied the supreme power shared between the king and the nation as the crown’s members.12 This was followed by the Prime Minister’s speech with the following operative passage: The head of the Christian Church sent a crown to Stephen to make him anointed king; the king who created nation and patria; the country that through struggles, strife and sacrifĳiced lives became a part of Christian Europe. This crown created the possibility for Hungary’s entry into Europe.13 Clearly, independent statehood and entry into Europe are the two mantra phrases today in the rhetoric associated with the Holy Crown. It is too early to speculate on how far these solemn flourishes about the crown will go beyond the millennial celebrations. There is plenty of opposition particularly in the Budapest left-wing intelligentsia to the new political rhetoric about the crown. Yet what has already happened clearly demonstrates that for many Hungarians the crown tradition is still alive and well.14 When we examine Hungarian political rhetoric concerning the Holy Crown, the fĳirst striking fact to observe is the central importance of the visible, material diadem in the generation of the crown tradition. We have to discuss, therefore, however cursorily, the provenance and the political role of St Stephen’s visible crown before turning to the invisible corona, a multi-vocal term, and its uses in the past and the present.

The Crown of St Stephen and its Provenance

It is doubtful whether there have ever been bestowed upon regalia, or indeed any object,15 in a European country the cult and such an enduring

12 This is the gist of the doctrine of the Holy Crown, deleted from the bill after debate but afffĳirmed by the President of the Republic.Magyar Nemzet, 3 January 2000, pp. 1 and 5. 13 Ibid., p. 5. 14 This is inadvertently recognized even by the opponents of its present revival when they criticize the government for taking up the crown tradition in order to do better in the opinion polls. 15 The Holy Dexter of the founder king (see note 52 below) has, from the eleventh century, been venerated as a relic to which, however, efffĳicacy has not been attributed. Nor has its cult developed an ‘invisible’ dimension. The Stone of Scone (Destiny) on which Scottish kings were crowned has had a longer history than the Hungarian diadem but it did not the holy crown of hungary, visible and invisible 19 political role that have been accorded to the Crown of St Stephen.16 For centuries the diadem itself was not even clearly distinguished from the ideas associated with the crown. Sanctity, ‘inamissibility’ and mystery were attributed to the diadem in the Middle Ages which then retained a central place in modern constitutional politics. The provenance of the diadem is uncertain. Moreover, the expansion of research over the years has only increased rather than reduced the uncertainties about the origin of the crown’s various parts. The vast literature on the subject reached consensus only on the two points that (i) the crown which has borne his name for centuries, never embellished St Stephen’s head, and that (ii) the crown was assembled from parts with diffferent provenance.17 The lower crown, the so-called corona graeca, is a wide circular golden rim with enamels and stones to which pinnae (fĳinials) are attached. This part of the crown might have been a gift crown, which was subsequently rearranged, or some other gift from Michael VII, Byzantine Emperor (1071–1078) to King Géza (1074–1077), or more probably his wife.18 Opinion diverges even more widely on the nature of the upper crown, the so-called corona latina. This consists of two intersecting bands with eight enamels, each portraying an apostle, and, where they overlap, the ninth and largest enamel, which portrays the Pantocrator, crudely mutilated by the hole to hold the surmounting cross, which later went

become a repository of ideas and rights. The Black Stone of the Kaaba in Mecca is purely religious. On the other hand, the Tikhvin Icon of the Mother of God, which has recently been returned to Russia, and which has been ‘revered for centuries as a defender of Russia from foreign invaders’, has had as chequered a history as the Crown of St Stephen and is believed to be inamissible. See The Times, 24 June 2004. 16 Curiously, this point has been neglected by Hungarian scholars. But see Zoltán Tóth, A Hartvik-legenda kritikájához, Budapest, 1942, p. 97. 17 Neither point is surprising. Crowns named after founder kings are frequently from later periods and may be assembled from parts with diffferent origin. Concerning the large literature see Iván Bertényi, A magyar Szent Korona, Magyarország címere és zászlaja (hereafter: Szent Korona), fourth ed., Budapest, 1996. A bewildering diversity of conflicting hypotheses and conclusions emerge from the author’s summary of recent research, pp. 27–56. Éva Kovács, leading art historian, assessed in two chapters in her Species modus ordo (Budapest, 1998) the research into the Hungarian regalia since the Second World War, pp. 9–14 and 386–400; Éva Kovács and Zsuzsa Lovag, The Hungarian Crown and Other Regalia, 2nd ed., Budapest, 1980, offfer the best photos, independent views and a short summary of recent research. Three important earlier studies from the post-war literature: Albert Boeckler, ‘Die “Stephanskrone”’, in P. E. Schramm, Herrschaftszeichen und Staatssymbolik III, Stuttgart, 1956; P. J. Kelleher, The Holy Crown of Hungary, Rome, 1951 (hereafter: Holy Crown); Josef Deér, Die heilige Krone Ungarns, Vienna, 1966 (hereafter, Die heilige). 18 Most experts, following Magda Bárány-Oberschall and Josef Deér’s studies, assume the original gift to have been a female crown. 20 chapter one crooked.19 Theories on the original function of the upper intersecting bands are many. Also, some scholars date the bands from the time of St Stephen,20 others from the twelfth century. On the date of the crown’s assembly in its present form, disregarding (with respect) some extravagant ideas about the whole crown being assembled in the year 1000, or even centuries before, opinion, once more, varies between the late eleventh and the fĳifteenth centuries, the late twelfth century being the favourite.21 Nor is there, so far as one can see, consensus as regards the type of the assembled crown; is it a stephanos, a stemma or kamelaukion?22 The assembled diadem, as a whole, was up to 1790 held to be St Stephen’s. At the coronation lunch of Emperor Leopold II as King of Hungary, scholars had a chance to discover the Greek inscriptions on the lower crown. But no proper examination of the crown was allowed either in 1790 or after.23 Thus, in the nineteenth century, the corona latina, the upper part of the jewel, was still held to be St Stephen’s. Indeed it was regarded as tangible proof of the veracity of Hartvic’s account of the crown’s origin. In his Vita, Life of St Stephen,24 Bishop Hartvic, a century after the event, gave a colourful account of Bishop Ascherik’s journey to Rome where he was sent by Stephen in the fourth year of his rule. The pope, acknowledging Stephen’s work in establishing the church in

19 Sign of wear and tear or that of a botched job because of haste in the assembly of the diadem during a succession crisis? 20 Kelleher suggested that the bands, with eight apostles only, might have been part of a bible cover or some other sacred object that survived from the treasury of the fĳirst king. The richly embroidered coronation robe, originally a chasuble, is, however, undoubtedly from St Stephen’s court. The provenance of the other coronation regalia is diverse. 21 For a summary of the diffferent positions see Bertényi, Szent Korona, pp. 56–69, who concludes on the point that ‘the secret of the Holy Crown is still unsolved’. Many historians date the assembly to the reign of Béla III (1173–1196). Deér argued for 1270 when, on the death of Béla IV, his daughter Anna escaped with the regalia to Prague and Stephen V hastily assembled a new crown for his inauguration: Deér, Die heilige, pp. 256f. György Györfffy has recently argued (on rather thin evidence) that the assembly took place under Coloman: István király és műve, Budapest, 2000, pp. 356–61. 22 See Szabolcs Vajay, ‘A Szent Korona kamelaukion jellege’ in Gyula Borbándi (ed.), Nyugati magyar tanulmányírók antológiája, München 1987, pp. 310–21. The reader may be spared from explication of these terms. 23 Kelleher summed up all the physical examinations of the Holy Crown before 1945: ‘Those scholars who published the results of the brief investigations conducted under offfĳi- cial auspices on the rare occasions when the Holy Crown was available for study, did so under pressure of the centuries-old tradition of sanctity, the aura of political signifĳicance surrounding the relic and a heritage of opinions, ecclesiastical and nationalistic, which engulfed the object.’ Holy Crown, p. 17. 24 Scriptores rerum Hungaricarum, ed. E. Szentpétery, 2 vols, Budapest 1937–38 (hereafter: SRH), second ed. (reprint with addenda) by K. Szovák and L. Veszprémy, Budapest, 1999, 2, pp. 401–40. the holy crown of hungary, visible and invisible 21

Hungary, granted him benediction, crown and apostolic cross.25 The crown donation by the ‘pope’ (Hartvic did not know Sylvester II by name), as described in this extremely popular work, which attained papal appro- bation,26 was seen for centuries as an act, which had established indissolu- ble ties between the Holy See and the kingdom, which underlined its independence from the German and the Byzantine emperors. In the nineteenth century, the crown donation thesis gave powerful support to the legal tenet that the Hungarian state had never been subordinated to any secular power; from its inception it possessed sovereignty. The Sylvester crown donation did not look implausible to historians in the nineteenth century because of their views on the relationship between Pope Sylvester II (999–1003) and Emperor Otto III (983–1002). The young emperor who pursued an unrealistic dream, the renovatio imperii Romanorum, was not an equal match to the pope, his former teacher Gerbert, a highly educated skilful diplomat.27 He must have been the crown’s donor, so the argument continued, rather than Otto. The traditional mould into which the relationship between the two heads of Christianity had been pressed was broken by P. E. Schramm’s seminal work published in 1929.28 Far from being an inefffective dreamer, Otto III re-emerged as a powerful designer of an empire based on a universalistic ideal. Schramm reconstructed Otto’s policy by the new titles his chancery introduced, particularly that of servus apostolorum, through which the emperor claimed a closer connection with St Peter than the pope.29 Further, Otto’s renovatio strengthened the emperor’s position as defensor ecclesiae. His mission was to reduce the barbarians to obedience and convert them to Christianity under his leadership, especially in the East. Schramm asked for a reappraisal of Otto’s rule in the establishment of the Polish and Hungarian kingdoms.30 One of the several implications of his work was that the donor of Stephen’s crown could not have been the pope alone. Schramm broke an old mould without fĳirmly establishing a new one. Among those who carried further his inquiry was A. Brackmann who, in

25 Ibid., pp. 412–14. 26 C. A. Macartney, The Medieval Hungarian Historians: A Critical and Analytical Guide (hereafter, The Medieval), Cambridge, 1953, p. 165. 27 German historians were critical of Otto III for abandoning his predecessors’ Sicherungpolitik as regards German interests for fantasy. 28 P. E. Schramm, Kaiser, Rom und Renovatio, 2 vols, Leipzig, 1929 (hereafter: Kaiser). 29 Schramm, Kaiser, 2, pp. 65–67. 30 Ibid., 1, p. 153; 2, p. 14. 22 chapter one his studies, reinterpreted the Polish and the Hungarian material. For him, Thietmar, the Bishop of Merseburg’s almost contemporary reliable chronicle, offfered decisive evidence in clearly stating that Stephen had received a crown ‘through the favour and encouragement of the emperor’.31 Brackmann concluded that through ‘staatliche Umgestaltung’ Poland and Hungary were incorporated into the Empire by Otto III and that Boleslav and Stephen became imperial lieutenants, positions from which, however, both kingdoms soon afterwards escaped.32 Hungarian historians were put on the spot and a mighty row ensued. The debate took place against the background of the rising, expansionist Third Reich. A Hungarian historian, Zoltán Tóth (by no means a sympa- thizer with the new Germany), had the temerity to go along with Schramm and even Brackmann’s fĳindings. In a substantial study,33 prepared in 1937, he eliminated Hartvic’s Vita, the main support for the Sylvester crown donation thesis, written around ad 1100, from the proper sources on the establishment of the Hungarian kingdom. Composed a whole century after the event, Hartvic’s Vita reflected the papal claims to supremacy in the investiture contest between the two heads of Christianity. Pope Sylvester II and Emperor Otto III, however, closely co-operated at the end of the tenth century and the Emperor’s will was probably the decisive factor in granting the crown to Stephen.34 Alluding to the political conditions of Hitler’s Central Europe, Tóth, aware of walking on to ‘most dangerous terrain’,35 claimed, nevertheless, that he was guided by what he believed to be the truth.

31 See passage in note 45 below. 32 See especially his Kaiser Otto III und die staatliche Umgestaltung Polens und Ungarns, Berlin, 1939, esp. pp. 25–27. 33 Zoltán Tóth, A Hartvik-legenda kritikájához (A szt. korona eredetkérdése), Budapest, 1942 (hereafter, Hartvik-legenda), 130 pp. This work written in 1937 for the Szent István Emlékkönyv (1938) was, because of its unacceptable views, rejected by the editors and was published later separately by the author. The reliability of Hartvic’s Life was questioned by Hungarian historians, notably by János Karácsonyi, (Századok, 1892, p. 136). In the 1930s, however, the doubts (until Tóth’s work) disappeared. On Tóth, see Bertényi, Szent Korona, pp. 24–25. 34 Tóth emphasized this even after his work was attacked by others, ‘Történetkutatásunk mai állása’ körül. A szent korona eredetkérdéséhez, Budapest 1943 (hereafter, Történetkutatásunk), p. 36. 35 Ibid., p. 5. Indeed it was ‘dangerous terrain’ during the Second World War. Brackmann, the leading authority of Ostforschung carried out a programme that served his political masters. He took care, for instance, that his study on the ‘Umgestaltung’ of Poland and Hungary (see note 32 above) should get to the desk of Reichsführer SS Himmler. Michael Burleigh describes the role played by Brackmann in the Third Reich in his Germany Turns Eastwards, Cambridge, 1988, esp. p. 149. the holy crown of hungary, visible and invisible 23

József Deér led the attack against Tóth’s iconoclastic views. In a masterly argued long piece36 and in a Századok article Deér censured and taunted Tóth for blindly following (sometimes even misunderstanding) his German models.37 His primary target was the new outlook established by Schramm, Brackmann and the other German historians on Otto III.38 Their writings, Deér explained, were politically inspired; the universalistic imperial idea cloaked, as indeed it had even before Otto III, German hegemonic aspirations, the Reich behind the imperium. Once more the past was tied to the present: The 1933 turning point did not only create the Third Reich but in close connection with this a new imperial idea.39 Deér went along with Schramm’s German critics, who questioned whether Otto III’s new titles, including the servus apostolorum, involved new claims.40 As to Brackmann’s Umgestaltung, that the Hungarian kingdom was established under the protection of Otto III and that Stephen became a ‘patrician’ of the empire, the thesis lacked proper evidence. It disregarded the fact that the servus apostolorum title had appeared in the Pentapolis donation letter in January 1001, only after the Hungarian coronation had taken place.41 At any rate, there was no evidence that the new title was ever used in connection either with Poland or Hungary. Hungarian historians had already questioned the Vita’s reliability as a historical source.42 There were, however, other sources, argued Deér, which supported the Sylvester crown donation, from which he then inferred his concluding point that Stephen as rex possessed sovereignty as an ‘equal member in the community of European states’.43 Deér analysed the two

36 József Deér, ‘A magyar királyság megalakulása’, in A Magyar Történettudományi Intézet évkönyve, Budapest, 1942, (hereafter, ‘A m. királyság’), pp. 1–88. This work was also published in German and Italian. 37 Deér, ‘A m. királyság’, pp. 3n.2, 26n.3, 41n.1, 65n.7; ‘III. Ottó császár és Magyarország az újabb történetírásban’ (hereafter: ‘III. Ottó császár’), Századok, 78, 1944, pp. 1–35 (26–27). Tóth called Deér’s longer study a ‘pettifogger’s masterpiece which glosses over the crucial question all along’, Történetkutatásunk, p. 21; Deér in his rejoinder protested against Tóth’s personal attack which was grist to the mill of Romanian and Slovak historians whose aim was to damage the reputation of Hungarian historians, ‘III. Ottó császár’, p. 14n.39. 38 It is telling that Deér earlier was still sympathetic to the revision carried out by German historians on Otto III and the Pope’s relationship. See his Pogány magyarság keresztény magyarság, Budapest, 1938, (hereafter, Pogány m.), pp. 94–99. 39 Deér, ‘III. Ottó császár’, pp. 8–9. 40 Deér, ‘A m. királyság’, pp. 56 and 60–61; idem, ‘III. Ottó császár’, p. 13. 41 Deér, ‘A m. királyság’, pp. 66–67. 42 The point was not backed by evidence, ibid., p. 3n.2. 43 A rather anachronistic assertion, ibid., p. 88. 24 chapter one other Lives of Stephen (in fact, Hartvic’s sources) written in the late eleventh century.44 As neither of them contained anything on the donor of Stephen’s crown, the historian had to apply heavy massage in arguing his case. Also, he had to construe an interpretation of a near contemporary source, generally reputed to be reliable, which his opponents exploited to the full and to which we have already referred. The Chronicle of Thietmar, Bishop of Merseburg (c. 1015), contains the following passage: Through the favour and encouragement [gratia et hortatu] of the Emperor [Otto III], Waic [Stephen] the duke of Bavaria Henry’s son-in-law, created bishoprics in his regnum, received crown and benediction.45 Thietmar’s text was terse and obscure enough to be construed in ways which can lead to opposite conclusions as regards the donor of the crown; the exercise is entirely conjectural. Brackmann and Tóth could (and did) point out that the pope was not even mentioned by Thietmar and built on the phrase gratia et hortatu. Against this position Deér could argue that corona in the text appeared together with benedictio which only the pope could grant.46 In sum, it is more than probable that a crown was used at Stephen’s inauguration as rex in 1000 AD (a crown that, however, did not survive).47 It is less certain whether Stephen received a crown from abroad in a literal

44 The Legenda minor S. Stephani regis (SRH, 2, pp. 393f) and the Legenda maior (ibid., pp. 377f) were both written before or shortly after Stephen had been canonized in 1083 (see C. A. Macartney, The Medieval, pp. 161–64). The Leg. minor does not even mention Stephen’s crown, the Leg. major refers to his diadema regalis without any other particulars (SRH, 2, p. 384). 45 Imperatoris (autem predicti) gratia et hortatu gener Heinrici, ducis Bawariorum, Waic, in regno suimet episcopales cathedras faciens, coronam et benedictionem accepit. Die Chronik des Bischofs Thietmar von Merseburg und ihre Korveier Überarbeitung, ed. Robert Holtzmann, Berlin, 1955, MGH Scriptores, Nova Ser., vol. 9, p. 198. 46 Deér, ‘A m. királyság’, pp. 26f and 69–74. 47 See József Gerics’s study on the use of the ‘Egbert Ordo’ in Hungary in his ‘Az úgyn- evezett Egbert (Dunstan)-ordo alkalmazásáról a XI. századi Magyarországon’, in György Székely (ed.), Eszmetörténeti tanulmányok a magyar középkorból, Budapest, 1984, pp. 243– 54, and Benda and Fügedi, Stephanskrone, pp. 15–17. Pope Gregory VII in a letter to King Salamon (28 October 1074) recalled that a lance and a crown, the insignia of the regnum, were (after the Battle of Ménfő in 1044) sent to the tomb of St. Peter whence his dignitas originated. There is no agreement among historians whether these were Stephen’s regalia or not. The pope in another letter (13 March 1075) sent to Géza I reminded the king that Hungary, like other kingdoms, was subordinated only to the universal Roman Church rather than to other kings, Vilmos Fraknói, Magyarország egyházi és politikai összekötteté- sei a római szent-székkel), 3 vols, Budapest, 1901–03 (hereafter: Magyarország), pp. 23, 24, and 360. Gregory VII’s claims of spiritual and political papal supremacy were not yet made by popes at the beginning of the eleventh century. the holy crown of hungary, visible and invisible 25 rather than only in a metaphorical sense. If, however, a diadem was actually sent to Hungary, this must have been with the complete agreement of the two heads of Christianity whose support Stephen undoubtedly enjoyed. The vexed question whether the pope or the emperor was the donor of the putative crown may not be (historically) the right one to ask.48 The question acquired importance because the driving force of the debate during the Second World War came from politics. The trouble is, however, that politics, in an insidious, or perhaps fruitful, way will always intrude on the historian’s perspective. Today is no exception. Can the historian ‘disremember’, so to say, the uncanny ‘parallels’ between the Ottos’ imperial plans and the EU’s policy of eastward expansion? The revival of the Roman Empire in the West under Otto I by his coronation as emperor in 962 AD led to an expansion of Christianity in the East. Among those present in Quedlinburg at Easter 973 to pay homage to the emperor we fĳind leaders and people of high rank from the new territories of Bohemia, Poland, Hungary and also Kiev and Bulgaria.49 Yet only some of those countries made the ‘transition’, to use a modernism (Brackmann’s Umgestaltung). Bohemia soon became an integral part of the empire and then, in the year 1000 AD, Otto III went to Gnesen and Stephen was said to have received a crown: Poland and Hungary, too, were in some way connected with the imperial plan50 but not the other countries. As the attempt at integration into a universal empire turned out to be largely a fĳiasco, one should not perhaps make too much of the parallel that the countries that ‘made’ the transition at the end of the fĳirst millennium happen roughly to coincide in the second millennium with those of the so- called Visegrád group: the front-line applicants to join the European Union.

The Cult of St Stephen’s Crown

Hungary emerged from the transformation as a recognized independent kingdom. From a half nomadic pagan society, it became a Christian

48 Whoever sent the (putative) crown, Hungarian historians rightly point out the complete lack of evidence that Stephen accepted imperial overlordship. Indeed he stressed his independence on every occasion. See, for example, Pál Engel, The Realm of St Stephen, London and New York, 2001 (hereafter, The Realm), p. 28. 49 Magyarország története, ed. Pál Zsigmond Pach, 9 vols, Budapest, 1976–85 (hereafter, MT), 1, p. 729. 50 Poland and Hungary were compared in the light of recent literature by János M. Bak in ‘Some recent thought of historians about Central Europe in 1000 A.D.’ in Hortus Artium Medievalium, 6, 2000, pp. 65–71. 26 chapter one regnum with a settled rural population. This momentous change was rightly associated with the country’s fĳirst king, Stephen (997–1038). He established the Church by creating bishoprics, ruled as dominus over his regnum, organized the system of royal counties headed by ispáns (comites) and set up the high offfĳices of his court. Although the two law books bearing his name may have been compiled some years after his death, Stephen was venerated for centuries as the lawgiver. Property, privileges, rights (liberties) and obligations were recognized throughout the Middle Ages as deriving from the auctoritas of the fĳirst monarch.51 With papal permission he was canonized in 108352 under King Ladislas I, who likewise was canonized in 1192. The canonization led within the ruling dynasty (the so-called ‘St Stephen’s clan’) to the cult of sancti progenitores nostri in the thirteenth century. The szentkirályok (saintly kings) label, as József Deér argued, combined Christian and pagan charismata and was frequently applied to the whole dynasty rather than only to its canonized members.53 The saintly clan was believed to have been endowed with supernatural powers. Sacral rulership as an ascribed quality of the dynasty is a well-known feature of kingship in early medieval Europe.54 But how the insignia of the rulers became sacred is only a matter of conjecture.

51 On the founder’s role in Europe and Hungary see Ferenc Eckhart, ‘Jog és alkotmány- történet’, in Bálint Hóman (ed.), A magyar történetírás új útjai, Budapest, 1931 (hereafter: ‘Jog és alk. tört.’), pp. 269–320 (p. 285); Péter Váczy, A szimbolikus államszemlélet kora Magyarországon, Budapest, 1932 (hereafter, Szimbolikus), pp. 37–38, 54–55. 52 King Stephen I was canonized together with Emeric, his predeceased son and three martyrs of the Church: Bishop Gerard (Emeric’s tutor, later ordinarius at Csanád) and two hermits, Zoerard and Benedict. Stephen’s body was disinterred and was found intact. The Holy Dexter (only the hand has survived) has ever since been venerated as a relic of the ‘saintly king’ (szentkirály). It is kept today in the Budapest Bazilika church in a glass cage and taken around the town in a splendid procession on St Stephen Day, 20 August. 53 See Deér, Pogány m., ch. 4; Emma Bartoniek, ‘A magyar királyválasztási jog a közép- korban’, Századok, 70, 1936 (hereafter, ‘A m. királyválasztás’), p. 365 and n. 2; Gyula Kristó (ed.), Korai magyar történeti lexikon, Budapest, 1994, pp. 632–33 incl. literature; Gábor Klaniczay, Holy Rulers and Blessed Princesses: Dynastic Cults in Medieval Central Europe, Cambridge, 2002, esp. chs 3 and 4. 54 Janet Nelson notes: ‘English seems to be the only language which not only distinguishes sacral from sacred, but (unlike Greek, Latin, French or German) also has two separate words for the substantive “saint” and the adjective “holy” (or “sacred”). Sacrality involves the transmission of otherworldly powers into this world, crosscutting the line between nature and supernature. Sacral rulership, therefore, transcends the distinction between clerical and secular (in societies where such a distinction is made at all). It con- stitutes an ascribed not an achieved status, for its bearer possesses magical powers by defĳi- nition. Nothing has to be proved or approved: sacrality goes with the job, is carried in the blood. There was nothing here to attract, and much to repel, the Christian churchman attempting to construct a model of royal sanctity.’ Janet L. Nelson, Politics and Ritual in Early Medieval Europe, London, 1986 (hereafter, Politics and Ritual), pp. 71–72. the holy crown of hungary, visible and invisible 27

Stephen’s inauguration followed the general European custom of instating people into offfĳice with objects which testifĳied to the authority behind the post.55 From the teaching of the Apostle that all legitimate power derived from God’s authority56 it followed that the emblem, which conferred offfĳicium and dignitas, was presented to the appointed by the Church. The investiture took place at the altar and was rather similar to the consecration of a bishop; grace was transferred to the king from God by virtue of which he became Christ’s deputy on Earth. The aureole attached to the incumbent szentkirály and the offfĳice was then gradually transferred to the insignia associated with the whole clan. The peculiarity of the Holy Crown tradition in Hungary is that although the holiness of the visible crown (as we shall presently see) appeared later, the tradition went deeper and lasted much longer than it did elsewhere in Europe. The crown had already acquired prominence in the West among the insignia (orb, sceptre, sword, etc.) in transferring offfĳicium and dignitas by the time kingship was established in Hungary. There, too, the crown rather than any other regalia stood for rex,57 although at Stephen and his immediate successors’ inauguration acclamatio and anointment were possibly still more important than coronation.58 It is more probable that the regalia used at Stephen’s inauguration served his successors.59 The authenticity of royal power was conserved by being linked to the founder.60 The claim that the diadem used at coronations came from the founder of the kingdom, the szentkirály (saintly king), strengthened the sanctity of his successors. The crown itself did not

55 On the sources of royal coronation in Hungary see János M. Bak, Königtum und Stände in Ungarn im 14–16. Jahrhundert, Wiesbaden, 1973 (hereafter: Königtum), Anhang II, pp. 165–90; Benda-Fügedi, Stephanskrone, pp. 41–48. 56 Epistle to the Romans, XIII.1, and see Emma Bartoniek, ‘A királyi hatalom eredetéről’, Századok, 70, 1936, pp. 480–96. 57 According to the Chronicle, Duke Béla, summoned to Várkun by King Andrew I after 1057 to test the loyalty of his brother, had to choose between the ‘sword’ (ducatus) and the ‘crown’ (si vis regnum, accipe coronam, si ducatum, accipe gladium), SRH, 1, p. 355. 58 The Legenda maior distinguishes three elements in Stephen’s inauguration: acclamatio, uncio and coronatio in that order, SRH, 2, p. 384. The seating of the king in the throne of the founder king was also a part of the investiture held in the Basilica at Székesfehérvár. On European practices see János M. Bak (ed.), Coronations, Medieval and Early Modern Monarchic Ritual, Berkeley, CA, and Oxford, 1990. The editor pointed out that research in the previous decades ‘raised the study of royal ritual from the marginal and illustrative to the paradigmatic’, p. 6. 59 The Chronicle recalls that Peter’s (second) inauguration in 1044 took place sacris insignibus sancti regis Stephani, SRH, 1, p. 333. 60 Andrew I, 1046–1060 (who had the hard job of claiming continuity with Stephen) imitated the founder even by the coins he minted and the seals of his summons: Deér, Pogány m., p. 115. 28 chapter one belong to the incumbent but to the ruling clan, the whole dynasty.61 Yet the term sacra corona appeared for the fĳirst time in a royal charter only in 1256, long after the phrase had gone out of use in other European countries.62 The ‘holiness’ of the crown indicates that it was not merely a symbol, for that presupposes a distinction between the representation and what is being represented. But the clear distinction between the jewel and what it stood for developed only in more recent times.63 The ‘strength’ or ‘mystery’ attributed to the Holy Crown, the object itself, reveals the lack of distinction.64 This is the critical point: to wit, until modern times the visible crown did not symbolize some abstract idea, like the ‘state’, as is frequently claimed; the material object itself was believed to possess efffĳicacy. Andrew III (1290–1301), the last of the native dynasty, was the fĳirst king who claimed in a royal charter in 1292 that he was ‘wearing’ St Stephen’s Crown.65 The king must have referred to the crown that has survived unless all experts in the dating of its assembly are mistaken.66 The growing political importance of the crown from the second half of the twelfth century is indicated by references to its custody.67 Possession of St Stephen’s Crown became vital in the struggle for the throne between rivals: on the fĳirst of many future occasions, in 1163, the crown was stolen.68 In 1301 a

61 St Stephen’s successors even from 1046, when Andrew I replaced Peter, were not the descendants of the fĳirst king but his uncle, Michael. 62 Ferenc Eckhart, A szentkorona-eszme története, Budapest, 1941 (hereafter: Szentkorona), p. 42; Benda and Fügedi, Stephanskrone, pp. 26–31; Tamás Katona (ed.), A korona kilenc évszázada, Budapest, 1979 (hereafter: Korona), pp. 48, 53–55. 63 For foreign analogies see Ernst H. Kantorowicz, The King’s Two Bodies, Princeton, NJ, 1957 (hereafter: The King’s), pp. 338–41. 64 Although references to robur and mysterium appeared fĳirst time in 1440: see below. 65 Tóth, Hartvik-legenda, p. 126; Benda-Fügedi, Stephanskrone, p. 29. Strictly speaking, kings did not ‘wear’ St Stephen’s crown, which was used only at their inauguration and not otherwise. Nor is there evidence that it was worn at coronamenta. The kings appeared in images wearing either a simple circlet or a lilied crown: Deér, ‘A m. királyság’, pp. 17–18. Benda and Fügedi, Stephanskrone, pp. 55–56. 66 The fĳirst description of St Stephen’s crown is, however, available only from 1440 in the mortgage-deed by which Elisabeth, widow of King Albert, pawned the crown to Frederick III for 2500 florins. Emma Bartoniek describes the political background in her A magyar királykoronázások története, Budapest [1939] (hereafter: A m. királykoronázások), pp. 64–65. 67 The custody of the crown was a politically most sensitive job. Under the Árpáds the custos of the Basilica at Székesfehérvár, the centre of St Stephen’s cult, was the keeper. From the fourteenth century the crown was kept by the king in the safe castle of Visegrád, later in Buda Castle. From 1464 onwards the diet introduced measures for the protection of the Holy Crown which eventually led to the system that has survived into the twentieth century: the two Keepers of the Holy Crown elected by the diet. Bertényi, Szent Korona, pp. 62 and 78f; Benda and Fügedi, Stephanskrone, pp. 53–55. 68 An incident in 1163: see Bertényi, Szent Korona, pp. 60–62. the holy crown of hungary, visible and invisible 29 new chapter began in the history of the Holy Crown which, with the extinction of the native szentkirályok clan in the male line, brought to life its peculiar Hungarian features. The cognate branches generated plenty of foreign claimants69 and from this time, and for well over two centuries, succession crises became the norm. Now coronation with St Stephen’s Crown became constitutive in legitimizing the position of the incumbent. Charles Robert, the Angevin claimant to the throne, was crowned by his party in 1301 and once again in 1309 with ‘substitute’ crowns blessed by the pope. Yet he could settle in offfĳice only after he had secured the possession of the Holy Crown and was inaugurated for the third time on 20 August 1310 cum corona sancti Stephani Regis.70 King Matthias, who acceded to the throne in January 1458, in order to consolidate his position, was made to pay through the nose by Emperor Frederick III, to whom he was also forced to make political concessions, in order to recover from him the Holy Crown with which Matthias was crowned in March 1464.71 Thus, in late medieval Hungary, the liturgy of the coronation with the Holy Crown acquired new, fundamental signifĳicance, even though the king’s consecration had elsewhere become (as Archbishop Thomas Cranmer observed) ‘but a ceremony’, having ‘its ends and utility yet neither direct force nor necessity’.72 In most of Europe but not in Hungary, then, liturgy was gradually replaced by the dynasty-bound divine right.73 In fourteenth century Hungary, instead, the belief evolved that the crown had heavenly origin: ab angelo privaretur, and as such was inamissible, not liable to be lost.74 Cardinal Gentilis di Montefĳiori, papal leg- ate plenipotentiary threw up his hands in despair in 1309 because the Hungarians treated St Stephen’s Crown, the visible crown, with so much veneration, attributing to it such authority quasi in eo sit ius regium

69 Vilmos Fraknói, A magyar királyválasztások története, Budapest, 1921, p. 25. 70 SRH, 1, p. 486; Bak, Königtum, pp. 13–22 (the full story); Benda-Fügedi, Stephanskrone, pp. 33–41. 71 Benda-Fügedi, Stephanskrone, pp. 77–89; Engel, The Realm, pp. 299–300. 72 Quoted by Nelson, Politics and Ritual, p. 283. The high degree of institutionalized government turned royal succession in Western Europe ‘automatic’. When George VI suddenly died in London in 1952 Princess Elizabeth happened to be on safari in Kenya on a treetop. As a courtier old hand observed: ‘Elizabeth had climbed up a tree as Princess and climbed down as Queen Elizabeth II’. 73 Kantorowicz, The King’s, pp. 317–18. and 328–30. 74 In 1305 during Otto’s travel to Hungary to be crowned king, the Holy Crown fell out of its case on to a busy road, yet only his men found it next day (others could not see it) which according to the Chronicum Pictum Quid est, quod a nullo inventa, sed ab ipsis, qui portabant, nisi quod ne Pannonia data sibi corona ab angelo privaretur. SRH, 1, p. 484. 30 chapter one constitutum.75 That just about summed up the position. There was, nevertheless, in 1440 a reckless attempt to undermine the traditional belief. The diet elected Vladislav I king, but St Stephen’s crown was abroad in the hands of the rival party. The king’s supporters decided to use as a substitute for the coronation the relic crown taken from St Stephen’s sarcopha- gus at Székesfehérvár. The diet declared that ‘the coronation is always dependent on the will of the people (regnicolae) and that the efffĳicacia et virtus corone rests on their approval’. Should it be impossible to retrieve the old crown, its mysterium et robur would be transferred to the new crown.76 The innovation, bordering on sacrilege, ended in well-deserved failure. Vladislav I was dead before the Holy Crown had been recovered and none of his donation letters were recognized in court.77 The mystery of St Stephen’s Crown remained unimpaired. Visitors from the West were mystifĳied about the offfĳice attributed to a jewel. The Italian Bonfĳini, King Matthias’s court historian, writing in 1495 (and repeated by others even in the late seventeenth century), preserved Mihály Guti Országh, the palatine’s injunction that ‘even an ox, once you see it embellished with the Holy Crown, must be honoured with respect and treated as inviolate saintly king’.78 The palatine could not have quite meant it, otherwise we would not be able to explain that in the anarchic political conditions that followed the disaster at Mohács in 1526 the ország elected, at two diets within a year, János Zápolya and Ferdinand I Habsburg. Both kings’

75 ‘cui multum reverentie atque auctoritatis ex dicti regni incolarum opinione defertur, quasi in eo sit ius regium constitutum.’ Letter to the pope, 29(?) June 1309, Buda in Acta legationis Gentilis, Monumenta Vaticana hist. Regni Hung. illust. Ser. I, 1887–91, vol. 2, pp. lxx, lxxx–lxxxi, 353; Bartoniek, ‘Corona és regnum’ (hereafter: ‘Corona’), Századok, 68, 1934, p. 321. 76 Martinus Georgius Kovachich, Vestigia comitiorium apud Hungaros, Buda, 1790, p. 240. The passages were quoted by Eckhart, Szentkorona, pp. 96–97; Bartoniek, ‘Corona’, p. 325. 77 Werbőczy, in withholding recognition to Vladislav’s charters, observed: ‘qui non vera, sacraque regni hujus corona, sed reliquiarum capitis S. Stephani regis ornamento insignitus fuerat.’ István Werbőczy, Tripartitum opus juris consuetudinarii inclyti regni Hungariae, editio princeps: Syngrenius (hereafter: Tripartitum), Vienna 1517, repr. Márkus edn. of Corpus Juris Hungarici, Budapest, 1897 (hereafter: CJH), Pt. II, Tit. 14, Section 34. See, also, Péter Révay’s points on this question, Keeper of the Holy Crown and author of the fĳirst history of the jewel from 1613, in Katona,Korona , pp. 331–32. 78 Quem cunque sacra corona coronatum videris, etiam si bos fuerit, adorato et pro sacrosancto rege ducito et observato. Antonii Bonfĳinii Rerum Ungaricarum decades quat- uor cum dimidia Basileae, ex offfĳicina Oporiana, 1568, Dec. 4, Lib. 3, p. 588. Thebon mot was probably a sneer at Vladislas II. See György Szerémi, A mohácsi vész kora, Szeged, 1941, pp. 25, 27, 30. the holy crown of hungary, visible and invisible 31 coronations took place in traditional form with St Stephen’s Crown at Székesfehérvár, offfĳiciated by the same István Podmaniczky, the Bishop of Nyitra.79 All the same, the authority of St Stephen’s Crown, if anything, acquired new signifĳicance during the reign of the Habsburg dynasty. The diaetalis coronation, with the Oath and with bargaining which preceded the issuing of the Inaugural Diploma, offfered the best institutional safeguards to the nobility against the encroachments of the alien monarch.80 The transparent utility and rational function of diaetalis coronation did not, however, weaken the supernatural attributions of the emblem even in the eighteenth century. József Keresztesi, a Protestant parson, recorded the violent storm that suddenly engulfed the whole country when, on the order of Emperor Joseph II, the Holy Crown was taken from Pressburg Castle to the Schatzkammer in Vienna in 1784.81 People there were convinced that God had punished them with economic miseries for the emperor’s daring act. It would be a mistake to assume that by the late eighteenth century only the uneducated attributed supernatural powers to St Stephen’s Crown. On the command of Emperor Joseph, the Staatsrat instructed the University of Pest to revise a textbook MS in 1785 on Hungarian Public Law to ‘explain the rights derived from the alleged sanctity of the crown as state-rights’.82 In late February 1790 the regalia were brought back to Buda amid, even by Hungarian standards, great pomp and splendid celebrations. The counties set up banderia for the crown’s ‘protection’. The Holy Crown was addressed as if a ‘person’ in speeches, poems and songs.83 Law VI of 1790, in making provisions about the keeping of the royal emblem in Buda, observed that the Holy Crown, which had faced great perils, nonnisi superum favore servatam. The innovations of Joseph II, ‘the hatted king’ so called as he dodged his coronation, incurred the same fate as happened to the charters of

79 Bartoniek, A m. királykoronázások, pp. 85–91. 80 For the text of the inaugural Diploma, see Henry Marczali, Hungary in the Eighteenth Century, Cambridge, 1910 (hereafter: Hungary), pp. 348–52. 81 József Keresztesi, Krónika Magyarország polgári és egyházi közéletéből, Pest, 1868 (hereafter: Krónika), pp. 82–83 and 197; for an account of Joseph’s measure see Henrik Marczali, Magyarország története II. József korában, 3 vols, Budapest, 1885, 2, pp. 363–69; see also Éva H. Balázs, Hungary and the Habsburgs 1765–1800, Budapest, 1997, pp. 204–05. 82 Ferenc Eckhart, A jog- és államtudományi kar története, Budapest, 1936, (hereafter: A jogi kar tört), p. 150; Keresztesi, Krónika, p. 198. 83 Ibid., pp. 196–203, 214; Keresztesi apparently examined ‘the so called’ Holy Crown, described in his diary (he knew that it could not be Stephen’s) and was surprised by the ‘superstitio’ that surrounded it (pp. 269–75); Benda-Fügedi, Stephanskrone, pp. 164–78; Bertényí, Szent Korona, pp. 125–28. 32 chapter one

Vladislav I.84 The cult of St Stephen’s Crown, as E. H. Kantorowicz alluded to it, created such a robust tradition of continuous and legitimate political authority that there was no need (indeed no room) for abstractions like the theory that ‘the king never dies’, or that the king possessed two bodies, a physical and a political.85 The Enlightenment and nineteenth-century liberal constitutionalism dented the belief in the sacred character and mystery of the crown visible. Through gradual and incomplete change, St Stephen’s Crown became a symbol of the values and fundamentals rather than, as earlier, a carrier of them. The coronation with the crown, however, retained its constitutive force up to the end of the Monarchy. Elsewhere it may have become a ceremony but in Hungary, insisted Ferencz Deák, coronation was constitutionally essential.86 As in earlier centuries, the crown of St Stephen has continued to show a remarkable narrative even in the more recent periods. Because the visible crown was indispensable in legitimising political power at times of impending regime change, the crown habitually disappeared from Buda Castle where from 1790 it had been kept. In 1849, the crown travelled three times. In January it was taken to Debrecen to avoid the army of Prince Windisch-Graetz. It was returned to Buda after Görgey had retaken the city in May. In late August, when the War of Independence was lost, Prime Minister Szemere, before escaping to the Ottoman Empire, buried the chest of regalia in swampy ground at the borders. It took over four years for the Austrian authorities to fĳind the chest.87 The coronation of Francis Joseph in 1867 combined the inauguration of the

84 The derisory nickname of kalapos király became in 1781 the title of the Pauline monk Pál Ányos’s manuscript poem: Lóránt Czigány, The Oxford History of Hungarian Literature, Oxford, 1984, p. 90; Béla Tóth, Szájrul szájra, Budapest, 1901 (hereafter: Szájrul), pp. 71–72. Joseph II’s ordinances were not recognized by the courts, and see note 77 above. 85 Kantorowicz observed that ‘Hungary carried the distinction between the mystical Crown and a physical king to great refĳinement, but the material relic of the Crown of St. Stephen seems to have prevented the king from growing his own super-body’, The King’s, p. 446. 86 ‘The coronation is constitutionally essential’ wrote Ferencz Deák: Ein Beitrag zum ungarischen Staatsrecht (hereafter, Ein Beitrag), Pest, 1865, pp. 207–08. Also, Deák Ferencz beszédei, ed. Manó Kónyi, 6 vols, second edn, 1897–1903 (hereafter: DFB), 3, p. 554, the text of the Address of February 1866. The coronation with the Holy Crown in the course of which the neorex takes the Oath and on his inauguration issues the Diploma provided the indispensable guarantees for the constitutionality of monarchic rule. Deák insisted that the Diploma was not ordinary law: the issuing of it, before the coronation, was a duty: Ein Beitrag, pp. 157–58. 87 Benda-Fügedi, Stephanskrone, pp. 181–97. the holy crown of hungary, visible and invisible 33 constitutional regime with a formidable display of pageantry. The last coronation that of Charles IV in 1916 was a subdued occasion. The crown tilted (megbillent) on Charles’s small head and within two years his kingdom and empire were dissolved.88 In October 1944 the Regent, Admiral Horthy, ordered the crown to be buried. The fascist successor regime dug it up and Szálasi took the oath facing it. Not long afterwards the chest of regalia began its long journey, this time to the West, to escape capture by the advancing Red Army. Once more, the crown was buried in Germany. The US authorities dug it up where after its whereabouts were uncertain for many years. In fact, the chest was kept at Fort Knox until January 1978 when the US government handed back the regalia to Hungary.89 There is no mistake: the Crown of St Stephen is inamissible.

The Visible and the Invisible Crown Compared90

Enough has been said to demonstrate that the Crown of St Stephen has engendered a singular and enduring national tradition. The visible crown of Hungary has been surrounded by an unambiguous cult from medieval to modern times. The constitutional function of the visible crown can also be properly attested through legal evidence. There is plenty in the law book on the visible crown: how and where it was to be guarded, about its elected Keepers and about the coronation itself. In contrast, the invisible crown, the ideas associated with the Holy Crown, apart from some territorial uses, partly based on the medieval precept of inalienability, only rarely appear in the law book. Indeed, the primary context of the invisible crown has always been political rhetoric rather than constitutional law. Any attempt to summarize the history of the invisible crown, so far as it may be separated from the visible one, is like trying to put a ferret into a bag. The subject is complex and highly controversial. The last work on it, based on original research, was published over sixty years ago by Ferenc

88 Alice Freifeld, Nationalism and the Crowd in Liberal Hungary, 1848–1914, Washington, D.C., 2000, pp. 189–92 and 214–19 offfers a vibrant account of the coronation on 8 June 1867; Benda-Fügedi, Stephanskrone, pp. 218–21; Bertényi, Szent Korona, pp. 137–41. 89 Benda-Fügedi, Stephanskrone, pp. 226–32. 90 For general points, see Kantorowicz, The King’s, pp. 336–42; Sándor Radnóti observes that in contrast to Western Europe, where institutional continuity was secured by the invisible crown, in Central and Eastern Europe ‘the visible crown provided continuity’, ‘Az üvegalmárium, esettanulmány a magyar korona helyéről’, Beszélő, III. Ser. 6, November 2001 (hereafter: ‘Üvegalmárium’), p. 49. 34 chapter one

Eckhart.91 In contrast to the visible crown, which has attracted much scholarly interest, very little research has been done on the invisible crown since Eckhart’s book. This study will lean heavily on the knowledge that went into it. Eckhart took for granted that because the past and the present were always mixed up in ‘crown’ uses, the tradition had to be studied as a whole. The question that primarily interested Eckhart was about continuity versus discontinuity. That was entirely justifĳied. It would be a grave (yet in practice very common) error to assume that the historian’s job is to unravel the ‘development’ or history of the Holy Crown ‘idea’92 sub specie aeternitatis, as it were.93 I fĳind such an assumption manifestly untenable. A patently multi-vocal term, only as such is the ‘crown’ an appropriate object of study. Accordingly, what follows here will be an attempt to distinguish the diffferent classes of corona uses (from age to age), establish the provenance of new ones, where serviceable, explain their context and discard attributions to the crown that are patently anachronistic. The exercise may shed some new light on the nature of the Holy Crown tradition. Sixty years is a long time (the past, as we all know, is a diffferent country). I take assumptions, diffferent from Eckhart’s; I see distinctions at places elsewhere than he did. These diffferences undoubtedly have a bearing on my conclusions. For all this, the inspiration to pursue this study came from his work.

Rex and Corona: The Incumbent and the Institution

As it appeared in the Hungarian sources in the eleventh century, corona, by far the most prolifĳic multi-vocal political term in the country’s history, was clearly an adaptation from contemporary Christian political theology in which its uses usually appeared in association with a jewel. We have already seen that the term in Hungary, as in other countries, stood for the gold rim embellishing the king’s head with the function of transferring the spiritual and material powers of royalty. Upon this primary sense of corona stood a whole cluster of uses: it appeared as the royal dignitas

91 Eckhart, Szentkorona; for a good summary of this basic study, see Josef Karpat, ‘Die Idee der Heiligen Krone Ungarns in neuer Beleuchtung’ (hereafter: ‘Die Idee’) in Manfred Hellmann (ed.), Corona regni, Darmstadt 1961 (hereafter: Corona), pp. 349–98. Ferenc Eckhart, born in 1885, was Professor of Legal and Constitutional History in the Law Faculty, Budapest from 1929 to 1957. 92 ‘A szentkorona eszme’; Ferenc Eckhart, notwithstanding his book’s title, was probably aware that it was a misnomer or at least a malapropism. 93 The assumption of the Holy Crown ‘idea’ frequently leads to the patently anachronistic corollary that the crown has symbolized the ‘Hungarian State’. the holy crown of hungary, visible and invisible 35 associating the notions of rank, prestige, and honour; also as that of offfĳi- cium associating capacities, i.e., properties and competencies of power in its material appearance.94 Further, since earthly capacities were blended with transcendental ones in the inauguration, corona associated the spiritual capacities of kingly power. More widely, corona conveyed everything that was consecrated by the Church as belonging to the king’s vocation and even his character qua king. Finally, corona denoted kingship in general, insofar as an abstraction like this could exist in the eleventh century. These uses of corona, interwoven with purely religious ideas, appear in the legends, in early Hungarian chronicles and similar writings. Sense and context are frequently not easily defĳinable, a characteristic of Christolog- ical thought taken over to the political writings in liturgical kingship. In the Admonitiones95 two crowns occur: Stephen’s terrestrial, and therefore temporal corona, meaning a jewel and also a holder of certain qualities, and a celestial and therefore eternal corona as the apotheosis of saints.96 The holiness and glory of the former are sometimes contrasted, at other times not really distinguished from the celestial bliss and sanctity of the latter. The king serving God faithfully through his terrestrial corona will eventually be worthy of the other, the celestial corona. If he wants ‘to keep the royal corona in honour’97—Stephen tells his son—he should retain the Christian faith: without that he would neither be able to reign in honour nor would he share in the ‘eternal kingdom or corona’.98 Emericus is

94 Most of these uses are not yet based on clear distinctions. Rex and corona or dignitas and offfĳicium are not juxtaposed, they are close cognates if not synonyms of each other in the legends, in King Stephen’s Admonitiones and in the early chronicles: Bartoniek, A m. királykoronázások, pp. 67–69; SRH, 2, pp. 621–24; Josef Karpat, ‘Corona regni Hungariae in Zeitalter der Arpaden’ (hereafter: ‘Corona’) in Hellmann, Corona, pp. 225– 348 (transl. from Slovak, Bratislava 1937); Eckhart, Szentkorona, pp. 13–17. 95 Libellus de institutione morum, SRH, 2, pp. 619–27; King Stephen’s Admonitiones to his son Emeric: Bartoniek, ‘Corona’, pp. 314f. 96 The roots of the crown concept of the Admonitiones as being based on the European Christological literature is discussed by József Balogh in his ‘Szent István politikai testa- mentuma’, vols 9–10, London, 1930, pp. 129–64, and 1931, pp. 39–51; also in his ‘Szent István “intelmei”-nek forrásai’, in Cardinal Primate Jusztinían Serédi (ed.), Szent István- Emlékkönyv Szent István halálának kilencszázadik évfordulóján, 3, Budapest, 1938 (hereafter: Emlékkönyv), 2, pp. 237–65 and esp. 262; Jenő Szűcs, ‘König Stephans “Institutionen”’, in Nation und Geschichte, Budapest, 1981, pp. 245–62. 97 ‘Si regalem cupis honestare coronam.’ SRH, 2, p. 621. 98 ‘nec eterno regno vel corona participantur.’ Ibid. Also ‘Hec omnia superius libata regalem componunt coronam, sine quibus vallet nullus hic regnare, nec ad eternum per- tingere regnum.’ Ibid., p. 627. Bishop Hartvic writes of God: ‘… ille nimirum potius electum suum Stephanum hac (temporali) statuerat felicitier insignire corona, ipse postmodum eundem felicius decoraturus eternal.’ Life of St. Stephen, ibid., p. 413. 36 chapter one told to augment the Church’s properties so that his corona may be praised.99 He is to mete out justice, this being ‘the [fĳifth] ornament of corona’.100 Hospites adorn the court, says the author, so if they are patron- ized by the king ‘[your] corona will be held in esteem by everybody’.101 The spirit of disobedience ‘disparages the leaves of corona’102—said at another place. Again: ‘The degree of virtues defĳines the king’scorona .’103 At the end of the work Stephen declares that royal corona is ‘compounded by the discussed principles’.104 All in all, the function of corona in the Admonitiones is to demonstrate the substance of kingly power. The term embraces the duties of the king, the qualities the holder of the offfĳice ought to have, and also the principles of rule to be followed. Most of these uses of corona were close to rex; however, none were merely identical with it. The terms rex and corona, though in none of the available sources of the eleventh century are they juxtaposed, stand for more than rhetorical tautology.105 Corona was, even in the eleventh century, distinct from rex. The use of both terms did not reflect a functional diffferentiation between man and his offfĳice, although this idea could have been known in Hungary at that time. Nor was the use of the two terms related to any distinction between offfĳicium and dignitas, these being close cognates if not synonyms at the time. Rex usually embraced the king both qua king and also qua human being. It seems, however, especially in the Admonitiones, that rex sometimes means only the latter and that the more spiritual corona tends to cover kingship.106 It looks plausible that this was so. King Stephen (Vajc) inherited power from his father Geiza—a pagan—and the future king himself had been converted to Christianity in his youth. The king’s person, therefore, could not alone represent all the new qualities attached to Christian rulership. The qualities set out for the king to practise per- tained to corona: rex, the offfĳicium in its ideality. So corona in the eleventh

99 Ibid., p. 622 (26). 100 ‘… quinta regalis corone est ornatio. And again, ut tua corona laudabilis sit et dec- ora.’ Ibid., p. 624. 101 ‘tua corona ab hominibus habeatur augusta.’ Ibid., p. 625. 102 ‘Spiritus guidem inobedientie dispergit flores corone.’ Ibid., p. 626. 103 ‘Modus virtutum fĳinit coronam regum.’Ibid. , p. 627. 104 Ibid. For other examples see Balogh’s works in note 96. 105 This does not mean, however, that the distinction was already clear either. Kantorowicz (The King’s, p. 345) writes about the distinction between king and crown found in Glanvill’s De legibus et consuetudinibus regni Angliae, although here the institutional framework was undoubtedly more diffferentiated than in Hungary. 106 Bartoniek, ‘Corona’, pp. 314–17. the holy crown of hungary, visible and invisible 37 century was distinct only from rex as human being and that only by implication; no explicit contrast was made between them as yet. Corona, of course, belonged entirely to the king. It was his in the sense that it was conferred upon him by the Church on behalf of both pope and emperor to the exclusion of everybody else. Corona, when it appeared in Hungary, implied a reference to a higher authority.107 The grace of God was transmitted through it to the king and so the distinction between rex and corona was already beginning to appear. It was, however, insufffĳicient as yet for the emergence of a consistently dichotomous use of rex and corona. As the person of the king and his dignitas were connected, royal charters referred to the honor, gloria, commodum, incrementum of the crown, and likewise its preiudicium, det- rimentum or opprobrium.108 These uses did not yet separate corona and rex. Soon, however, the rights, duties, properties and capacities as they gradually evolved as parts of the royal offfĳice, became attributes ofcorona , a process by which the term became fĳilled with positive content. As the capacities and competencies of the royal offfĳice diffferentiated, so did the senses and contexts in which corona appeared. By the thirteenth century ius coronae, and indeed the totality of the king’s legal position—status corone—were in use.109 Thus, a clear distinction fĳinally emerged between the person of the king and the impersonal institution; between rex, the temporary incumbent, and corona, the royal offfĳice; or perhaps, on a more abstract level, between the auctoritas of sacral rulership and the potestas of the offfĳice holder.110 The emergence of the clear distinction between rex and corona followed a general European pattern.111 Neither in Hungary, nor elsewhere in Europe, did the making of the distinction involve a concept of the ‘State’112 as the legally organized society or community. Further,

107 Eckhart, Szentkorona, pp. 14–15. 108 Karpat, ‘Corona’, pp. 312–23, passim; Eckhart, Szentkorona, p. 43. 109 Ibid., 22f, 47–48; Ferenc Eckhart, ‘The Holy Crown of Hungary’ (hereafter: ‘The Holy Crown’), The Hungarian Quarterly, 6, 1940/41, pp. 633, 639. 110 József Deér, ‘A szentkorona eszme története’ (hereafter, ‘A szentkorona’) Századok, 76, 1942, p. 203; yet rex could still have more abstract uses. At the coronation ceremony of Maria Theresa in 1741 the nobles shouted: ‘Vivat Domina et rex noster!’ Bartoniek, A m. királykoronázások, p. 162. 111 On the distinction between the person of the king and the ‘crown’ representing the king as an institution in Europe, see: Fritz Hartung, Die Krone als Symbol der monarchis- chen Herrschaft im ausgehenden Mittelalter (Abhandlungen der preussischen Akademie der Wissenschaften, Phil.hist. Klasse Nr. 13, 1940 (hereafter, ‘Die Krone’), repr. in Hellmann, Corona, pp. 1–69; Kantorowicz, The King’s, pp. 358–60. 112 At this point nearly all historians (even Marczali) take a leap in the dark insisting that when corona is clearly distinguished from rex it becomes the ‘subject’ or the 38 chapter one the distinction, as we shall see, did not lead in medieval Hungary to a corporate political conception of the crown. The king habitually referred to corona as his own: corona nostra regia.113 And later when the crown was predicated on regnum Hungariae, it was either the king’s regnum or regnum in the (territorial) kingdom sense. Normally, the capacities that inhered in corona, the offfĳice, concerned the incumbent to the exclusion of others. The king in Hungary wielded near despotic power based on, by West European standards, an enormous patrimonium. He was dominus terre (private) lord and ruler to whom and to his crown all inhabitants were subjected without distinction.114 All subjects owed allegiance to the king and his offfĳice as fĳideles coronae regiae. Loyalty was demonstrated through servitium nobis et regiae coronae which, if exceptional, invoked gratia and donatio by the king.115 And contrariwise, lack of loyalty towards the king, nay rebellion against him, was treason, violation of allegiance to corona.116 Papal intervention was at times decisive in the afffairs of the kingdom and, correspondingly, the Church and the Holy See had strong influence

‘personality’ of the State: Marczali, Hungary, p. 303. Other historians, going even further, assume that the crown ever since St Stephen has ‘symbolized the Hungarian state’, for instance Bartoniek, ‘Corona’, p. 529. Eckhart assumed in 1941 (but, as we shall see, not earlier) that the change, leading to the concept of the ‘State’, gradually evolved from the late fourteenth century: Eckhart. Szentkorona, pp. 72, 79, 81, 84–87, 102 (!); also, Eckhart ‘The Holy Crown’, pp. 637f. József Deér rightly pointed out in his book review that Eckhart was wobbly and partly contradictory in his use of terminology: ‘We cannot share, however, his view that from the end of the fourteenth century the crown in external relations became a symbol of the State. It all depends on what we mean by the State and the extent to which we can shed its modern associations’, Deér, ‘A szentkorona’, pp. 203f. Bertényi follows the traditional Hungarian thesis rather than Deér: Szent Korona, pp. 145 and 148. Fritz Hartung wrote that the crown in sixteenth century Europe, following Bodin’s work, lost its importance in representing the royal offfĳice (as opposed to the king’s person) and the ‘crown’ was replaced by the abstract idea of the ‘State’: ‘Die Krone’, in Hellmann, Corona, p. 48. However, this process began only in the seventeenth century in Western Europe and it had not yet afffected Central and Eastern Europe. See Quentin Skinner, ‘The State’, in Terence Ball et al. (eds), Political Innovation and Conceptual Change, Cambridge, 1989, pp. 90–131. 113 Eckhart, Szentkorona, pp. 76–77; Bak, Königtum, pp. 22–23. 114 Eckhart, Szentkorona, pp. 35f, 104–05; idem, ‘The Holy Crown’, p. 639; Martyn Rady, Nobility, Land and Service in Medieval Hungary, London, 2000 (hereafter: Nobility), p. 16. 115 Váczy, Szimbolikus, pp. 31f; Eckhart, Szentkorona, pp. 45–49; Agnes Kurcz has pointed out that because of the fear from attack by the Tatars fĳidelitas played a central role in the relationship between the king and the nobility in the second half of the thirteenth century: ‘Arenga und Narratio ungarischer Urkunden des 13. Jahrhunderts’, Mitteilungen des Instituts für österreichische Geschichtsforschung, 70, 1962, pp. 322–54 (pp. 337–42). 116 Ibid., p. 45. the holy crown of hungary, visible and invisible 39 on the growth of ideas associated with the crown in Hungary.117 In order to uphold the royal dignity the pope enjoined the king to preserve his patrimonium by revoking lands alienated by him or his predecessors to the detriment of his offfĳice. ‘At your coronation’, wrote Pope Honorius III to King Andrew II in 1220, ‘you swore to preserve the rights of your royal offfĳice and the dignity of your crown unimpaired’.118 The inalienability of the royal patrimonium was then, in the fourteenth century, extended to the whole territory of the corona regni Hungariae. The king, the temporary incumbent, could not alienate any part of the kingdom to another country, this being detrimental to the crown: the unity of the kingdom. The king at his coronation took the Oath to recover alienated land, lost from the kingdom’s territory, ‘to the possession of the Holy Crown’.119 The royal revenues were said to be crown revenues, kept in the crown’s treasury, which was, however at the sole disposal of the king.120 The same went for the crown’s right of escheat: land without rightful heir reverted to the crown, the radix of all property, that is the royal offfĳice.121 Werbőczy, a high judge in royal service, wrote in 1524 that his duty was to administer justice to all who sought it, including Jews and Gypsies, if they were subjects of corona regni Hungariae.122 A telling example that shows the indivisibility of the crown’s authority lies in respect to the arrangements made under interregnum. In 1401 the

117 Karpat, ‘Corona’, p. 347. The author points out that crown uses were more prominent in Hungary than in Bohemia and Poland because of Hungary’s proximity to Rome; Eckhart, Szentkorona, pp. 33–34, 49–54. Eckhart throughout his work placed his subject in a wide European context and in a separate chapter looked at Hungary’s neighbours. He noted that the crown in Bohemia became a corporation of the estates in the fĳifteenth century (the Hungarian development was more conservative). In Poland the territorial unity of the kingdom dominated crown uses. The distinguishing feature of the ‘crown’ in Hungary was the central importance of fĳidelitas, pp. 142–58. 118 Eckhart, Szentkorona, p. 22; Idem, ‘The Holy Crown’, p. 634; Kantorowicz, The King’s, pp. 354f. The inalienability of the rights of the crown developed in much the same manner in many European countries, ibid., pp. 345f. The unity of the crown was afffected neither by the Árpád’s custom of dividing the ruling of the kingdom among the male members of the house (ducatus) nor by the short lived institution of junior rex, introduced by Béla IV in 1262 whose son had already been crowned in 1246. See Gyula Kristó, A feudális széttago- lódás Magyarországon, Budapest, 1979, pp. 33–34, 37, 54 f, passim. See Eckhart, Szentkorona, pp. 44–45. 119 Eckhart, Szentkorona, pp. 105–12, 116f, 140; Idem, ‘The Holy Crown’, p. 639. 120 Ibid., idem, Szentkorona, p. 111. 121 The crown was regarded the radix of all property but the idiom ‘sacra corona radix omnium possessionum’ which has sometimes been attributed to Werbőczy, at other times to Imre Kelemen. I could fĳind it neither in the Tripartitum nor in any editions of the Institutiones juris hungarici privati. 122 Letter to András Báthory on 27 February 1524 quoted by Eckhart, Szentkorona, p. 105n.8. 40 chapter one royal dignitaries kept King Sigismund prisoner in Visegrád Castle for six months. During this time the Primate of Hungary as Chancellor acted auctoritate iurisdictionis corone rather than, as usual, regia auctoritate. He engraved a new seal, sigillum sacre corone regni Hungariae. The soon forgotten arrangements arose clearly as a temporary substitute which the clear distinction between the physical king and the royal offfĳice made possible.123 The incident did not lead either to institutional or conceptual change124 but similar arrangements obtained on other occasions. During the interregnum that followed the death of Vladislav I, János Hunyadi, as regent from 1446, acted by reference to the Holy Crown in the absence of the king, a minor.125 Article XIV 1446 instructed the regent that repossessed mortgaged properties should be returned to the Crown for the king (ea Coronae reapplicando Domino Regi reservare).126 These cases amply demonstrate that the distinction between rex and corona was between the incumbent and the offfĳice. The capacities of the Holy Crown were not shared; the crown was not a super-body which embraced the king and the estates.127 This does not mean, however, that the Church, the barons, the nobility and, from the fĳifteenth century, the diet were not institutionally connected to the responsibilities of the king and, thereby, to those of the Holy Crown.128

Corona Regni

The king in Hungary, as in other Christian kingdoms, had duties toward the Land and his subjects. These obligations arose from the mode in

123 Ibid., pp. 79–82. 124 Eckhart thought that the incident made the Holy Crown ‘the sole subject of state power’, ibid., p. 79. 125 Ibid., pp. 99–101. 126 M. G. Kovachich (ed.), Vestigia comitiorum apud Hungaros, Buda, 1790, p. 260; János M. Bak et al (eds), The Laws of the Medieval Kingdom of Hungary, 3 vols, Salt Lake City, UT, 1992–93 (hereafter: DRMH), 2, p. 115 (English translation). 127 As far as I can see, only József Deér recognized this among Hungarian historians, see note 112 above. There are one or two cases in which foreigners refer to the Hungarian crown as a ‘community’, for example, in a letter by the Polish Treasurer to Bártfa in 1438: ‘ac totam communitatem Hungarie sacre corona’, Eckhart, Szentkorona, p. 128n.62. 128 In comparing the growth of corona uses in Hungary and Bohemia Eckhart found that the imperative presence of a specifĳic material crown made the Hungarian development more conservative than the Czech. Another distinguishing feature of the Hungarian practice was the centrality of the notion of fĳidelitas towards the royal and later the ország’s crown, which was associated the system of royal land donation. See below, Eckhart, Szentkorona, pp. 151–53. the holy crown of hungary, visible and invisible 41 which power was transferred to him. The rex haereditarius, the legitimate successor, was duty-bound to arrange his coronation, as we have seen, with the crown of St Stephen,129 offfĳiciated by the Roman Catholic hierarchy in the presence of the kingdom’s high dignitaries, the barons. A splendid pageant, at which Hungarians always excelled, the inauguration was not merely a formal ceremony of investiture. From the late Middle Ages, it had to be performed diaetaliter as a bestowal of authority, transferred to the king after hard bargaining with the assembled estates. This contractualist character of the coronation was maintained until 1918.130 The king had to take a solemn oath in church131 and from 1687 enact, in decretum form, the Inaugural Diploma in which he promised to defend the kingdom and its inhabitants, to recover and reincorporate with the kingdom lost territories as well as to maintain the ancient privileges, laws and customs unimpaired.132 Further, when the deceased king had no legitimate heir, the bishops and the barons, and later the whole landed nobility of

129 After 1790 within six months of his accession, as stipulated by Art. III of 1790 following Joseph II’s ten years of ‘unconstitutional rule’. 130 Antal Csengery’s diary preserved Deák’s comment made on 11 June 1867, the day of Francis Joseph’s coronation, that the nation in the Diploma ‘renews the contract’ with the new incumbent: Lóránt Csengery (ed.), Csengery Antal hátrahagyott íratai, Budapest, 1928, p. 94. The Conservative Pál Somssich, President of the House, said in an electoral address in 1869 that the coronation was a ‘reinforcement of the mutual contract which the nation had made with the Habsburg House in 1723’: Miklós Somssich (ed.), Somssich Pál beszédei, Budapest 1942, p. 107. Miksa Falk in 1892 described the coronation as ‘the external sign of the agreement between the monarch and the nation as regards their mutual right and duties’: ‘A koronázás közjogi jelentősége’, in Dénes Kovács et al. (eds), Koronázási Emlékkönyv, Budapest, 1892, p. 25. 131 The king swore to observe ‘the immunities, liberties, rights, laws, privileges, the good old approved customs’ of the prelates, barons, nobles and all the inhabitants of the kingdom, to dispense justice to all, and to respect the decretum of Andrew II, the Golden Bull of 1222 with the exception of the clause on the right of resistance. He would not alienate any part of the kingdom’s territory and would promote the common good. The royal oath’s text was included in the decretum issued at the time of the coronation. On the oath in the Middle Ages see Emma Bartoniek, ‘A koronázási eskü fejlődése 1526-ig’, Századok, 51, 1917, pp. 5–44 132 For the medieval antecedents and capitulationes of the ‘elected’ kings, see Bartoniek, A m. királykoronázások, pp. 54–57; András Kubinyi, ‘Die Wahlkapitulationen Wladislaws II. in Ungarn’, in Rudolf Vierhaus (ed.), Herrschaftsvertrage, Wahlkatipulationen, Fundamentalgesetze, Göttingen, 1977, pp. 140–62. The Diploma of Joseph, enacted in January 1688 (not yet in decretum form), was arranged under fĳive headings: the confĳirma- tion of rights; the Holy Crown to be kept by its Keepers in the country; the reincorporation of reconquered territories with the kingdom and its adjoined parts; the right of the estates to elect the king in accordance with their ancient custom to remain intact (from 1723 after the Karl, the Joseph and the Leopold branches of the dynasty become extinct); a promise that all the successors would arrange their inauguration diaetaliter, take the oath and issue the Diploma. See Marczali, Hungary, pp. 350–52. 42 chapter one the regnum, the ország, claimed the right to ‘choose’ a king at their assembly, the diet, which developed in the fĳifteenth century.133 In this sense the Holy Crown became the ország’s crown.134 But the powers of the crown belonged to the king and those who acted on his authority or, in very exceptional circumstances, those who temporarily acted on behalf of the royal offfĳice without the king (as in 1401). The ország, by transferring the potestas of the offfĳice to the new incumbent, legitimised the transition by reference to the auctoritas of the Holy Crown, for the mechanism of the royal land donation changed the relationship between the king and organized society. The prelati et barones, through the royal council, acted as power brokers, and in the fĳifteenth century the servientes regis, the landed nobility of the self-governing counties, brought forth the diet of ország. In sum, the nobility, the counties and the diet shared power with the crown, rather than with the king in the crown.135 Indeed, the institutions of the kingdom moved quite in the opposite direction. Side by side the monarch’s regnum, the term in its other, ország, sense stood for the politically organized society seen as a corpus, a body with ‘members’.136 The organic metaphor (used widely in Europe) was in Hungary applied fĳirst to theprelati et barones137 and then through gradual

133 Emma Bartoniek, ‘A magyar királyválasztási’, pp. 385f; Elemér Mályusz, ‘A magyar rendi állam Hunyadi korában’, Századok, 91, 1957, pp. 46–123, 529–602; Bak, Königtum, chs 3 and 4. 134 Bartoniek, ‘Corona’, pp. 325–27; Eckhart, Szentkorona, pp. 96–99. Per contra József Deér argued that regnum in the phrase corona regni should be translated as ‘kingdom’ rather than ‘ország’ (see next footnote). Deér might have been right for many cases before the Habsburg period, but not after. Also the four laws passed by the diet between 1464 and 1500 about the protection of St Stephen’s crown clearly shows the ország’s involvement with the visible crown. 135 Today most Hungarian historians are less than willing to accept this distinction even though the two leading authorities on the subject, Ferenc Eckhart and József Deér, emphatically argued that the ‘transference’ of corona and ‘participation’ in the offfĳice of corona must be clearly distinguished from each other. See ‘Deér, ‘A szentkorona’, esp. pp. 204–05. 136 In the bipolar world of Hungarian politics regnum was either the monarch’s or the ország’s and was used in two diffferent clusters of senses (see Rady, Nobility, pp. 16 and 172–73). It was either coterminous with corona, and embraced the whole territory of the Hungarian crown (the ‘kingdom’ sense), or it meant the Land, which, as a repository of right, was coterminous with the Hungarian nobility and its territory, Hungary proper (the ország sense). Werbőczy juxtaposed regnum Hungariae with Dalmatia, Croatia, Slavonia and Transylvania: Tripartitum, Pt. III, Tit. 1–3. On the other hand, regnum Hungariae in the royal oath and the Inaugural Diploma was coterminous with the whole territory of the Holy Crown. Both uses survived into the nineteenth century. 137 The papal nuncio Gentilis enjoined the prelates and barons to obey Charles Robert in 1309 who they had recognized as king ‘cum non liceat a capita membra discedere’, quoted by Bartoniek, ‘A m. királyválasztás’, p. 389n.2. the holy crown of hungary, visible and invisible 43 extension to the collective rights of the landed nobility as a whole. The members of the ország formed a universitas of a sort, sometimes referred to as the totum corpus regni Hungarie.138 Just as the king exercised customary rights vested in the crown, the diet exercised corporate rights and privileges vested in the noble ország, the Land: Hungary as a possessor of rights. This structural dualism developed in the fĳifteenth century; it was exacerbated after 1526 when the Hungarian crown was acquired by the alien Habsburg dynasty. It became a central feature of the political institutions that the crown and the noble ország existed side by side as two distinct and largely separate repositories of right and authority which were mutually complementary and functioned alongside each other in conflict and accommodation.139 A notable common feature in the uses of corona, regnum (in its ország sense), comitatus, voivod(atus) of Transylvania and ban(at) of Slavonia and Croatia was that these terms signifĳied territory, offfĳice, rights of authority or merely an incumbent or a group. The Land (territory) of Hungary, the ország as a subject of right and the magyar nemzet (Hungarian nation) of the nobility were coterminous. The crown of Hungary, in addition to Hungary proper, ruled over other Lands, notably Croatia-Slavonia and Transylvania, both of which had their own distinct dualistic systems of rights. Werbőczy referred to Dalmatia, Croatia, Slavonia and Transylvania as regna that had long been subjected and incorporated with the sacra videlicet corona regni hujus Hungariae.140 If by the State we mean a more or less integrated system of law, we could fĳind it neither in respect of the territory of the crown nor of any of its Lands. For centuries, the kingdom was an acute case of legal-institutional

138 Bartoniek pointed out that in this form the communitas totius regni Hungariae and totum regnum Hungarie were synonyms and that they referred to the estates in juxtaposi- tion to the king: Bartoniek, ‘Corona’, pp. 328–29; Eckhart showed that both the royal council and the diet were seen as bodies with members. Charles Robert called together a diet in 1318 ‘omnes et singulos, qui se regni nostri membra existimant’ (Szentkorona, p. 179 n.61) and that by the middle of the fĳifteenth century all nobles were regarded as members of the ország (ibid., pp 181f) as well as the royal free towns of Hungary and sometimes even Dalmatian towns like Ragusa (Dubrovnik). See Bak, Königtum, pp. 74–77. 139 On the system of Doppelpoligkeit in the estate constitutions in general, see Otto Hintze, Staat und Verfassung, Leipzig, 1941, esp. pp. 111–13; Otto Brunner, Land und Herrschaft, Vienna 1970, esp. pp. 437f; Ferenc Eckhart, A magyar alkotmányfejlődés, Budapest, 1931 (hereafter: Alkotmányfejl.), pp. 15–16. 140 Tripartitum, Pt. III, Tit. 1 Section 1. Regnum Hungariae, territorially referred either to Hungary proper (like in partes regni Hungariae), the counties attached to Transylvania in the Ottoman period or, alternatively, to all regna under the Hungarian crown as in the Inaugural Diploma. Art. XVIII of 1741 offfers clear examples for the two uses. 44 chapter one bipolarity (Doppelpoligkeit),141 which had a lasting efffect on political attitudes and rhetoric. The bipolarity became a potent source of political nationalism after 1790. All in all, while organological forms, involving persons, social groups and territories, appeared in abundance when predicated on ország/regnum, the uses of corona afffected by the simile were confĳined to a few contexts.142

Werbőczy on the Holy Crown

István Werbőczy’s Tripartitum,143 published in 1517 sowed the seeds of a new Holy Crown tradition. Medieval Hungary’s distinguished jurist- politician habitually and consistently uses the term sacra corona in his customary in its traditional forms, based on the distinction between the king’s person and his offfĳice.144 In a single instance, however, Werbőczy in the Tripartitum refers to the landed nobles as membra sacrae corone.145 The use of the organic crown metaphor suggests a body politic which

141 See László Péter, ‘Die Verfassungsentwicklung in Ungarn’ (hereafter: ‘Verfassungs- entwicklung’) in Helmut Rumpler and Peter Urbanitsch (eds), Die Habsburgermonarchie 1848–1918, Vienna, 2000, 7, pp. 249–52; Martyn Rady has discussed Doppelpoligkeit and its limitations in his Nobility, pp. 158–61. He rightly criticized adherents of Doppelpoligkeit who posit ‘the existence of only two separate subjects of right, ruler and estates’, for the medieval polity was indeed ‘multicellular’. Yet, when we look at the diet in Hungary we fĳind it increasingly being dominated by the dialogue, tractatus, between the two actors and this is strongly reflected in the structure and style of the decreta up to 1867. 142 The one or two odd cases of organological corona uses applied to persons are mostly in foreign sources: Bartoniek, ‘Corona’, p. 327n 5, 328n 1; Eckhart, Szentkorona, pp. 127–28, 140. Offfĳicials of the town Ragusa in their diplomatic correspondence in the fĳifteenth century frequently extended the organological uses of ország to corona, the town describing itself as a member of the ország as well as the Holy Crown. Eckhart emphasized that the use was ‘purely territorial’: ibid., pp. 193–96 and see note 159 below. For the territorial organological corona uses, see further on p. 49f and 56f. 143 Werbőczy, Tripartitum, see note 77 above. The diet commissioned Werbőczy, proto- notary of the High Court, to collect the country’s laws. The draft, approved by a committee, attained royal approbatio, but the work was never promulgated by the king in a decretum. The Tripartitum was to become the book in Hungary which, apart from the Bible, attained the highest number of editions (said to be around fĳifty). 144 To ignore this fundamental fact, as many historians do, is itself a major failure of scholarship. Herewith a sample of references to passages in the Tripartitum where Werbőczy’s use of the Holy Crown is entirely traditional: Pt. I Tit. 3 Section 6, Tit. 9 Section 6, Tit. 10 Section 1, Tit. 13 Sections 2, 4 and 5, Tit. 14 Section 2, Tit. 16 Section 6, Tit. 24 Preamble, Tit. 26 Preamble, Tit. 37 Sections 2, 5 and 8, Tit. 64 Preamble and Section 1, Tit. 66 Section 4; Pt. II Tit. 3 Section 2, Tit. 14 Sections 31, 34, 37 and 43, Tit. 39 Section 3; Pt. III Tit. 1 Section 1. It is even more telling that Werbőczy sometimes refers to the reversion of property to the Holy Crown as jurisdictione regia (Pt. 1 Tit. 65 Sections 3 and 5) or fĳisco regio (Pt. 47 Section 2). See also, Eckhart, Szentkorona, pp. 197–99, and Bak, Königtum, p. 122n 32. 145 Pt. 1 Tit. 4, Section 1. the holy crown of hungary, visible and invisible 45 comprises both the king and the nobility.146 By placing the metaphor in its proper context we should, however, come to the conclusion that Werbőczy’s crown has very little to do with any corporate political conception. Where Werbőczy asks the question Qui possint condere leges, et stat- uta?,147 that is, where he discusses the political arrangements of the kingdom, he does not bring in the organic metaphor. He tells us at the beginning of his work’s Second Part that while the Hungarians were still pagans their dukes and captains made laws for them: After they [the Hungarians] converted to the Catholic faith and freely elected their king, they transferred the power and right to make laws, donating land and administering justice together with the rule and government to the jurisdiction of sacrae regni hujus coronae with which all the kings of Hungary are crowned,148 and consequently to our legitimate king and prince. And from this time onwards the kings have made laws by summoning and consulting the people as it happens in our age too.149 There is no sign of any corporate political theory, embracing the king and the nobility, in this passage. In order to explain the organic simile, used in a single instance in Pt. I of his work by Werbőczy, we should start with the politician rather than the jurist. For Werbőczy was the leader of the nobility party at the diet which supported Count János Szapolyai, the ambitious voivode of Transylvania, against the barons who ran Vladislas II’s court. A promoter of elective kingship150 based on the landed nobility, Werbőczy announced, right at the outset of his work, his cardinal principle: Quod tam personae spirituales, quam seculares, una et eadem libertate utantur.151 Within the nobility, Werbőczy claims, there were no legal diffferences. An opponent

146 This is the conclusion of most Hungarian historians. They ignore Eckhart’s contribution on this critical point, see Szentkorona, ch. 10. 147 Pt. II Tit. 3. 148 Notably, Werbőczy does not yet distinguish the visible crown from the invisible corona. 149 Pt. II Tit. 3 Section 2. Werbőczy read the conditions of the fĳifteenth and sixteenth centuries into the period of the Árpád kings. 150 An outstanding judge and silver-tongued orator, Werbőczy drafted the xenophobic ‘Rákos Resolutions’ at the diet in 1505 against Habsburg succession in favour of native elected kings. On the politics of the period see Dezső Szabó, Küzdelmeink a nemzeti királyságért 1505–1526, Budapest. 1917, pp. 94–99; on the political ideology of the nobility party see Bálint Hóman and Gyula Szekfű, Magyar történet, 5 vols, Budapest, 1936, 2, pp. 592–95; Bak, Königtum, ch. 6; Engel, The Realm, pp. 349–51, passim (a rather traditional account of Werbőczy’s crown ‘theory’). 151 Title of Pt. I Tit. 2. 46 chapter one of the barons and leader of the ‘nobility party’ Werbőczy, asserted the principle again and again: All prelates, Church leaders, barons, other magnates and nobles and persons of rank in this kingdom of Hungary with respect to their nobility and the possession of temporal goods, una eademque libertatis, exemptionis, et immunitatis praerogativa gaudent.152 This was a political programme rather than a legal fact. The legal positions of the prelates and the barons were always diffferent from those of ordinary nobles. But this is exactly what Werbőczy (the leader of the nobility party) set out to deny. The nobility as a whole (including the barons), the populus, which Werbőczy contrasted with the non- nobles, the plebs,153 enjoyed the same basic privileges, which he lists further on.154 After the announcement of his cardinal principle of ‘identical’ liberty, Werbőczy immediately went into history in order to explain how the communitas, when the Hungarians were still pagan, had split into populus and plebs.155 As Eckhart has convincingly argued, Werbőczy’s only interest here is to support by history the una eademque libertas principle and he entirely ignores the topic of political participation by the communitas.156

152 Section 1. 153 Pt. II Tit. 4. 154 These were the four cardinal privileges listed in the ‘Titulus Nonus’, Pt. 1 Tit. 9: (i) Nobles may not be arrested by anybody without a writ issued by a court, (ii) they are subject to no authority except that of the lawfully crowned king, (iii) they are exempted in perpetuity from servitude, dues, taxes and custom duties of any kind, their only obligation being the taking up of arms when the kingdom is attacked, (iv) if the king violates the liberties of nobles, they have the ‘right in perpetuity to withstand and resist, by word and deed, without thereby incurring the crime of infĳidelity’. The last point, the ius resistendi, appeared for the fĳirst time in Andrew II’s Golden Bull of 1222 (Art. 31). Werbőczy claimed that all the kings at their coronation had taken the oath on the keeping of the Golden Bull (in fact, only some did). Art. IV of 1687 annulled the ius resistendi. Because this act did not acquire the ‘tacit consent’ of populus, the king at his inauguration and right up to 1918 expressly excluded from his coronation Oath Art. 31 of the Golden Bull. For the critical edition of the Golden Bull in English see Bak et al., DRMH, 1, pp. 32–35. 155 Those who did not respond to the call up of the communitas of the Huns, that is the ancestors of the Hungarians, a communitas based on equality, were either executed or subjected to permanent servitude: Pt. I Tit. 3 Sections 2–4. 156 Following Elemér Mályusz, Eckhart explored the connections between Thuróczy’s Chronicle (1488) and Werbőczy’s digression into history to explain the division between the nobility and the ordinary people: Szentkorona, pp. 200–05. The ultimate source of Werbőczy and Thuróczy’s account was Simon Kézai’s ‘hun story’ in his thirteenth-century chronicle. Kézai in turn, as Jenő Szűcs argued, constructed his story on French analogies, ‘Társadalomelmélet, politikai teória és történetszemlélet Kézai Simon Gesta Hungarorumában’, Századok, 107, 1973, p. 595. the holy crown of hungary, visible and invisible 47

Here, Werbőczy explains that the Hungarians were, through the work of the szentkirály, converted to Christianity and: By freely electing [Stephen] and crowning him king, the communitas by its free will transferred to the jurisdiction of the kingdom’s Holy Crown and consequently to our prince and king, together with the rule and government, the right and the entire power of ennoblement and consequently of land donation which adorns and distinguishes the nobles from the non-nobles. Henceforth he is the source of nobility and the two things, owing to the reciprocal transference and mutual connection, are so interdependent that they are inseparable and unbreakable and the one cannot exist without the other. For the prince is elected only by the nobles and, in turn, the nobles are only created and adorned with that dignity by the prince.157 The thrust of this passage is that all nobles acquire nobility in the same way. Werbőczy then argues that nobility, earned by military or other services, is obtained by royal land donation. By virtue of this donation anyone endowed by the prince with a castle, an oppidum or a village becomes a true noble provided he is lawfully installed. After this, he sums up his position with a passage that became a locus classicus in the nineteenth century: And with us this donativa libertas is called nobility. Hence the sons of these nobles are rightly regarded as heirs and free. Such nobles, because of their endowments which we have just mentioned and of their connections, are considered as members of the Holy Crown, who are, apart from the lawfully crowned prince, not subjected to anyone else.158 It appears that for Werbőczy ‘crown membership’ is a mere simile to underline the thesis of una eademque libertas based on direct connections with the crown: and only such nobles (et huiusmodi nobiles!) who received (or inherited) land, donated by the king, were because of that, called members of the crown. Contrary to what has been repeated ad nauseam in more recent years, even by historians, in the Tripartitum it is not the nobility as a whole who are called members of the Holy Crown but only those who benefĳited from royal donation of land, a minority within the

157 Pt. I Tit. 3 Sections 6–7. 158 Pt. I Tit. 4 Section 1. ‘Et ista tandem donativa libertas, per nostrates, nobilitas appel- latur. Unde talium nobilium fĳilii, merito haeredes, et liberi nuncupantur. Et huiusmodi nobiles, per quandam participationem, et connexionem immediate praedeclaratam, membra sacrae coronae esse censentur; nulliusque, praeter principis legitime coronati, subsunt potestati.’ 48 chapter one nobility.159 And having established this, Werbőczy, very logically, gets down to discussing property rights, privileges and forms of donation and the organic simile never recurs in his work.160 The context in which Werbőczy used the organic metaphor was clearly fĳidelitas, service and land donation rather than the political rights of the communitas. He combined two precepts: the ország’s crown, in the form of an elective kingship, and his controversial principle161 that all nobles, as benefĳiciaries of the royal offfĳice, the Holy Crown, which was the single source of their donated land, were in law equal because they were not dependent on anybody else but the lawfully crowned king. In sum, the evidence is simply not there in Werbőczy that his organological crown metaphor even prefĳigured the idea of political authority, let alone a system of public law, residing in the Holy Crown as a corporation which comprised the king as head and the noble ország as its members. It is then a remarkable feat of nineteenth century scholarship that it was on Werbőczy’s authority that his metaphor, used in a single instance and in a very diffferent context, could become the main evidence to attest the evolution towards the concept of a unifĳied system of public law and political authority.

159 Less than one third of the whole nobility: see Rady, Nobility, pp. 155–57. Judicial practice followed Werbőczy in this respect too: see Béni Grosschmid, Magánjogi előadások, Budapest, 1905, pp. 237–38. Henrik Marczali made the point that royal land donation (rather than noble status) qualifĳied for membership: Ungarisches Verfassungsrecht, Das Öfffentliche Recht Gegenwart, vol. 15, Tübingen, 1911 (hereafter: Ung. Verfassungs), p. 28; and see notes 142, 221 and 406 below. During the Dózsa peasant uprising on 16 June 1514 Werbőczy, on behalf of four counties, requested the northern mining towns to send pix- idarios (lancers or musketeers) against the peasants, quia eciam Dominaciones Vestras membra sacre corone regni huius esse scimus. Zsuzsanna Hermann points out that the crown simile was hardly applied to towns, although rather exceptionally, in 1490 the metaphor was applied to Sopron in a missile regium. However, Werbőczy, an opponent of the towns, did not extend crown membership to them in the Tripartitum: Zsuzsanna Hermann, ‘Egy pénzügyi tervezettől a Hármaskönyvig’, Századok, 115, 1981, pp. 108–51 (pp. 130–32). Martyn Rady has drawn my attention to this case as well as to a similar one in an unpublished letter by Vitez de Kállai, ban of Szörény, to the citizens of Kassa (Košice) written in 1522 (MODL Df 271232). Art. XIX 1596 referred to the royal free town as property (peculium) of his majesty’s crown. The town as koranajószág appeared in the Regal Literature, alternately, as peculium regium and as peculium sacrae coronae. 160 Eckhart emphasized this point: Szentkorona, p. 208. 161 In fact a very high proportion of the nobility served as familiares (servitors) of the Church and magnates, see György Bónis, Hűbériség és rendiség a középkori magyar jogban, Kolozsvár (1944?), pp. 217–312; Martyn Rady regards familiaritas as ‘one of the distinguishing features of Hungarian noble society’: Nobility, p. 112. the holy crown of hungary, visible and invisible 49

Reincorporation with the Crown and the Ország

In the early modern age, as the kingdom became a part of the Habsburg empire, corona and ország moved apart. The royal prerogatives vested in the Holy Crown and the corporate rights of the ország or, as they were now called, the status et ordines of the counties and of the diet marked two separate spheres of right and authority.162 Their complementary relationships, the endemic conflict and accommodation between the two sides, provided the defĳining political tradition. The links between the offfĳices of the Hungarian crown, mostly subordinated to Habsburg imperial offfĳices, and theország diet became tenuous.163 The tripartite division of the kingdom in the sixteenth century accounts for the predominance of the territorial senses in which the Holy Crown turns up in the proceedings of the diet and in the decreta. As elsewhere in Christian medieval Europe, the territory of the Hungarian crown was held to be inalienable. It was an obligation imposed on the king by the oath he took at and the diploma issued after the coronation that he might not alienate any part of corona territory. Or, inversely, should any part of the territory over which the king had a claim to rule, and consequently held of the Hungarian crown, be severed from the rest by any means, he had the obligation to recover what had been (temporarily) alienated and reincorporate it with the rest of corona territory or, in other words, to bring it back under the king’s rule. The crown was indivisible. The duty of reincorporation acquired special signifĳicance after 1541 when Suleiman the Magnifĳicent occupied large parts of the kingdom. The diet habitually demanded that the monarch should retake the lost territories and re-incorporate them with the crown, and also with the regnum in its ország sense. In their territorial uses corona, like regnum, was regarded as a corpus with members.164 The two demands, when juxtaposed, did not

162 SS & OO became the abbreviated form (Status et Ordines). The organological image of the ország survived into the early modern age: the landed nobility, the royal towns, Transylvania, persons as well as territories, are said to be its members; examples are given by Eckhart, Szentkorona, pp. 240f. 163 See László Makkai, ‘The Crown and the Diets of Hungary and Transylvania in the Sixteenth Century’, in R J W Evans and T. V. Thomas, Crown, Church and Estates, New York, 1991, pp. 80–91. 164 Eckhart, Szentkorona, pp. 222 fff. and 245 fff. ‘Corona’ and ‘regnum’ in their ‘kingdom’ senses were interchangeable, at other times regnum Hungariae referred only to Hungary proper, the ország. 50 chapter one necessarily refer to the same territory. From the sixteenth century, three regna, each with its own customary laws, offfĳices and diet, coexisted: Hungary, Croatia and Transylvania.165 In the late seventeenth century the Habsburg army retook the territory hitherto under Ottoman rule and Transylvania reverted to the Holy Crown. There were some links between the ország of Hungary and the other regna. In the eighteenth century, Hungary and Croatia had some joint royal offfĳices and Croatia also sent deputies to the Hungarian diet.166 But the Croat Sabor possessed autonomous statute-making power which attained the royal assent167 without reference to the Hungarian diet. There was no diaetalis link between Hungary and Transylvania.168 The estates of Transylvania declared in Art. I of 1744 that the Principality, which used to be sacrae regni Hungariae coronae membrum—and even then under its own voivode—later had separated from that regnum169 and acquired its own princes. The apogee of the process in which each of the three regna was regarded as independent of the other two was reached in 1790, just as the fĳirst move in the opposite direction was being attempted. After the collapse of Joseph II’s system, all three regna declared170 that they were entirely autonomous, not subject to any other Land. In the eighteenth century the nobility demanded the re-incorporation (diaetaliter) of all territories that used to be parts of Hungary, yet after their re-conquest the crown had not reattached them to the ország.171 In

165 László Péter (ed.), Historians and the History of Transylvania, New York, 1993 (hereafter, Historians), pp. 8, 12; and Martyn Rady, ‘Voivode and Regnum’, in ibid., pp. 87–101. Count Miklós Zrínyi adopted the phrase that can be found in all European languages, ‘C’est un des plus beaux fleurons de la couronne’, for Transylvania: Tóth, Szájrul, pp. 42–43. 166 After the collapse of the Wesselényi conspiracy in 1670 Croat and Hungarian aristocrats politically moved apart. Conflicts of competence between the two regna were toler- able as long as the deputies of the ország did not attempt to ‘majorize’ the two Croat deputies at the diet in Pressburg. On its own, Croatia carried little political weight in the eighteenth century. Although the three Croat counties together raised less tax than a single larger Hungarian county, Croatia became a distinct regnum in the ország sense. 167 Section 1, Art. 120 of 1715. Croatia was, as Croats argued, subject to the Holy Crown, that is the king of Hungary, not Hungary (the ország) itself. The Croat estates offfered to accept the Pragmatic Sanction on 15 March 1712 without reference to the diet of Hungary: Joannes Kukuljević, Jura regni Croatiae, Dalmatiae et Slavoniae, Zagreb, 1862, 2, pp. 105–07. 168 There was some support in Hungary for diaetalis union with Transylvania but none there before 1790, see Péter, Historians, pp. 12–13, 22 and n.43. 169 ‘ab eodem regno’, here regnum in the kingdom sense. 170 See Péter, ‘Verfassungsentwícklung’, p. 261. 171 Eckhart, Szentkorona, pp. 232, 270. the holy crown of hungary, visible and invisible 51

Art. XVIII 1741 Maria Theresa promised that, subject to conditions, the counties of the so called ‘Partium’172 and the Militärgrenze173 would be reincorporated; she partly kept these promises.174 Within a few years the Tisza-Maros Militärgrenze was dismantled and, towards the end of her rule, so were the Banat and Temesvár; the rest of the Militärgrenze was not. The Partium stayed with Transylvania but the thirteen towns of the Zips were reincorporated with Hungary at the First Partition of Poland in 1772.175 Galicia, which was then acquired by Austria by reference to the rights of the Hungarian crown, was not attached to Hungary.176 Neither the court nor the nobility regarded it as a part of the ország in any sense. Fiume was an interesting case. In order to provide the kingdom with a seaport on the Adriatic, outside the control of both the Croat and the Hungarian nobilities, Maria Theresa, in two moves in 1776 and 1779, attached the town to the Hungarian kingdom177 as a separatum sacrae regni Hungariae Coronae adnexum corpus;178 hitherto the town had been a part of the Holy Roman Empire. The restoration of the royal land donation system throughout Hungary proper (to benefĳit the nobility) and the demands to re-establish the counties including their diaetalis reincorporatio, were the antecedents of the claim made after 1790 that the integrity of the ország should be restored. As we shall presently see, however, what the nobility was to understand in the nineteenth century by the ‘restoration’ of Hungary’s territorial integrity amounted, in fact, to a major discontinuity with the past. All in all, it is plain that for well over two and a half centuries after Werbőczy, neither his organic metaphor nor any other uses of corona exhibited any sign of development into a corporate political concept of the crown which comprised the king and the nobility.

172 Section 2. Transylvania, to which the counties of eastern Hungary had been attached in the 1540s, was to be consulted. 173 Section 3. In the South of Hungary and parts of Croatia, instead of the restoration of the counties, the monarch introduced a military frontier system under the Hofkríegsrat. 174 R. J. W. Evans, ‘Maria Theresa and Hungary’, in H. M. Scott, Enlightened Absolutism, London, 1990, pp. 199–200. 175 C. A. Macartney, Maria Theresa and the House of Austria, London, 1969, pp. 142f. 176 Endre Kovács, A lengyel kérdés a reformkori Magyarországon, Budapest, 1959, p. 57. 177 Regnum Hungariae in the ‘kingdom’ and emphatically not in the ország sense. Neither Croat nor Hungarian nationalists ever distinguished between the two senses of regnum and Maria Theresa’s gift to the kingdom became a Pandora’s Box between 1779 and 1918. Péter, ‘Verfassungsentwícklung’, p. 347. 178 Henrik Marczali, A magyar történet kútfőinek kézikönyve, Budapest, 1901, pp. 756 and 748 f., also Gyula Miskolczy, A horvát kérdés története és irományai a rendi állam korában, 2 vols, Budapest, 1927–1928, 1, p. 35 with robust Hungarian gloss. 52 chapter one

The Holy Crown Uses in Statute Laws and Government Instruments

Evidence bears out Eckhart’s observation that Werbőczy’s simile became a point d’appui of new political and constitutional claims only from about 1790.179 The critical point is, however, that the new uses of the organic simile occurred in constitutional discourse, notably in political rhetoric and legal literature rather than in statutory law. The references to the ‘Holy Crown’ in the Corpus Juris Hungarici are overwhelmingly about the visible Crown of St Stephen rather than about the invisible crown. The articles on the coronation, the Diploma and the election of the Holy Crown’s two Keepers180 all bear witness to the strength of the tradition attached to the jewel, of which we have already given a brief account. Whereas the constitutional role of the visible material crown can be properly attested through legal evidence, this is, apart from the uses of territorial integrity, missing for the new uses of the invisible crown. The point here is that, even after 1790, we do not fĳind in the Law book a single instance where the Holy Crown appears as a political corporation embod- ying the king and the nobility or the nation. Also, it is less than clear whether the crown was ever used by the legislator to express continuous independent statehood. Whenever the invisible corona appears in the Law book it follows the earlier uses. This is the case with Werbőczy’s organic simile which Art. XVI 1791 of Transylvania asserted by reference to the rights of the Transylvanian landed nobility. I have not found, however, a single instance of the Holy Crown membership idiom applied to persons rather than the territory anywhere in the whole Corpus Juris Hungarici. Given that large claims have been vested in the Holy Crown membership by politicians and historians, this omission is rather unexpected. Or, perhaps, this is exactly what we should expect. For the statute was an ‘agreement’ between the ország and the monarch who had no interest in giving hostages to the future. Following the established path of earlier centuries, apart from the territorial uses, the uses of ‘Hungarian Crown’ and ‘Holy Crown’ in the modern periods, refer either to the (common) monarch, or the person of the king, or the royal offfĳice. In Art. XIX 1596 the estates supplicated ‘his

179 Eckhart, Szentkorona, p. 290. 180 Tamás Katona published all the Laws concerning the Keepers and the protection of the Holy Crown from 1464 to 1928. See Appendix of his Korona, pp. 569–87. Even the republican Károlyi régime passed Néptörvény XXXI. On the safekeeping of the crown and the other regalia, see ibid., p. 580. the holy crown of hungary, visible and invisible 53

Majesty the Emperor’ for the preservation of the Free Towns’ liberty as they were [ipsi] peculium coronae suae majestatis. In the enacting clauses of the Hungarian Pragmatic Sanction, the so-called jus haereditarium suc- cedendi in Hungariae regnum et coronam was extended to the female line.181 There can be little doubt that ‘crown’ here refers to the majesty of royal offfĳice to rule and govern the kingdom. It clearly emerges from Article VII of 1790 that the landed property of the sacra regni corona for the maintenance of royal offfĳice was at the king’s disposal and had nothing to do with the diet.182 Even a century later, when in 1895 Prime Minister Baron Dezső Bánfffy argued in a submission to Franz Joseph that the Hungarian Holy Crown should be registered as the owner of Buda Castle, the monarch agreed, as Eckhart observed, ‘because in his view the crown, as the symbol of rule, could only mean the monarch and under no circumstances that special community of the monarch and the ország which was advanced by public law’.183 The crown stood for the monarch in the basic laws of the nineteenth century constitutional conversion. In April 1848 at the Staatskonferenz dealing with the draft bill concerning the re-incorporation of the Partium with Hungary, which was opposed by the chancellor of Transylvania, the view of the former Chief Justice Anton Cziráky prevailed: Conflicts between Lands of one and the same crown, as, for instance, those in relation to the Partium, can be lawfully resolved only by decision of the common monarch.184

181 Sections 5–9 Art. II 1723. 182 Árpád Károlyi pointed out in ‘Az 1848. III. törvénycikk történetéből’, that until 1848 the revenues of the crown were the royal revenues in toto. Although some distinctions were made between diffferent categories, they were technical rather than constitutional because the diet did not have a say in expenditure: Néhány történelmi tanulmány, Budapest, 1930, p. 511; Károly Miskolczy, Magyar Ország köz Joga, Eger, 1846, pp. 44–46, distinguishes various categories of crown property and revenue, they are all royal. Antal Cziráky notes in his Conspectus Juris Publici Regni Hungariae ad Annum 1848, Vienna, 1851, 2 vols (hereafter: Conspectus) in vol. 2, Caput XIV that the only fĳirm rule is the inalienability of property. 183 Ferenc Eckhart, A volt monarchia udvartartásának vagyona, Budapest, 1928 (hereafter: A volt monarchia), pp. 43–44. Eckhart meant, of course, by ‘public law’ the legal literature. Also, he emphasized that Buda Castle was the property of the ‘king’ as an institution, distinguished from the private property of the dynasty as well as other ‘crown properties’, like Gödöllö, which was ‘pure Hungarian state property’: ibid.. 184 ‘Diffferenzen zwischen Ländern einer Krone, wie die hier vorwaltende wegen der Partium, gesetzmässig nur durch den Ausspruch der gemeinschaftlichen Regenten entschieden weren können.’ On 8 April 1848, Az 1848-iki pozsonyi törvénycikkek az udvar elött, ed. Árpád Károlyi, Budapest, 1936, pp. 305–06. The editor disagreed, pp. 152–53. 54 chapter one

Law III of 1848, which ordained the creation of an independent responsible ministry for Hungary, emphatically maintained ‘intact the unity of the crown and the imperial connection’. Here, unmistakably, the rights of the Hungarian king were considered in conjunction with the responsibilities of Palatine István. The imperial crown was juxtaposed to ‘the crowns of his other Lands’, from all of which Ferdinand had abdicated, according to the Diploma of Franz Joseph.185 Section 7 of Law XII 1867, the Settlement law, repeated the Pragmatic Sanction: ‘the crown of Hungary is vested in the same monarch who also rules the Other Lands’. Law I 1875, ‘On Incompatibility’, stipulated that a member of the House of Representatives was prohibited from accepting any offfĳice which depends on ‘nomination by the crown’ (Section 1). Law XXIII 1901 afffĳirmed that Count Béla Széchenyi had been elected Keeper of the Hungarian Holy Crown because of his work ‘in the interest of crown and country’. It should not surprise us that, in the liberal age, Hungarian law followed the general European practice in crown uses. The imperial connection, however, produced a few peculiarities. The programme of the Committee of Nine, agreed between Franz Joseph and incoming Prime Minister Count István Tisza on army reforms in October 1903, referred to the political responsibility of the ministry which applied to ‘every act of the crown’. As the context involved the monarch’s reserved rights the ‘crown’ here referred to the ruler of the Austro-Hungarian Monarchy as a whole.186 The Treaty of Trianon enacted by Law XXXIII 1921 likewise understood by the ‘crown’ the sovereign’s rights of the whole Austro- Hungarian Monarchy (Section 177). These uses without exception followed patterns well established for centuries. Apart from the territorial uses of the Holy Crown, to which I shall soon turn, the only new crown use in the Corpus Juris Hungarici was a legal curiosity, nay oxymoron, born posthumously after the collapse of the Monarchy. Until 1918, justice was administered by the courts ‘in the name of His Majesty the King’ and, after Law I. 1920 had been passed ‘in the name of the Hungarian State’. The novel use came in with Law XXXIV 1930 which ordained that ‘the judicial

185 Preface of Law II 1867. 186 József Barabási Kun (ed.), Gróf Tisza István képviselőházi beszédei, Budapest, 1930 (hereafter, TIKB), 1, p. 751, see Edmund Bernatzik, Die österreichischen Verfassungsgesetze, Vienna, second ed., 1911, p. 706 (‘jede Handlung der Krone’). The programme was an agreement, a contract of sorts between the monarch and parliament’s majority (rather than statute law) in which the latter was compelled to recognize the reservata of the former. In another place the agreement referred to the legislature as ‘the crown and parliament together’ where the ‘crown’ stood for the rights of the king of Hungary. the holy crown of hungary, visible and invisible 55 power is exercised by the courts of State in the name of the Hungarian Holy Crown’.187 The central fact is that (at least before 1930) the Holy Crown did not become the Hungarian term for the ‘State’.188 From the1830s liberal constitutionalism aimed to carry out a conversion (átalakítás) of the whole constitution. The legal dualism of the mutually recognized rights and obligations of the crown and the ország was to be replaced by a system of public law based on the assumption that all public power had a single source, the State, whose impersonal regulations extended equally to everyone. As elsewhere in Europe, the ‘State’ grew out of status,189 in Hungarian álladalom,190 and from 1850, állam. In the new vocabulary, the ‘State’ was sometimes predicated on the Empire of Austria, which included Hungary, at other times on Hungary itself.191 The April Laws of 1848 referred to the liberal representative system introduced in Hungary as álladalom.192 Henceforth, the traditional intercourse between the crown and the ország acquired a new dimension with the enigmatic quodlibet of ‘Austria’ versus ‘Hungary’. Indeed it was the rival claims to statehood, culminating in the claim to Gesammt-Monarchie in the 1849 March Constitution and the Independence Declaration of the magyar álladalom, that the War in 1848–49 was about.193 After Világos, die Krone, in the enactments of the centralized Austrian State, referred either to the person of the autocrat or his rights. The ‘state’ now transformed the vocabulary of law and political discourse. Throughout the Dualist Era the Hungarian legislator invariably employed állam rather than crown or Holy Crown for the notion of legally

187 Section 1. Eckhart was justifĳied to note that this innovation was ‘the offfspring of the new legal literature’, Szentkorona, p. 265. Indeed, the Ministerial Motivation of the bill referred to the Holy Crown that ‘embodies the sovereignty of thousand years’ Hungarian statehood based on the ruler and the nation in its entirety: CJH, Márkus edn., Budapest, 1931, p. 469, n.1. 188 Eckhart, Szentkorona, pp. 263–64. 189 The estates claimed in 1790 that Transylvania was a part of status Hungarici, Eckhart found this early reference: Szentkorona, p. 264. 190 Állomány and közálladalom were possibly the earlier forms of status: see Béla Szabó, A magyar korona országainak státusjogi és monarchiai állása a pragmatica sanctio szerint, Pozsony, 1848, p. 5. 191 Hungarian authors frequently did both, sometimes in the same work: for example, Baron Zsigmond Kemény, Forradalom után, Budapest, 1908, pp. 9, 13, 53, 328, 371f; Pál Somssich, Magyarországnak és királyának törvényes joga, Vienna, 1850, pp. 78–79, 85, 88, 94f. 192 See Law XIII Section 3, XIV Section 3, XVIII Section 6, XX Section 8. 193 On this subject, see Péter, ‘Verfassungsentwicklung’, pp. 272–75 and 291–94. Paradoxically, Hungarian historians, axiomatically and sub specie aeternitatis, identify the Holy Crown with the ‘Hungarian State’ yet the ‘crown’ is entirely missing from the Independence Declaration, the very fĳirst authoritative document which asserted the Hungarian State principle (in 1849). 56 chapter one organized society. There was, nevertheless, one new class of crown uses, which was introduced in the Law book with the nineteenth century conversion of the constitution.

The Lands of the Hungarian (Holy) Crown

The crown became the territorial reference for the unitary Hungarian national state. To begin with a summary: before 1790 the rights of the ország were predicated on the territory of Hungary proper. After 1790 the diet of the ország claimed the right to legislate for the other Lands (regna) under the Hungarian crown. And from the 1830s the liberal nationalists called for all the Lands of the Hungarian crown to be united in a single governmental system. This claim was a part of the programme for the establishment of a Hungarian State. The claim was partly based on the liberal vision of civil society, which was to establish legal equality for all, and also on the ország’s historical rights.194 And history had to be subjected to heavy massage to support the claim to the State with its modern system of government. The medieval precept of reincorporatio with the Hungarian crown, through conversion of sorts, reappeared as the territorial and political integrity of the unitary Hungarian State based on the Hungarian language.195 This historic right argument for the creation of a Hungarian State, which was to replace the system of three regna under the crown, amounted to constitutional innovation by reference to pre- existing right.196 The April Laws of 1848 ordained the creation of ‘the complete álladalmi unity of the territory under the Hungarian Holy Crown’.197 Thus when the Law ‘On the Unifĳication of Hungary and Transylvania’

194 Ibid., pp. 262–65. Kossuth, then leader of the Opposition, in December 1847 questioned the very existence of Croatia as a Land. He insisted at the diet that under the Hungarian Holy Crown only a single historical nation existed, the Hungarian, in order to claim the right to a single common legislature. 195 Hungarian nationalists forgot the historical background when they claimed ‘the principle of one crown, one state, one language’, wrote Eckhart, Szentkorona, p. 277. See also data on the subject in Gyula Szekfű, Íratok a magyar államnyelv kérdésének történe- téhez, Budapest, 1926, pp. 214, 550, 588. The diet on 11 June 1790 resolved that in the schools Hungarian be taught in all the parts that belong to the Hungarian crown. 196 In a very similar fashion, Croat nationalists claimed the trojedina kraljevina (the Triune Kingdom) which comprised three regna: Croatia (the medieval Slavonia), the three countries of lower Slavonia (which before the Turkish occupation had belonged to Hungary proper) and Dalmatia. 197 Law XVIII Section 6. The Proclamation of the diet (probably drafted by Kossuth in the fĳirst days of April 1848) announced: ‘Diverse nations are united under the Hungarian crown, they all work on the great building of the álladalom’: István Barta et al. (eds), Kossuth Lajos összes munkái, 1948–, 15 vols (hereafter: KLÖM), 11, p. 698. the holy crown of hungary, visible and invisible 57 confĳirmed the traditional precept that ‘Transylvania belongs to the Hungarian Crown’,198 in fact, it asserted a new claim. The Law was to defend the territorial integrity of a fundamentally reorganized kingdom. Law XVIII ‘On the Press’ made it an offfence to incite against ‘the complete state unity of the territory under the Hungarian Holy Crown’ (para. 6). In 1848 the attempt to unify the three regna of the Hungarian Crown, notably Hungary proper, Croatia and Transylvania, turned out to be a failure. But the aim was pursued, on the basis of the April Laws in 1861, and was successful in 1867 when by virtue of the constitutional settlement (Ausgleich) Hungary attained Home Rule and centralized government over the territory of what Ferencz Deák termed ‘the Lands (országok) of St Stephen’s Crown’.199 The crown was used consistently by the law to express the territorial integrity of the enlarged Hungary from 1867. Franz Joseph referred to himself in his Diploma Inaugurale as ‘the lawful and true successor to the throne and crown of Hungary and its Associated Lands’. The ‘Lands of the Hungarian Crown’, a stock phrase of the Settlement Law,200 and (from 1896) ‘Holy Crown’ remained the territorial reference of legislative enactments to the end of the Monarchy. Law XXX 1868, a ‘common fundamental law’, declared that ‘as Croatia and Slavonia in law and in fact have for centuries belonged to the Lands of St Stephen’s Crown’, they reached the following agreement with Hungary: ‘Hungary and the Lands of Croatia, Slavonia and Dalmatia form one and the same state complex with respect to the Other Lands under His Majesty’s rule as well as other countries’ (§1). Law L 1879 declared ‘citizenship (állampolgárság) to be one and the same in all the Lands of the Hungarian Crown’ (§1). In 1896 szent korona, as a new form, came into regular use: Law VII, which commemorated the founding of the Hungarian State, referred to the ‘legislature of the Lands of the Hungarian Holy Crown’.201 Law XXXI 1912 allowed, under some strict conditions, ‘the employment of the honvédség [a second line force] outside the Lands of the Hungarian Holy

198 Preface to Law VII 1848. The diet asserted the competence of parliament to legislate for Croatia by referring to the Hungarian crown, which represented the unity of the magyar közálladalom, KLÖM, 11, p. 699. It was implicit in the April Laws that regnum in its ország sense was coexistensive and interchangeable with the crown or regnum in the kingdom sense, but see note 136 above. 199 See Péter, ‘Verfassungsentwicklung’, p. 348 n. 434. 200 Law XII of 1867, see preamble, Sections 1, 18, 27, etc.. For instance Section 19 referred to parliament as the ‘diet of the Lands of the Hungarian crown’. 201 Section 1. The daily, Magyarország, reporting on the passing of the bill in the House, regretted the absence of the king in the session: ‘as however the Holy Crown was present and wheresoever is this glorious treasure, there is the kingdom of Hungary’, 9 June 1896, p. 1. 58 chapter one

Crown’.202 Franz Joseph sometimes adhered to the new rigeur, other times he did so with a twist in the tail. In his letter to parliament via the prime minister on 22 September 1903 the monarch referred to szent Koronám országainak integritása, i.e. ‘the integrity of the Lands of my Hungarian holy Crown’.203 The old bipolarity between ‘crown’ and ‘nation’ never disappeared from public life. When the Austro-Hungarian Monarchy was about to disintegrate in October 1918 the government bill submitted in the House to separate Hungary from Austria declared: ‘The Lands of the Hungarian Holy Crown constitute an önálló állam which is independent of all other countries.’204 In the interwar years Hungary did not accept the Treaty of Trianon, which transferred over two-thirds of the kingdom’s territory to Hungary’s neighbours, and the law employed the Holy Crown to justify the (very temporary) successes of the ‘territorial revisionist’ policy pursued by successive governments. When between 1938 and 1940 the southern strip of the former Highland (Slovakia), Carpathian Ukraine and the northern part of Transylvania were reattached to Hungary, according to the Laws XXXIV 1938, VI 1939, and XX 1940, these territories ‘returned to the body of the Hungarian Holy Crown’.205 It is now time to sum up on the legal side of our enquiry. In the laws of modern Hungary the invisible crown followed the well-trodden path in standing either for the monarch or the royal offfĳice. Alternatively, the law employed the crown to defĳine territorially the modern centralized political system. Even in this new territorial sense the crown did not stand for the ‘State’ but, rather, ‘piggy-backed’ on it.

The Inveterate Crown Uses

Contrary to what one might have expected, it was not constitutional law but political rhetoric and legal discourse within the Law Faculties that

202 Section 2. The predecessors of this law on the honvédség, Laws XLI 1868 (Section 3) and V 1890 (Section 2), used ‘Hungarian crown’ rather than ‘Holy Crown’. The editor of the CJH volume on the 1912 Laws observed that the latter designation was constitutionally more appropriate (p. 163, n 3). 203 TIKB, I, p. 732. 204 Preamble to the bill On the Austro-Hungarian Personal Union, 20 October 1918: Emma Iványi (ed.), Magyar minisztertanácsi jegyzőkönyvek az első világháború korából 1914–1918, Budapest, 1960, pp. 516–17. 205 Eckhart observed that the use of the term by the law followed historical tradition, Szentkorona, p. 288. Undoubtedly it did; however, the tradition had been rather less than hundred years old. the holy crown of hungary, visible and invisible 59 were the vehicles for the new ideas associated with the crown at every turn in their nineteenth century history. And even here caution is in order. For even outside the law, in the overwhelming majority of its occur- rences, the crown appeared in its well-established senses denoting either the (common) monarch or the (Hungarian) royal offfĳice.206 A few examples will do. In Kossuth’s rhetoric, the crown frequently stood for the monarch and he did not even separate consistently the Hungarian crown from the others.207 Count István Széchenyi hoped in 1859 that a new pactum conventum could be made between the crown and the nation.208 Ferencz Deák had the rights of the Hungarian king in mind when he wrote that in 1723 ‘the nation had transferred the crown and its rights to the dynasty and not to the Austrian provinces’.209 On the other hand, in Deák’s May Programme in 1865, ‘the crown’ referred to the person of Franz Joseph as the holder of all his (undistinguished) monarchic rights.210 Prime Minister Gyula Andrássy regularly used the ‘crown’ in this sense. He admitted in the House to having interfered with Austrian afffairs during the Hohenwart crisis, ‘acting as the crown’s adviser’ rather than as a Hungarian minister.211 He viewed Austria-Hungary as a monarchic union of Lands with legal connections between ‘the crown and the two states of the Monarchy’.212 In political tracts the crown habitually used for the monarch; in the large numbers of Kákai Aranyos pamphlets the crown stood for the common monarch.213 These habitual uses of language went on in

206 ‘The separate existence of Transylvania is in our interest’, wrote István Bocskai in his testament in 1606, ‘as long as the Hungarian crown is held by a nation, the German, stronger than ourselves’: Erdély öröksége, ed. László Makkai, Budapest, 1993 (reprint), 3, p. 118. Bocskai here had the royal offfĳice in mind but the crown frequently referred to the king. Eckhart held that the use of the crown as a synonym for king was of foreign origin: Szentkorona, p. 261. 207 See Kossuth’s speech in County Zemplén on 24 January 1831, KLÖM, 6, p. 217; another example: ‘the crown of His Majesty’ in the Pesti Hírlap (1842), Kossuth Lajos, Íratai, ed. Ferencz Kossuth, Budapest, 1906, 12, p. 254. 208 Miksa Falk, Széchenyi István gróf és kora, Pest, 1868, p. 327. 209 Deák, Ein Beitrag, p. 147. In another place Deák, again referring to the ‘transference of the crown’, observed that the crown meant the ‘Hungarian state’, p. 104. 210 Deák wrote on the joint management of the common afffairs: ‘the two deputations with each other and with the crown reach agreement’, DFB, 3, p. 428. 211 In the House of Representatives on 7 November 1871: Gróf Andrássy Gyula beszédei, Budapest, 1893, 2, p. 523. 212 Andrássy Gyula gróf beszéde a véderő-törvényjavaslat tárgyában (5 April 1889), Budapest, 1889, pp. 23, 29, 36f 45; see, also, Péter, ‘Verfassungsentwicklung’, pp. 513n.1286 and 525n.1354. 213 For instance ‘II-ik Kákai Aranyos’ pseud. [Kornél Abrányi, the younger], A leláncolt Prometheuszok, Budapest, 1881, pp. 33, 40, 108, 150. The ‘crown’ is habitually juxtaposed to the ‘nemzet’. 60 chapter one the twentieth century214 and we fĳind them in parliamentary politics even after ‘Holy Crown’ began to replace ‘Hungarian crown’ in other contexts. Count Gyula Andrássy the Younger, in a proposal to the Liberal Party, continued with the old bipolarity, juxtaposing ‘the power and shine of the Holy Crown’ and ‘the rights of the nation’.215 ‘The mutual trust between the crown and the nation’ was a stock phrase in the vocabulary of politics.216 As the ‘crown’ here was (or could be) the king of Hungary this usage incurred no objection from any quarters. It was diffferent with the description of the advisory body for the common monarch, alternatively called after 1867 ‘common ministerial council’ and ‘common crown council’.217 This use of the ‘crown’, by emasculating the claim to a legally sovereign Hungarian State, raised the hackles of many jurists in the early years of the twentieth century.218 Turning to the new uses to which the crown was put in political rhetoric, it is clear that the organic simile found in the Tripartitum was a potent source.219 Indeed, most of the new traditions that unfurled (or were invented) between the rule of Joseph II and the First World War were read into Werbőczy rather than into the innovations of 1401 and 1440.220

The Extension of the Holy Crown Membership

From Werbőczy’s time up to the nineteenth century membership of the Holy Crown, whenever it was predicated on persons rather than territory, applied to the benefĳiciaries of royal land donation rather than the nobility as such; the bulk of the nobility, the armalists and the curialists, were not yet considered members.221 The use of the metaphor could serve

214 For instance: ‘Egy Dobzse-párti’, in Se Bánfffy, se Wekerle, Budapest, 1903, p. 3 (a Korona). 215 23 September 1903, TIKB, 1, p. 733. 216 For instance Francis Joseph’s letter to Prime Minister Khuen Héderváry on 22 September 1903, ibid., p. 732. 217 Protokolle des Gemeinsamen Ministerrates der Österreichisch-Ungarischen Monarchie (1914–1918), ed. Miklós Komjáthy, Budapest, 1966, pp. 25, 46, 61, 83f, 89f. 218 One jurist, an adherent of the ‘doctrine’ of the Holy Crown, went livid about this use and and also objected to the use of the ‘crown’ for the king: Gejza Ferdinándy, Korona és monarchia, Budapest, 1903, pp. 7–11. 219 See pp. 45–46 above. 220 Not much was known about the ideas of the political events in 1401 and 1440 before modern scholarship brought them to light, see pp. 30 and 39–40 above. 221 Illés Georch closely follows Werbőczy’s Tripartitum. In his popular legal manual he points out that the royal donation letter does not have to mention even the nobility ‘but only the landed estate (fekvő jószág), by virtue of which we become members of the Holy the holy crown of hungary, visible and invisible 61 conservative purposes. In closing the diet in 1805 Emperor-king Franz praised the deputies: ‘You have understood the danger which threatens the Holy Crown of which you are members.’ Archduke Charles Ambrose, Primate of Hungary, noted at the 1808 diet the need to maintain harmony between ‘the head of the Holy Crown, the king, and its members, the status et ordines’.222 In opening the diet in 1825 Archduke Palatine Joseph welcomed the SS and OO ‘together with whom I share membership of the Land’s Holy Crown’.223 The Holy Crown membership in these cases did not serve Werbőczy’s una eademque nobilitas principle based on fĳidelitas, service and land-donation; it was about partnership in the diet. However, county deputies (and even those representing absentee magnates), as Arts. LXII. of 1625 and VII. of 1723 confĳirmed, had to be owners of donated land, possessionati. Thus, the shift of context may not be regarded in itself as innovation. Soon, however, Werbőczy’s metaphor became an argument for noble democracy. This change had something to do with the new voting practice, introduced in the counties by the government in the late 1810s which gave the landless nobility the right to vote at least at the elections to the diet.224 Crown membership was now tacitly extended from the possessionati to the whole body of nobility, emphatically underlining the political equality between poor and rich nobles225 as well as the separation between the noble populus and the plebs. Because of the

Crown’. The ‘landless nobles’ (jószágtalan nemesek), possessed only armales, and Georch does not refer to them as crown members. Further on he notes that Art. 7 of 1723 ordered the counties to send nobiles possessionati to the diet: Honnyi törvény, 3 vols, Posony 1804– 09 (hereafter: Honnyi törv.), 1, pp. 28, 32 and 36. A century later, however, the leading historian, Marczali, was reprimanded (p. 96 below) for writing that Werbőczy held only the landed nobility to be members of the Holy Crown, not the rest as they did not enjoy equal liberty and had to pay tax: Ung. Verfassungs., p. 28. From the considerable recent literature on the curialists and armalists see particularly the studies of József Hudi listed in László Kósa’s Hét szilvafa árnyékában, Budapest, 2001, pp. 274–75. Kósa’s work is a monograph on the social conditions of all groups of the petty nobility before 1848. The volumes of István Hajnal Circle, Rendi társadalom – polgári társadalom, 1987–2000 (eleven volumes so far) is a storehouse of information on the subject. 222 Eckhart, Szentkorona, pp. 291–92. 223 ‘… qui Vobiscum una Sacrae Regni Unius Coronae comembra sunt’: Felséges Első Ferencz Ausztriai császár, magyar és cseh ország koronás királyától … rendeltetett Magyar Ország gyűlésének Jegyzőkönyve, Pozsony, 1826 (hereafter: Felséges Első Ferencz), p. 48. 224 The government (not at all interested in democracy) by this move tried to undermine the political influence of the bene possessionati, the well-to-do gentry. See Mihály Horváth, Huszonöt év Magyarország történelméből, Budapest, 1868, 1, pp. 27–28, 106. 225 By the end of the eighteenth century well over two-thirds of the nobility were either curalists or armalists: Ferenc Maksay, Le pays de la noblesse nombreuse, Budapest, 1980. 62 chapter one socially exclusive character of the crown metaphor, liberals applied it less frequently to persons than their opponents. Deák did not use it all and Széchenyi226 and Eötvös227 did so only mockingly. Wesselényi and Kossuth treated crown membership with respect but they predicated the metaphor on the ‘nation’ (a claim which, as we shall see, was not new) and they used it to further reform (which was, however, new). Baron Miklós Wesselényi, a constitutional radical, argued in the Balitéletekről228 in 1831 that the king’s right of escheat could be removed by legislation because: The principle is clearly expressed by the the Tripartitum in Pt. I Tit. 10229 that the true and legitimate successor of every baron and noble is the Hungarian crown by which we ought not to understand the person of the king on its own and in its particularity but the personality of the nation in its entirety which [the term] membrum sacrae coronae exhibits.230 In a manuscript composed in 1833, Kossuth placed the crown concept in the service of social reform. He too believed, he started defensively, that the basic rights, summarized by Werbőczy in the Tripartitum Pt. I Tit. 9,231 were immutable in that they could not be taken away from the nobles, members of the Holy Crown: But I ask what would the Hungarian noble lose from his rights if our law would declare that nobody could, with the process of law, interfere with the

226 Széchenyi in the Stadium (1838) referred sarcastically to his condition that ‘for the honour of being a member of the Holy Crown or a part of St Stephen’s mantle, which is in fact not true either physically or morally, I am not an owner, however, only an usufructu- arius’, quoted by Eckhart, Szentkorona, p. 294. Széchenyi scofffed at the visible crown of St Stephen’s as well, see quotation in Radnóti, ‘Üvegalmárium’, p. 62. 227 Eötvös observed in Reform (1846) that ‘the Hungarian people are not only under the king of Hungary but subjected to the tyranny of the Hungarian crown’s fĳive hundred thousand members’: József Eötvös in Reform és hazafĳiság, ed. István Fenyő, Budapest, 1978, 1, p. 355. Elsewhere Eötvös referred to the ‘gallant members of the Holy Crown taking up their cudgels’ at elections, see ibid., p. 486. In his The Village Notary, a didactic novel from 1845, the Anglo-maniac ‘James’ Bántornyi founds an Association for the Prevention of Cruelty to Animals but because of the Tripartitum the nobles were exempted from its oversight: otherwise ‘a landed proprietor and a member of the Holy Crown would lose his high position if he were forbidden to whip his horse to his heart’s content’: English translation by O. Wenckstern, London, 1850, 3, p. 163. The old Eötvös softened up his attitude: in 1864 he merely found ‘peculiar’ the crown membership idea: István Fenyő et al. (eds), Vallomások és gondolatok, Budapest, 1977, p. 586. 228 Published in Bucharest and Leipzig in 1933. 229 The king’s right of escheat to landed property. 230 Wesselényi, Balítéletekről, pp. 269–70. 231 In the Primae nonus Werbőczy listed the four cardinal privileges of the nobility, see note 154 above. the holy crown of hungary, visible and invisible 63

Hungarian peasant, his person and possession, that he too possesses land property, that he too is a member of the nation and the Holy Crown.232 The aim of the liberal programme of creating a Hungarian civil society was to close the gap between the populus and the plebs by ‘uniting in law and interest the whole Hungarian people’.233 The abolition of serfdom and the fĳirst steps made in 1848 towards legal equality were truly popular reforms that attracted the loyalty of the towns and large sections of the peasantry to the new political order. There were two other potent factors at work. The experience of serving in the nemzetőrség, the militia, created by Law XXII. of 1848, and later in the honvédség during the Independence War, tied masses of ordinary Hungarians to the nobility-based nation. Later, the popular song ‘Lajos Kossuth sent word …’ may have helped national integration as much as the earlier promise of legal equality. Participation in politics through the franchise at local and general elections was another factor. Here caution is in order. ‘Democracy’, a popular slogan in the 1840s, asserted the principle of legal equality rather than that of majority rule or the conferment of political rights on the adult population. The efffect of participation as an aid to political integration was, therefore, limited. Both the nemzetőrség234 and the franchise235 were open only to the relatively well to do and the educated; service in the honvéd- ség, although nationally divisive was, however, not. Uncertainties over the extent of political integration after 1848 appeared in the uses of the crown membership metaphor. Imre Zsarnay, deputy alispán of Torna, argued with general support in the House at the 1861 diet, that because the diffferences between the populus and the plebs had been abolished in 1848, the law ought clearly to recognize ‘that all citizens inhabiting the country are members of the Holy Crown’ and must therefore be treated equally in penal procedure.236 Zsarnay’s

232 The fĳirst part of the passage (to which I shall return) runs: ‘The Hungarian noble is a member of the Holy Crown which is in turn, the symbol of national majesty and in this way the Hungarian noble is a part of the legislative power; he possesses the right to own land; without the process of law, not even the king can interfere with his person and possession; can freely dispose of his property, etc. All these rights rest on national majesty, which arise from the basic structure of life in society, and are therefore sacrosanct, unchangeable and indefeasible. But I ask … etc.’: KLÖM, 6, p. 378. 233 Preamble to the April Laws of 1848. 234 Set out in Section 1, Law XXII of 1848. 235 Para 2, Law V of 1848. 236 In the debate on the committee report of the Chief Justice Conference on judicial procedure, 20 June 1861, Az országgyűlés képviselőházának naplója (hereafter: Képv. napló), 2, p. 170. Zsarnay in another speech also applied the metaphor to the nationalities, ibid., p. 298. 64 chapter one view was not quite shared by Emil Récsi, a leading jurist, who in his 1861 textbook connected membership of the Holy Crown with the exercise of political rights.237 Perplexingly, both views survived in political discourse. The crown metaphor was used to support the introduction of general conscription in the House in the summer of 1868. The committee report on the three defence bills,238 drafted by the rapporteur, Károly Kerkápoly, argued that before 1848 all members of the Holy Crown had been obliged to perform military duties and that, because the 1848 Laws ‘had endowed the whole population with membership of this crown’, military service had become equally everybody’s duty.239 The leading 48er, József Madarász, disagreed. He pointed out that the 1848 Law on the nemzetőrség had extended the obligation only to those who quali- fĳied.240 But undisturbed, Kerkápoly reiterated: in 1848 all inhabitants had become members of the Holy Crown because the law in 1848 had opened the possibility for everybody to fulfĳil the conditions of membership.241 It was not difffĳicult to extend crown membership to the whole population with respect to duties; it was more difffĳicult to do so concerning political rights. Crown membership as a metaphor for the political community usually turned up in legal works and in political pamphlets in connection with the right to vote.242 Sebő Vukovics, a Left-centre member, in the debate on the revision of the electoral system, argued in the House that until 1848 only the privileged classes had possessed the vote and thereby membership of the crown; after 1848, however, all those who were given the right to vote, the pays légal, had to be regarded as ‘members of the crown in whom popular sovereignty was vested’.243 In the end, membership was neatly separated from the franchise;244 thus it might be claimed

237 Emil Récsi, professor at the Law Faculty in Pest, Magyarország közjoga Buda-Pest, 1861 (hereafter: M. közjoga), pp. 287, 307 and 326. Per contra, the rising jurist, Károly Csemegi in a baroque flourish declared in 1862 that the 1848 Laws had placed the whole nation ‘in St. Stephen’s heirloom’: Károly Edvi Illés et al. (eds), Csemegi Károly művei, 2 vols, Budapest, 1904, 1, p. 130. 238 They became Laws XI, XLI and XLII of 1868. 239 20 July 1868, Az országgyűlés képviselőházának írományai, 5, p. 164. 240 30 July 1868, Képv. napló, 9, p. 290. 241 4 August 1868, ibid., p. 420, see DFB, V, pp. 421–22. As minister of the crown, Kerkápoly later repeated that the Law had endowed ‘millions of people’ with crown membership, 8 March 1873, Képv. napló, 5, p. 377. 242 For example, Ignácz Kuncz, Az államélet főbb mozzanatai tekintettel a magyar köz- jogra, Pécs, 1870, p. 62; [Elek Jakab] Tisza Kálmán, Budapest, 1978, p. 68. 243 24 February 1872, Képv. napló, 21, p. 271. 244 Gyula Schvarcz, the scholar-politician, criticized the views of the jurist István Kiss on crown membership, which conflicted with the principle of civil society, ‘Tanulmány a magyar államjogi irodalom újabb termékeiről’, Magyar Igazságügy, 27, 1887, esp. p. 352. the holy crown of hungary, visible and invisible 65 that the whole nation and the crown ‘entwined with each other, according to the teaching of Werbőczy’, under Franz Joseph, ‘the most constitutional crown head’245 (while the franchise was kept narrow). This may have only been whistling in the dark; rhetorical flourish could not paper over political rifts. When at the height of the conflict between parliament and the crown over army rights Prime Minister Kálmán Széll, heading only a government in resignation in June 1903, surmised in the House that ‘the crown had always been a part of the nation as the nation was a part of the crown’, he added the real message that whenever they had parted, it had turned out to be a disaster for both.246 These passages, in which the crown was associated with the ‘nation’, the ‘constitution’ and ‘sovereignty’, reveal that the nineteenth- century innovations went much deeper than the social enlargement of membership.

The Holy Crown, the Nation and the Constitution

The shift to the vocabulary of modern politics amounted to a radical departure from Werbőczy’s ideas on the uses of the Holy Crown. Antecedents went back to the eighteenth century. For Werbőczy the majestic rights resided in the Holy Crown, the royal offfĳice, and were, consequently, vested in the legitimate, crowned king. The ország, as we have seen, was also a repository of rights and it became emphatically so after 1526 in its conflicting relationship with the Habsburg crown. One manuscript pamphlet, written anonymously by a canon in 1765, was very popular at the diet but distressed the queen so the authorities committed it to the flames in Pressburg. The pamphlet claimed that not only the king but the Status et Ordines as well were in possession of the rights that resided in the Majestas Sacrae Coronae Hungaricae.247 The

On Schvarcz’s conception of civil society see ch. 3. of György Miru’s unpublished dissertation, ‘Polgárosodás és alkotmányos átalakulás Schvarcz Gyula politikai gondolkodásában’, Debrecen, 1997. 245 B. Gusztáv Beksics, ‘I. Ferencz József és kora’, in Sándor Szilágyi, A magyar nemzet története, Budapest, 1898, 10, p. 517. 246 On 25 June 1903, Képv. napló, 17, p. 10. 247 The authorities set the police on fĳinding the author, without success. He probably was György Richvaldszky, canon at Esztergrom whose Vexatio dat intellectum, written in 1765, was published in 1785. See Győző Concha, ‘A Vexatio dat intellectum cimű röpírat 1765-ből’, in Hatvan év tudományos mozgalmai között (hereafter, Hatvan év), 2 vols, Budapest, 1928, 1, pp. 202–12. 66 chapter one radicalism of this MS could not have been an isolated case. The crown’s servants and the dynasty’s supporters were not idle either in drawing political conclusions from the organic metaphor. They defended the rights of the ‘head’ against the encroachments of the ‘members’. Mihály Bencsik, law professor and authority on the Tripartitum at the University in Nagyszombat, argued that because members had to follow the head, only Catholic nobles should be recognized as members of the crown; non-Catholics, being disloyal, should be deprived of their political rights.248 By and large, it was from 1790 that the rights of the diet, which Werbőczy’s passage does not even mention, became connected with Holy Crown membership. The collapse of Joseph II’s system marked the naturalization of a new vocabulary of law and politics. The critical innovation was the emergence of the term and the concept of the constitution itself. Hungary’s educated nobles, like other élites in eighteenth-century Europe, discovered in reading Montesquieu’s Esprit des lois (1748), a very popular book in the country, that they possessed a ‘constitution’ rather than just a collection of customary rights sanctifĳied by immemorial tradition.249 The ten years’ rule of Emperor Joseph II was branded as ‘unconstitutional’. When in 1790 St Stephen’s crown was brought to Buda250 it was seen as the fulcrum of ‘Hungarian liberty’. From this time, the Holy Crown became the palladium of the magyar nemzet’s (Hungarian nation) constitution.251 Once more, the visible and the invisible crown, combined and undistinguished one from the other, provided the referent for a new notion: the palladium of the constitution. The ‘constitution’, in contrast to most uses of Verfassung, was, of course, a normative term. For Joseph II’s rule was held to be ‘unconstitutional’ because he had dodged diaetalis coronation,252 a precondition of which was the taking of the Oath and the issuing of the Diploma by which royal rule became ‘constitutional’. In the same turbulent years, a largely unnoticed253 subtle shift, a reversion of sorts, occurred in political discourse concerning crown

248 On Bencsik, see Eckhart, A jogi kar tört., pp. 12–16, idem, Szentkorona, pp. 300–01. 249 László Péter, ‘Montesquieu’s Paradox on Freedom and Hungary’s constitutions 1790–1990’, History of Political Thought, 16, Spring 1995, pp. 79–82; Éva H. Balázs, Hungary and the Habsburgs 1765–1800, Budapest, 1997, pp. 134–42. 250 On the movement of the nobility in 1790 see C. A. Macartney, The Habsburg Empire 1790–1918, London, 1968, pp 137–42; László Kontler, Millenium in Central Europe: A History of Hungary, Budapest, 1999, pp. 218–20. 251 Péter, ‘Verfassungsentwicklung’, p. 250. 252 See also p. 31 above. 253 Eckhart, however, noticed it in Emil Récsi’s work: Szentkorona, p. 311. the holy crown of hungary, visible and invisible 67 membership. Before this change the grantee or donatarius, called a noble and member of the Holy Crown by virtue of the donation, had appeared (personally or through a deputy) at the diet to make laws. After the shift, a noble by virtue of his participation in law-making was said to be with a sleight of hand, a member of the Holy Crown. This change of signifĳicance took place simultaneously with the extension of membership socially downwards, a process which I have already described.254 All in all, by the 1830s the claim was fĳirmly established (although not yet general) that the whole nobility, because of their political rights, were members of the Holy Crown. As the following examples illustrate, ‘legislation’, ‘rights of majestas’, ‘national rights’, ‘state rights’ and ‘sovereignty’ were incrementally associated with Holy Crown membership. An early example of political rights being deduced from crown membership dates from 1787. In their memorandum to the sovereign, the Transylvanian nobility, in listing their gravamina, associated their membership of the Holy Crown with their privileges and even the right to participate in legislation.255 In 1811 the Hungarian diet took the view that the fĳiscus, in acting for the king, was also acting for the crown of which the estates were a part.256 At the next diet in 1825 the personalis argued from the Chair, against the estates who wanted to set up a fĳiscus for the ország, that the move was unnecessary because ‘the royal fĳiscus acted for the crown which does not only include the king as its head but also the nobles of the ország as its members’.257 As we have seen, Baron Miklós Wesselényi argued in 1831 by reference to the Tripartitum258 that the king’s right of escheat could be removed by legislation.259 Also, he identifĳied membership of the Holy Crown as the ‘personality of the nation’.260 Wesselényi’s claim was an early example of inferring political rights from crown membership. In his political rhetoric,

254 See pp. 60f above. 255 Oscar Meltzl, ‘Die Gravaminal-Vorstellung des siebenbürgischen Adels an Kaiser Joseph von Jahre 1787’, Archiv des Vereins für sibenbürgische Landeskunde, N.F., 21, Hermannstadt, 1887, pp. 367–440 (p. 372). 256 Quoted by Ereky, Jogtört.tanulm., 1, p. 390n.1, but this is not a clear example as the offfĳice, among its other responsibilities, was dealing withfĳiscalitas and caducitas. 257 Felséges Első Ferencz, p. 126; and Felséges Első Ferencz … írásai, Pozsony, 1826, pp. 60–61. This is a better example than the previous case (see note above) because the disputed point concerned the administration of justice. 258 Published in Bucharest and Leipzig in 1833. 259 Werbőczy explained fĳiscalitas, royal escheat in Pt. I Tit. 10. 260 Balítéletekről, pp. 269–70. 68 chapter one

Kossuth made similar deductions. He wrote in a minority report in respect of the instruction of the deputies in County Zemplén in 1832: When we look at the origins and developments of our system of legislation in historical and status terms we are convinced that not only are all nobles members of the Holy Crown, which represents all national rights and consequently they truly participate in legislation, but also that participation is every noble’s right and duty.261 Later Kossuth in an unpublished MS repeated the flourish: The Hungarian noble is a member of the Holy Crown, which is, in turn, the symbol of national majesty and in this way the Hungarian noble is a part of the legislative power.262 Both examples are from Kossuth’s early career. In the 1840s, the years when Kossuth rose to political prominence, he did not use crown membership in putting together his reform programme with the sole exception of the crown’s territorial integrity.263 Kossuth followed general practice. However, after állam (the State) became fĳirmly established in the vocabulary of politics during the 1848 revolutions, the relationship between korona and állam moved closer. Baron József Eötvös wrote in 1865, on the eve of negotiations with Franz Joseph that ‘we ought to steer clear of any step which surrenders the state independence of the Hungarian crown’.264 Deák in his Beitrag identifĳied corona sometimes with the ország (in the kingdom sense), at other times with magyar állam, by which he understood the rights of the monarch as king of Hungary.265 Living in a very diffferent mental world, a champion of municipal autonomy asserted that the people (before 1848 only the populus, i.e., the members of the Hungarian Holy Crown), through the autonomous counties, ‘personally exercised supreme majestic rights’.266 István Toldy held more widely shared views: ‘The “Crown” meant state sovereignty; king and nation—all nobles being members of the Holy Crown—were the bearers

261 KLÖM, 6, p. 331. 262 Ibid., p. 378. For the full quotation see note 232 above. 263 For instance, in the debate on the bill on honosítás (naturalization) at the diet Kossuth predicated ‘legislative sovereignty towards Croatia’ on the ‘domains of the Hungarian Holy Crown’, on 27 January 1847, KLÖM, 11, pp. 479, 480. 264 From his diary on 7 July 1865, Imre Lukinich (ed.), Báró Eötvös József, Naplójegyzetek —gondolatok 1864–1868, Budapest, 1941, p. 119. 265 Ein Beitrag, pp. 104 and 147; and on p. 122 Deák referred to the Hungarian state as: ‘the united will of the king and the nation’. 266 ‘Kunágoti’ Endre Vertán, Képviseleti és önkormányzati rendszer vonatkoztatva hazánkra, Arad, 1865, pp. 13–14. The author held all citizens (since 1848) to be ‘members of the Hungarian Crown that is part of the supreme power directly and personally’, p. 258. the holy crown of hungary, visible and invisible 69 of this sovereignty’.267 The same claim was explored further in 1869 by the learned Left-Centre backbencher Ignácz Ghyczy in the House: the people were always sovereign in the constitution because the nobles, the populus, ‘by being described as members of the Holy Crown, were emphatically a part of the sovereignty which inhered in the Crown’. And in 1848 the nobility, by letting everybody into the constitution, ‘shared the attributes of sovereignty with the whole people’268 (he did not, of course, mean women as well). Per contra, Sebő Vukovics, another Left-Centre politician, thought that only those who had the franchise were Holy Crown members and thereby had a share of popular sovereignty.269 Gyula Győrfffy, Indepententist, used crown membership in rejecting the 1867 constitutional Settlement;270 per contra Gyula Andrássy, the Younger, praised the Settlement as it preserved ‘the thousand years’ sovereignty of St Stephen’s Crown’.271 The Independentists who fought in the House against the government’s motion to suspend the immunity of a member on their side shouted in the debate that the Minister of Defence, Baron Géza Fejérváry (in defending the motion) ‘did not have the foggiest’ what membership of the Hungarian Holy Crown meant.272 That might have been; was there, however, anybody else who did?273 The new political

267 This work is a political history: István Toldy, Régi Magyarország, Pest, 1868 (hereafter: Toldy, Régi M. orsz.); p. 233, see also p. 222. 268 On 6 July 1869 in the House arguing against the bill on the judicial power, Képv. napló, 2, pp. 381–82. The crown was occasionally even equated with ország (an untutored view). Boldizsár Halász, Independentist, opined that the view that interkalaris revenues were the king’s really meant that they belonged to the ország ‘because in Hungary the king and the crown always meant the ország’ on 15 February 1870, Képv. napló, 5, p. 355. 269 On 24 February 1872 in the House, Képv. napló, 21, p. 271. 270 The deputy’s point was that Law XII of 1867 abandoned legislative sovereignty because it was shared with another State (i.e. Austria). But, he went on, sovereignty cannot be alienated, ‘because we share that right only with the crown’, on 22 March 1892, Képv. napló, 1, p. 317. 271 Count Gyula Andrássy, Az 1867-iki kiegyezésről, Budapest, 1896, p. 123. 272 On 20 Nov 1902, Képv. napló, 9, p. 57; another similar interjection on 15 November, ibid., 8, p. 418. 273 An unsigned article which poked fun at the indulgence with which writers compared the Hungarian to the British constitution pointed out the muddle over the use of the ‘crown’ in political rhetoric: writers follow the British precedent, referring to the king of Hungary as the ‘crown’. The injunction is frequently heard in parliament: ‘Do not involve the crown in political debates’, but the deputies also claim that ‘they represent the nation in the crown’: ‘Az angol-magyar alkotmány-rokonság hazugsága’, Pesti Hírlap, 3 November 1907, p. 35. Muddle over the use of ‘the crown’ was not a Hungarian monopoly. F. W. Maitland cautioned his students: ‘There is one term against which I wish to warn you, and that term is “the crown”. You will certainly read that the crown does this and the crown does that. As a matter of fact we know that the crown does nothing but lie in the Tower of London to be gazed at by sightseers. No, the crown is a convenient cover for ignorance: it saves us from asking difffĳicult questions, questions which can only be 70 chapter one rhetoric easily crept into foreign works. The Hungarian crown, visible and invisible, represented ‘national sovereignty’ in the works of John Paget,274 Arthur J. Patterson275 and others.

Limited versus Mixed Monarchy in the Jurists’ Works

When we leave the clumsy patchwork of political rhetoric, in which even the visible and the invisible crowns were mixed up, and turn to the jurists, we fĳind after 1790 a more orderly, slowly evolving vocabulary. Rising French radicalism in the late eighteenth century had echoes even in conservative strongholds like the Law Faculty in Pest, although heterodox writings mostly remained in manuscript form.276 The Latin and German works published by Professors Rosenmann,277 Schwartner,278 Cziráky,279 and Virozsil,280 the standard-setting manuals of public law until the 1860s,

answered by study of the statute book.’ The Constitutional History of England, Cambridge, 1913, p. 418. 274 ‘It is almost impossible for a foreigner to conceive with how deep a veneration the Hungarians regard this crown as an emblem of national sovereignty’, John Paget, Hungary and Transylvania, London, 1839, 1, p. 153. 275 Before 1848 a noble was ‘membrum sacrae coronae, a member of the Hungarian Crown, and as a representative of the original free conquerors of the land, a co-partner in sovereignty with the king’: Arthur J. Patterson, The Magyars: Their Country and Institutions, London, 1869, 1, pp. 253–54. 276 Eckhart found an early example of the deducing of political rights from crown membership. Antal Demjén, Professor of Natural Law in Pest, in a MS from 1783 which the Staatsrat did not allow to publish, inferred from Werbőczy (Trip., Pt. 1 Tit. 3) that the nobles, as members, are connected to the monarch, as head, ‘in ordinandis adminis- trandisque negotiis publicis’: Eckhart, Szentkorona, p. 301 n 13; idem, A jogi kar tört., pp. 146–49. 277 Stephan Rosenmann’s work was based on manuscripts by József Ürményi, High Court judge and Chief Justice, and György Lakits, law professor in Pest: Jus publicum regni Hungariae, Vienna 1791 (hereafter: Jus publ.); its German abridged translation: Staatsrecht des Königreichs Hungarn, Vienna, 1792. 278 Martin Schwartner, Statisik des Königreichs Hungern, Pest, 1798 (hereafter: Statistik). 279 Cziráky, Conspectus (see note 182 above). 280 Anton Virozsil, Juris publici regni Hungariae, 6 parts, Buda, 1850–1854 (hereafter: Juris publ.); idem, Magyarország nyilván-vagy közjoga, Buda, 1861 (hereafter: M. orsz. köz- joga); idem, Das Staats-Recht des Königreichs Ungarn, 3 vols, Pest, 1865–1866 (hereafter: Staats-Recht). Effforts to publish a university textbook on Hungarian public law were unsuccessful between 1790 and 1848. The court carefully guarded the crown’s sovereignty claims, which were not entirely endorsed even by ‘establishment men’. Virozsil wrote his Latin work in 1843 but the authorities did not allow its publication at the time. Cziráky’s work (written in the 1830s) received the same treatment. The fact that he was Chief Justice and the doyen of the profession and that Virozsil was the rector at the University of Pest the holy crown of hungary, visible and invisible 71 possessed a common conceptual outlook. Their authors were all king’s men, followers of Martini.281 Baron Karl Anton Martini, highly respected jurist of the natural law school, adviser to the court and tutor to the sons of Empress Maria Theresa was a late follower of Pufendorf and of Johann Christian Wolfff. Martini’s university textbooks, published in the late 1760s, reveal him to have been a contractualist of rank moderate form. He held that, once transferred by the people, the power of the monarch was complete yet not unlimited. Although the people did not possess the right of resistance to the edicts of the monarch, their representatives were to be consulted on public matters. Their consent was, however, required only concerning changes in people’s fundamental rights. The followers of Martini regarded Hungary a limited rather than a mixed monarchy. The distinction is crucial: in monarchia limitata (in contrast to monarchia absoluta) the king governs in accordance with the laws enacted by him after consultation with the subjects. In monarchia mixta royal power is balanced by the powers of the privileged classes; legislation is claimed to be joint and therefore monarchy is ‘constitutional’. Chief Justice Cziráky waxed eloquent in rejecting the view that the forma imperii in Hungary was ‘mixed’. The form of rule (imperium) was purely monarchic,282 but the powers of government (regimen) were restricted by the laws, made with the consent of the diet, which the king had inherited.283 Virozsil, like Cziráky, expressly rejected the claim that jura maiestatica, being divided between the king and the estates, formam … imperii e monarchica et aristocratica mixtam concipiunt.284 As we should expect, crown membership did not have a prominent place in the works of the royal jurists. Rosenmann used the Tripartitum to support Martini and the court’s position that Hungary was a monarchia limitata. The monarch’s dispositions were not based on personal will; they were limited by laws to which the diet had freely consented. Thus Werbőczy, he went on, appropriately called the nobles members of the made no diffference. Both works were allowed to be published after 1849 as historical accounts. 281 The authorities were afraid of the influence of Kant’s works. The Gubernium ordered in 1795 the University to use Martini’s works, where it was possible, in teaching: Eckhart, A jogi kar tört., pp. 230–31. 282 Cziráky, Conspectus, 2, pp. 186–88, ‘omnis civilis Imperii Majestas, omnisque pleni- tudo potestatis in una Ejusdem Persone resideat’, p. 188. 283 Ibid., pp. 189–90. 284 Virozsil, Juris publ., Pt. 4, pp. 13–14. 72 chapter one

Holy Crown.285 It followed that the Regni Hungariae corpus politicum consisted of the king as head and the nobles as members whose cooperation and harmony were necessary for the survival of the body.286 No political conclusion followed from the exhortation. Schwartner, taking a very strict line on Majestas-Rechte, emphatically stated that unless there was fĳirm evidence in law to the contrary, all rights of the king Reservatrecht sey,287 that is, they lay outside the competence of the diet. He barely mentioned crown membership let alone drew any political conclusions from it.288 Cziráky, although less strict on the king’s jura reservata than Schwartner, was as indiffferent to using crown membership for political points as his predecessors.289 Virozsil repeated the injunction in strict form that the king’s majestic rights were restricted only on the basis of strong legal evidence; the presumptio juris was on the side of the monarch. Like his predecessors, he briefly mentioned crown membership, but he did not use this to make claims, although it clearly emerges from the references that those who appear at the diet were called members of the Holy Crown because they participated in politics.290 Jurists representing the views of the nobility, rather than being direct ly dependent on the government, begged to difffer from the royal jurists. They regarded Hungary as a constitutional rather than a limited

285 ‘Dass die Regierungsart von Hungarn monarchisch sey, wird leicht keiner in Abrede stellen, da die ganze oberste Gewalt in their Person des Monarchen vereinigt ist, so, dass in den, die öfffenliche Verwaltung und das ganze Königreich betrefffenden Angelegenheiten, ohne seinen Beitritt und seine einwilligung, nichts giltig entschieden werden kann; dass die aber auch eine beschrankte Monarchie sey, ist aus dem abzunehmen, weil die Könige in öfffentlichen Reichsangelegenheiten nicht nach ihrer Willkühr handeln und entschei- den darfen, sondern an die landtagsmassige Einwilligung und freiwilige Beistimmung der Stände gebunden werden. Daher sagt Werbőz granz anpassend: dass die Edelleute durch eine gewisse Reziprokazion und wechselseitige Verbindung mit dem Königen, als Glieder der heiligen Krone geachtet werden, die, ausser dem rechtmässig gekrönten König, keinem anderen unterworfen sind.’ Rosenmann, Staatssrecht, Pt. 2, Section 1. Idem, Jus publ., pp. 30–31. 286 Quoted by Eckhart, Szentkorona, p. 303. 287 Schwartner, Statistik, pp. 347–48. In the second edn. (2 vols, 1809–1811), he referred to Hungary as ‘eine erbliche aber eingeschränkte Monarchie’, 2, p. 1. 288 Ibid., p. 365. 289 Cziráky, Conspectus, Pt. 2, p. 6 and Pt. 1, p. 132. 290 Virozsil, Juris publ., Pt. 2, p. 11. Ibid., Pt. 4, p. 16; Idem, M. orsz. közjoga, pp. 68 and 149; idem, Staats-Recht, 1, p. 282, 2, pp. 256–59. Jurists after the 1867 constitutional settlement followed Virozsil. Ignácz Kuncz noted that because the ultimate source of political rights was the state, the Hungarian noble was adorned by the splendid title of the Holy Crown’s member. Kuncz, at the same time, departing from Virozsil, tried to soften the implications, not very successfully, of the monarchic reservata: Az államélet főbb mozzanatai tekintettel a magyar közjogra, Pécs, 1870, pp. 62, 99–103. the holy crown of hungary, visible and invisible 73 monarchy. In essence, this principle was what the ‘movement’ of the nobility in 1790 was about. Even when they conceded that monarchy in Hungary was ‘limited’, they went on to argue that in fact it was ‘mixed’. Their mental world, medieval and dualistic, was inhabited by two actors: king and ország. Adalbert Barits, the university teacher, and György Aranka, the judge in Transylvania, argued in their anonymous publications in 1790 that ‘the supreme power is divided between king and ország’.291 Illés Georch reckoned that the laws were made by the four status et ordines, empowered to legislate at the diet, which the king then had only to approve and render authentic by personal signature.292 Any royal jurists would have dismissed, as untutored, the very fĳirst sentence after the introductory parts of Zsigmond Beöthy’s Public Law: ‘The kormányalak [form of government] in Hungary is monarchy restricted by the estates of the ország’.293 The author then gave a potted history of the fundamental laws as agreements between the two actors and concluded on the point that the kormányalak was really ‘monar- cho-aristocratic’ in which the single ruler ‘shared’ power with the few, the aristocracy.294 A moderate man, Beöthy, inferred from membership of the Holy Crown only the injunction of fĳidelity to the king and the crown.295 Károly Miskolczy’s outlook was similar to Beöthy’s but his interest in the Holy Crown was confĳined to the fĳiscal and the territorial senses.296 The subject suddenly took offf with Béla Szabó, a judge in County Moson, whose treatise, written in 1847, was published during the 1848 revolution. His individual political system was based on two propositions, both argued on historical grounds. The fĳirst was that the Lands of the Hungarian crown formed an álladalom entirely independent of Austria,

291 Quoted by Győző Concha, Politika, 2 vols, Budapest, 1895, 1, p. 298. On Barits see Eckhart, A jogi kar tört., pp. 208–12. There is some doubt over the authorship of the work attributed to Barits. 292 Georch, Honnyi törv., 1, pp. 4–5. 293 Zsigmond Beöthy, Elemi magyar közjog, Pest, 1846 (hereafter: Közjog), p. 14. The author was szolgabíró in County Komárom. 294 Ibid., p. 15. The claim that the ‘nation’ shared the majestic rights with the king was common currency in lectures at the Hungarian Academy in Pest. See, for instance, Antal Sztrokay, ‘A Magyar álladalmi szabadság jogi szemléje’, in Magyar Tudós Társaság Évkönyvei, ‘Értekezések’, 7, 1846, pp. 3–17 (p. 7). 295 Beöthy, Elemi magyar közjog, p. 66. 296 Károly Miskolczy, Magyar Ország köz Joga, Eger, 1846.The author was a solicitor. After declaring that the form of government in Hungary was monarchia limitata, Miskolczy went on to argue that power was transferred ‘on conditions’ and that legislation was ‘joint’: pp. 13, 40–41. 74 chapter one which was likewise an álladalom.297 The second contention of Szabó was that the Hungarian crown was the true owner of all the lands within the Hungarian álladalom, a thesis from which he boldly deduced a whole set of other principles. Individuals could only ‘possess’ (rather than own) property in the álladalom.298 In it, a single Hungarian nation (the nobility) had existed in the past and should (in a new form) exist in the future.299 The king, too, was only a ‘possessor’ of power, he országol, on the strength of pactum conventum with the nation, while sovereign power, following from its ownership of all the lands, was settled on the crown of which the possessors of land were members. The members of the crown were not even ‘subjects’ (Untertanen) of the king.300 As Győző Concha, politics professor in Budapest, pointed out in a perceptive, critical essay,301 Szabó, by mixing up property relations and the question of sovereignty, confused private law with public law. Szabó, the Filmer of the Hungarian nobility, was overtaken by the revolution and the subsequent recentralized Austrian system. Szabó’s monograph remained an isolated work seemingly without influence either on politicians or jurists until it was discovered by Concha, the true maker of the Holy Crown doctrine, who gained inspiration from it.302 Unexpectedly, membership of the Holy Crown turned up in a legal case in London. In the Hungarian Banknote Afffair of 1861, the well-known constitutional writer Joshua Toulmin-Smith went to the defence of Kossuth who had arranged the printing of paper money for Hungary in his own name. The Austrian government took him to court in London.303 In order

297 Béla Szabó, A magyar korona országainak státusjogi és monarchiai állása a pragmatica sanctio szerint, Pozsony, 1848 (hereafter, A. m. korona), pp. 5f, 29f, 51, 121, 136. The author was a landowner and solicitor, absentium legatus at the diet in 1832–36, juratus assessor in Counties Győr and Mosony and a follower of Kossuth in 1848. 298 Ibid., pp. 73–74. 299 Ibid., pp. 60f, 157–58. 300 Ibid., pp. 29, 51, 80–84, 112–14. 301 Győző Concha, ‘Szabó Béla elfeledett közjogászunk’ (1918), repr. in Hatvan év, 2, pp. 496–519, 515. 302 Concha regretted that Szabó’s work had been forgotten for so long since it made an original contribution to Hungarian legal thinking ‘by giving a clear interpretation to what the attribution of sovereignty to the Holy Crown, as had been expounded by Werbőczi, involved’: ibid., pp. 497, 500. Concha’s fĳirst reference to Szabó’s ‘valuable work’ was from 1891 (see Hatvan év., 1, p. 639), the year when he constructed the Holy Crown doctrine, see below. 303 In order to fĳinance a revolutionary war against the Habsburg Emperor so that an independent Hungarian State could be established, Kossuth, then an émigré in London, commissioned a fĳirm, W. Day & Sons, to print 100 million forints in paper money with his name as Governor of Hungary and the Hungarian coat of arms on it. After the money had the holy crown of hungary, visible and invisible 75 to win public support for Kossuth, Joshua Toulmin-Smith, a political friend, agreed to the publication of his letter to the Foreign Secretary304 in which one of the arguments to justify the printing of the banknotes was: It is written, then, among the fundamental laws of Hungary, that every Hungarian noble has a share in the Sacred Crown of Hungary, and that none is above him but the lawfully crowned King. Kossuth is a Hungarian noble: he has therefore the full right to put the fĳigure of the Hungarian Crown on any document or anything else that he pleases. In a footnote to the paragraph, Toulmin-Smith even attached chapter and verse from the Tripartitum.305 Not unexpectedly, the High Court found against Kossuth and his associates.306 Only one or two works moved the subject further from the spate of publications on public law after the collapse of the ‘Bach regime’, the eas- ing of government control and the enactment of the October Diploma in 1860. Emil Récsi, professor in Pest, produced an independent work. In his Public Law he sought to have it both ways. The ‘Hungarian state body’ was a ‘limited monarchy’ in which, however, the monarch’s rights faced the nation’s which ‘bear on the exercise of the same supreme power’; from their mutually restricting balance a ‘constitutional system’ emerged.307 Récsi emphatically stated that the nobility (before 1848) were called members of the Hungarian Holy Crown because they ‘participated in the exercise of the supreme, notably legislative power at the diet’;308 however, been printed by the fĳirm the Emperor of Austria brought an action against W. Day & Sons and Louis Kossuth on 29 February 1861. The case was heard in the Court of Chancery. See Erika Garami, ‘Louis Kossuth’s banknote issue and legal case in London in 1861’, in Virginia Hewitt (ed.), The Banker’s Art: Studies in Paper Money, London, 1995, pp. 38–45. 304 J. Toulmin-Smith, Who is the ‘King of Hungary’, that is now Suitor in the English Court of Chancery? A Letter to the Right. Hon. Lord J. Russell. M.P. (London, 1861). Kossuth writes in his memoirs that he arranged for 3000 copies of the letter to be printed. These were then sent to all MPs, newspaper editors and various institutions. See KLI, 2, p. 442. 305 Toulmin-Smith: see note above, p. 12 and n.. 306 The case was won by the Emperor (4 May). The defendants appealed to the Lord Chief Justice. The Lord Chancellor, however, dismissed the appeal on 12 June 1861. The printed paper money (weighing about 20 metric tons) was then destroyed. The Emperor of Austria v. Day and Kossuth. Before the Lord Chancellor Lord Campbell and the Lords Justices. May 22, 23, 24, June 7, 1861; and see KLI, 3, pp. 71–79, 366–507. 307 Récsi, M. közjoga, p. 124, see 230 and 439. In his Public Law, Mihály Boross, formerly alispán of County Fejér, a local judge, argued that, although a limited monarchy, in Hungary ‘the exercise of complementary and mutually restricting monarchic and national rights make up the constitution’, Magyarország közjoga 1848-ig s 1848-ban, Pest, 1867, p. 27. 308 Récsi, M. közjoga, p. 287. Récsi also held that the Hungarian crown united ‘various nations’ who all benefĳit from it, ‘if they all equally revere the authority of the single legislature and the Hungarian crown which represents the unity of the Hungarian köz álloda- lom’, p. 314. 76 chapter one since the 1848 Laws, all citizens were legally eligible to acquire the franchise.309 The leading Hungarian authority on public law in Transylvania, Elek Dósa, defĳined the legal relationship between the prince and the people as constitutional, based on the principle of mutual rights and obligations.310 On the Holy Crown, however, Dózsa had no original ideas except the observation that civil society, as a concept, was realized in the Holy Crown and consequently the crowned prince.311 More originality was shown by Károly Csemegi, a leading jurist, who used crown membership in 1862 to rebut the so-called Verwirkungstheorie which claimed that Hungary had forfeited her constitution in 1849. According to Csemegi, the theory could not apply to Hungary, since Hungary was a ‘constitutional monarchy based on the sovereignty of the State’. The membra sacrae coronae, in addition to their strictly legislative function, were also empowered to participate in other governmental acts. Thus, ‘the great question of sovereignty, which today is so hotly debated in other countries, was settled with us by the precise disposition of the law centuries ago, as the attribute of the crown’.312 Before 1848 the right of the crown was exercised by ‘the Holy Crown as a whole’ which included the king and the nobility and, after 1848, the whole nation.313 The ‘crown as whole’ apparently haunted other scholars as well until the legal historian Imre Hajnik supplied the phrase. He wrote in 1875, that is a few years after the 1867 constitutional Settlement, in his General European Legal History: Only where, as in the diet, the monarch wearing the crown on his head appeared together with the members of the Holy Crown was the whole body (totum corpus sacrae regni coronae) present that is public power in its entirety. Only under these conditions could the Holy Crown exhibit its capacity to the full and could law be made. And fĳinally, the Holy Crown and its members developed the governmental relations on which the autonomy of the Hungarian state is, in particular, dependent.314

309 Ibid., p. 326. 310 Elek Dózsa, Erdélyhoni jogtudomány, 3 vols., Kolozsvár, 1861, 1, pp, 117–18. 311 Ibid., 1, p. 56. Dózsa had the land donation in mind, see 2, p. 258. 312 ‘A jogvesztés elmélete és az államjog’, in Csemegi Károly művei, 2 vols, Budapest, 1904, 1 (hereafter: Csemegi), pp. 126–27. Csemegi was arguing against minister Schmerling’s statement in the Reichsrat, made on 23 August 1861. See Josef Redlich, Das österreichische Staats-und Reichsproblem, 2 vols, Leipzig 1920–1926, 2, p. 157. 313 Csemegi, p. 130. 314 Imre Hajnik, Egyetemes európai jogtörténet, Budapest, 1875 (hereafter, Egyet. jogtört.), p. 210; also quoted by Eckhart, Szentkorona, p. 319. The passage was repeated without any revision in all the fĳive editions of the work (fĳifth edn., 1899, p. 237). the holy crown of hungary, visible and invisible 77

Many a historian since the First World War has been looking for totum corpus sacrae regni coronae in the sources without, however, coming up with a single example.315 Hajnik referred to the ‘public law character’ of Hungarian constitutional development as the ‘doctrine’ of the Holy Crown, and historians have ever since regarded him as the discoverer of the ‘doctrine’.316 A distinguished historian of medieval European institutions, Hajnik insisted that Hungarian institutions could be understood only in this wider context. His influence was undoubtedly important; a strong case could be made, however, that he was not the author of the Holy Crown doctrine. A conservative scholar, Hajnik like others, understood by supreme power or sovereignty, the legislative independence of Hungary as a state. He was not concerned with the king’s rights, which is what the doctrine was about. Politically a follower of Deák, Hajnik never argued that parliament had the right to initiate legislation on any subject that the 1867 Settlement had recognized as the monarch’s reservata. The doctrine as it has been asserted and used in constitutional discourse was the product of the so- called dogmatic law school, which appeared in the 1880s in association with the work of a young jurist, Ernő Nagy.317

The Making of the Doctrine of the Holy Crown

Nagy’s Public Law (1887)318 represented a new method; indeed its author established a new school. The ‘Hungarian Laband’, as Nagy was soon called, learnt German analytical jurisprudence, the so-called dogmatic method, in Strasbourg. Paul Laband, the most influential lawyer of the German imperial system of government, who became professor in

315 Hungarian jurists and some historians, following Hajnik, went on referring to the ‘total body of the Holy Crown’ ad nauseam without producing a single instance in the documents. The lack of the evidence was pointed out by József Barabási Kun, ‘Széljegyzetek a szent korona tanához’, Budapesti Szemle, 172, 1917 (hereafter: ‘Széljegyzetek’), p. 16–53 (p. 26). The subject was critically examined by Bartoniek, ‘Corona’, esp. p. 328. She found totum corpus predicated only on regnum. 316 Hajnik, Egyet. jogtört., p. 208 Eckhart wrote that Hajnik’s works provided ‘the starting point of the new understanding of the doctrine’. Hajnik undoubtedly regarded the corporate crown as central in the working of the political institutions when others did not. Yet his ideas on the crown were very similar to Récsi and Csemegi’s apart from contriving the totum corpus phrase—an aberration in the work of a respectable historian. 317 See Péter, ‘Verfassungsentwicklung’, pp. 386–97. 318 Ernő Nagy, Magyarország közjoga (államjog), Budapest, 1887, seven edns. (hereafter: Közjog). 78 chapter one

Strasbourg in 1872, was an analytical jurist concerned with the general qualities of existing law. While adherents of the ‘historical method’ frequently treated the existing law as a mere adjunct to what had historically evolved, the followers of the analytical method examined the legal concepts of the present and used the past to supplement it. As critics of this school liked later to point out, the jurists of the new method ‘discovered’ modern legal categories in the legal material of the past. Nagy applied the new method vigorously to the Hungarian constitution, which had hitherto been superabundant in historical material. In his textbook he gave clear defĳinitions of legal categories like the State, public law, sovereignty and others. Following German jurisprudence, inspired by Hegel, he defĳined the state as an entity with the attributes of ‘personality’. The State possessed individuality, free will, and ability to act and develop. Because it determined its own norms, the State was a legal person in the highest sense rather than just a ‘mechanical compound of the state members’. From this it followed that ‘the subject of state power had to be the state itself’.319 Problems lurked. Did Hungary possess a state personality jointly, as Siamese twins, with or separately from Austria? Did support exist in statutory law for the claim to separate Hungarian State sovereignty? Besides, the juridical nature of the ‘common’ monarch’s rights was a contentious subject. Legal history seemed to be on the side of the leading jurists before 1867 who were unanimous in distinguishing the reserved from the shared monarchic rights and who invested the presumptio juris in the former.320 Jurists of the lower courts in the counties did not share these views. Sometimes they even claimed that the king possessed only specifĳic powers transferred to him by the nation:321 royal power after all was based on the ‘ország’s crown’. We have seen earlier, however, that the ‘ország’s crown’ had nothing to do with the extent of the king’s rights. The crown belonged to the ország only in the sense that the diet acquired the right in the late Middle Ages to elect the king when the predecessor failed to leave behind a legitimate male successor (developments that were later reversed).322

319 Ibid., second edn., 1891, pp. 1–3, and 150. More later on ‘organic’, the new vogue word among jurists. 320 See pp. 72f above. 321 This was difffĳicult to argue as the Pragmatic Sanction (and the Tripartitum) maintained that the rights of the crown were transferred to the king regendam et gubernandam: Art. 2, 1723, Section 7. See also, Péter, ‘Verfassungsentwicklung’, pp. 259–60. 322 See pp. 30–31 above. From 1687 (at the latest), Hungary reverted to a hereditary monarchy. the holy crown of hungary, visible and invisible 79

In the fĳirst edition of his work Nagy asserted (although without legal evidence) the principle that Hungary and Austria were two separate states, each with unimpaired sovereignty. Somewhat incongruously, however, he reiterated the traditional distinction between the reserved and the shared rights of the emperor-king.323 When he was criticized for this by the scholar-politician Gyula Schvarcz, Nagy, in the second edition of his work (1891), accepted his odd advice that it was only in 1848 that the laws introduced this division of the supreme rights between the absentee king and the palatine. However, he went on, Law VII of 1867 had rescinded the palatine’s power and therefore the division of the supreme rights was no longer justifĳied. Nagy got himself into deeper trouble over this revision, which together with much else written in his manual, Győző Concha attacked.324 We should digress now from the jurists in order to uncover a political innovation, which brings into focus their debate. A critical change took place during the Great Defence Debate of 1889 in which parliament challenged the king’s reservata. From then onwards, Hungarian politics became a terrain of volcanic eruptions. Count Albert Apponyi’s magnetic personality and oratorial brilliance helped to create a new political outlook in parliament which rejected the claim that Franz Joseph possessed reserved rights concerning the language of the army.325 The crux of Apponyi’s argument was that, amidst shattering screams of approval in the House, he reversed the presumption of the law on reservata: the onus of proof was with the king rather than with parliament.326 Although formally representing a minority in the House, Apponyi won the day. Teofĳil Fabinÿ, Minister of Justice, after manfully defending the monarch’s army

323 The existence of the two separate actors, monarch and parliament, in the working of the constitution was institutional fact. The reserved rights of the emperor-king could not go along with the concept of the sovereign Hungarian State: they tied Austria and Hungary together as Siamese twins. 324 See Péter, ‘Verfassungsentwicklung’, p. 397. Gyula Schvarcz’s criticism was recently reprinted by György Miru, Schvarcz Gyula, Budapest, 2000, pp. 150–51. 325 Ibid., pp. 521f. We ought to remind ourselves that an Apponyi speech never merely restated constitutional principles; this magician’s speech-act, or ‘performative’ to use J. L. Austin’s term, could transform his audience’s perception of reality. 326 ‘The extent of monarchic rights fluctuates’, he began the argument, and soon came to the point: ‘anybody who claims that a subject exclusively belongs to His Majesty, according to our existing public law, has to offfer strict evidence. The onus of proof rests […] on those who claim that a particular subject does not belong to the joint competence of king and nation, i.e. legislation’, 2 March 1889, Képv. napló, 9, p. 176. Because of the customary character of the constitution, ‘proving’ a point in question (by either side) was far too delicate. The reversal of the (traditional) presumptio juris, potentially amounted to a rejection of most reservata. 80 chapter one rights in the House, resigned from offfĳice.327 The outcome of the Great Defence Debate was the background and the context for the creation of the Holy Crown doctrine. The debate over the second edition of Nagy’s textbook provided the occasion.328 In 1891, Győző Concha, professor of Politics in Budapest, sharply criticized Nagy’s Public Law, and indeed attacked the author himself, for Nagy, Concha claimed, slavishly followed foreign authors, particularly Laband, and ‘in order to make our public law appear modern and juristic had sac- rifĳiced its specifĳic Hungarian character’. Nagy’s defĳinition of the personality of the State led his analysis nowhere; his use of terms was confusing. He failed to grasp that in Hungary the powers of the king and the nation were for centuries intertwined to a degree found nowhere else: the ancient constitution, through the participation of the diet and the counties in the exercise of sovereignty, possessed the ‘nature of public law’.329 Concha did not explore this point to which he returned only in his rejoinder. Instead he moved on to Nagy’s other mistakes, of which there were many, and fĳinished his review with Nagy’s ‘most glaring mistake’: his failure to realize that the king’s reserved and the shared supreme rights had always been distinguished from each other.330 Again Concha did not elaborate the point. Nagy was on the defensive in his Reply. As he explained, his book was only the fĳirst attempt to apply the dogmatic method to Hungarian public law and was not intended as a defĳinitive work. Yes, he adopted the basic concepts of modern jurisprudence, but was not a slavish follower of foreign scholarship. While he learnt much from Laband, he rejected many of his ideas. The tenet of the personality of the State was, of course, much older than Laband’s theories and at any rate it had acquired general acceptance in the literature. ‘It is possible to talk about specifĳic Hungarian doctrines only where specifĳic Hungarian institutions exist’, but even these

327 Further, Fabiny’s successor was none other than Dezső Szilágyi, Apponyi’s guru on constitutional principle. See Péter, ‘Verfassungsentwicklung’, pp. 323–26. Szilágyi (member of the House from 1871, professor of law in Budapest from 1874 and joint leader with Apponyi of the Moderate Opposition between 1878–1886) did more than anybody else to naturalize the vocabulary of the German dogmatic law school in parliament in the 1880s before Ernő Nagy and the other jurists’ changeover. 328 Eckhart mentioned briefly the army rights as a background to Timon’s book (see further): Szentkorona, pp. 325–26. He assumed that the author of the doctrine was Hajnik and that Concha only ‘vindicated’ Hajnik’s ideas (we shall presently see that Concha did much more than that): Eckhart, Szentkorona, pp. 325–26 and 320. 329 Győző Concha, ‘Magyarország közjoga’ (1891) reprinted in Hatvan év, 1, pp. 553–67 (hereafter, ‘Magyarország közjoga’). Concha supported this claim with a passage from Werbőczy (Trip,. Pt. II, Tit. 3), pp. 558–59. 330 Ibid., p. 567. the holy crown of hungary, visible and invisible 81 have to be analysed by the methods of modern scholarship which were international. Nagy rejected point-by-point Concha’s innuendo that he had failed to bring out in his analysis the individual features of the Hungarian constitution. He did not take on Concha’s larger claim, however, concerning the nature of supreme power in Hungarian public law and was rather evasive on the distinction between the reserved and the shared rights.331 Concha, irritated by Nagy’s Reply, produced a fĳifty-page rejoinder.332 This writing rather than, as Ferenc Eckhart had thought, Hajnik’s Legal History should be regarded as the fĳirst exposition of the Holy Crown doctrine. Concha found vacuous the axiom that the subject of state sovereignty had to be ‘the State itself’.333 He deftly combined the old simile of the king as ‘head’ and the nobility (later the electorate) as ‘members’ with the modern idea of legislative sovereignty: the single supreme authority which possessed the legally unfettered right to make and unmake law. At fĳirst sight the following passage may not look all that diffferent from Récsi, Csemegi, and Hajnik’s statements. A closer look at it, in conjunction with other passages, however, reveals the diffferences: In Hungarian public law the subject of sovereignty is the Holy Crown. The king becomes the participant of sovereignty through formal investiture with the symbol of that crown and the citizens do so by becoming its members, in former times through ennoblement, today through enfranchise- ment. Foreign jurists, by casting aside centuries-old patrimonialist views, today, nearly three hundred years after Grotius,334 hold that the subject of sovereignty is neither the ruler nor the people but the State. But, for centuries, this has already been expressed in Hungarian public law through the concept of the crown.335

331 Ernő Nagy, Válasz közjogi könyvemről … megjelent bírálatra, Budapest, 1891, pp. 1–16. Rather confusingly he had written in his textbook: ‘The crowned king, is in his own right, the head of the Hungarian state, the possessor of supreme power’. Nagy, Közjog, 1891, p. 166. 332 Győző Concha, ‘Közjog és magyar közjog’, Hatvan év (hereafter, ‘Közjog’), 1, pp. 568– 618: a storehouse of new interpretations across Hungarian public law. 333 Ibid., pp. 585, 591f. 334 Concha referred to Grotius here probably because he had viewed the State as a legal person rather than because of his contribution to the theory of sovereignty which, compared to Bodin and others, was slight. See Győző Concha, Politika, 2 vols, Budapest, 1895 (hereafter, Politika), pp. 235, 255f, 258. 335 Concha, ‘Közjog’, pp. 585–86. The force of this claim is, however, weakened by another passage in which Concha admits that before the 1848 laws, ‘the unity of the Holy Crown was insecure’ because ‘the king and the diet faced each other, in many respects, as two separate supreme powers’, p. 615. 82 chapter one

Concha’s evidence consisted of the joint law-making by king and diet, the monarch’s obligation to enact the Inaugural Diploma and the passage from Werbőczy about the ‘reciprocal transference and mutual connection’ between the king and the landed nobility, the ‘members of the Holy Crown’.336 As we have seen, however, the passage in the Tripartitum, Pt. I Tit 3, had referred to the principle of equality within the landed nobility and the land donation system.337 Concha, with a sleight of hand, converted Werbőczy’s ‘mutual connection’ to the doctrine that king and parliament were ‘joint possessors of legislative sovereignty’. The modern theory of the State was, perhaps incongruously, adjusted to medieval Doppelpoligkeit. It could be objected that if supreme authority resided in king and parliament, the Holy Crown doctrine was a statement on joint authority, which existed only so far as the monarch and parliament were in agreement, rather than a statement on legislative sovereignty, which presupposed a single source of authority. For all this, Concha’s understanding of sovereignty, based on the assumptions of the dogmatic school, radically dif- fered from Csemegi and Hajnik’s. They had asserted the principle that the Hungarian legal system was not subordinate to any other: it was legally independent. For Nagy and Concha (and Apponyi), however, sovereignty, more than just independence, was a necessary attribute of the State in possessing unrestricted and legally illimitable supreme power in the making and unmaking of law. An essential part of Concha’s argument was that the functions of the state (legislative, executive and judicial) had to be clearly distinguished from the ‘organs’ of the state (which Nagy failed to do). The functions and the organs did not coincide.338 The king, parliament and the ministry constituted the three chief organs of sovereignty. Treating the ministry as a separate organ, on a par with the other two organs of the state, was a realistic assumption. The concept of organs, with its radical implications as to the nature of the king’s rights, was a part of the metaphysical theory of the State which began to afffect a few Hungarian jurists who read too many German authors influenced by Fichte and Hegel’s writings. They certainly influenced the adherents of the dogmatic law school, notably Ernő Nagy and Győző Concha. They both claimed that the State, an end itself, an ‘independent’ being, indeed, a person in a legal and moral sense, was ‘organic’. The term, the new buzzword, became commonplace among

336 Ibid., pp. 586–90. 337 See above p. 47. 338 Concha, ‘Magyarország közjoga’, pp. 554–57; Concha, ‘Közjog’, pp. 591–600. the holy crown of hungary, visible and invisible 83

Hungarian jurists in the late nineteenth century. Concha, however, one of the very few who read and perhaps even understood Hegel, was the fĳirst who explored the speculative context of the organic vocabulary. For him ‘organ’ was ‘a part of vegetal or animal body, diffferentiating itself from the rest of the body, which performs certain specifĳic tasks’.339 The functions and organs of the State were only necessary elements, ‘moments’ of state personality.340 Hegel’s direct and, through Lorenz von Stein, indirect influence is transparent.341 Organs could not will for themselves (only the whole body could), the king as an ‘organ’ of the State (Concha was the fĳirst to make the inference) did not possess, even as regards the reservata, a ‘will’ separable from the personality of the State. Nagy, according to Concha, had failed to grasp that although unlike the shared monarchic rights, the reserved rights had always been exercised by the king through the government without parliament’s involvement, he and parliament were, as they had always been, competent to legislate on any subject, including the reservata. Concha then let the cat out of the bag. He re- counted the ‘mistake’ made by Teofĳil Fabinyi who, as Minister of Justice, had denied that parliament could legislate on reservata and was forced out of offfĳice. In Britain, the monarch’s prerogative was converted into the nation’s one; in Hungary the king’s reservata became the rights of the Holy Crown.342 Concha’s throwaway line on minister Fabinyi’s resignation was a direct reference to the conflict between the Tisza government, defending the army rights of the crown and the Opposition, the Independentists and, above all, Count Apponyi, an outcome of which was the doctrine itself. The resignation of Fabinyi on 9 April 1889 (totally over- looked by historians), was the harbinger that marked the onset of permanent instability in Dualist Hungary’s politics. The organic vocabulary of the State sheds light on our contention that Eckhart was wrong to regard Hajnik, rather than Concha, as the author of

339 Ibid., p 598. 340 ‘mozzanat’. See Concha, Politika, 1, pp. 272f. 341 Hegel’s organic State does not have ‘head’ and ‘members’; its parts are ‘aspects’ or ‘moments’, analogous to the cells of animal organisms: ‘Life is present in every cell. There is only one life in all the cells…’ (Section 276A). Hegel expressly rejects the feudal state, an artifĳicial person, which was ‘rather an aggregate than an organism’ (Section 278). Concha may have been inspired by Hegel’s prescription that in the Crown ‘the diffferent powers are bound into an individual unity, which is thus at once the apex and basis of the whole, i.e. of constitutional monarchy’ (Section 273): T. M. Knox (ed.), Hegel’s Philosophy of Right, Oxford, 1958, (the paragraph numbers are Hegel’s). Concha was a student and an admirer of the jurist Lorenz v. Stein, professor in Vienna, a follower of Hegel. 342 Concha ‘Közjog’, pp. 617–18. 84 chapter one the Holy Crown doctrine. What Concha meant by organic had little in common with what Hajnik meant by totum corpus sacrae regni coronae. Indeed, in the past, the organic metaphor was hardly more than a symbol of unity of some sort between the ‘head’ and the ‘members’, which constructed a composite whole.343 The parts, each retaining separate individuality, were tied together by agreement or contract. The king in Hajnik’s metaphoric ‘body’ possessed, just as the ‘members’ of the crown did, praerogrativa in his own right. There was no trace of Hegel’s influence in Hajnik’s theory which left the king’s reservata intact. In contrast, in Concha’s theory, under Hegel’s influence, the parts of the state body were not tied together by contract. The king ceased to be an agency for itself and was degraded to be an ‘element’ in the personality of the State.344 In Concha’s speculative body, the king was efffectively deprived of his reservata. Eckhart treated ‘the organic idea’ of the late nineteenth century as if it had been the same idea of the organic simile used before the 1880s. He could hold Hajnik rather than Concha as the author of the Holy Crown doctrine because of his failure to distinguish between the old metaphoric and the speculative Hegelian organic uses. Nagy eventually accepted Concha’s innovation. Indeed the next (1897) edition of his work became the fĳirst textbook that expounded the doctrine in its chapter on royal power.345 Concha, appointed to the Law Faculty at Budapest in 1892, also influenced Ákos Timon, the leading constitutional historian and fĳirst holder of a new chair in Hungarian Constitutional and Legal History.346 Timon turned the doctrine into the central tenet of the history of the Hungarian constitution in a comprehensive textbook published in 1902.347 He read

343 The unity was ‘collective’ rather than ‘biological; ‘medieval doctrine’, wrote Gierke, ‘despite all the analogies that it drew from organic life […] regards the State as a mechanism constructed of atoms’: Otto Gierke, Political Theories of the Middle Ages, ed. F. W. Maitland, 1958, p. 30. In contrast, the ‘organic’ idea of modern German philosophy invited us ‘to walk by the uncertain and lunar right of [a] biological metaphor’—wrote Sir Ernest Barker in his introduction to Natural Law and the Theory of Society 1500 to 1800, By Otto Gierke, Cambridge 1950, p. lxii. 344 See note 340 above. 345 Eckhart made this point: Szentkorona, p. 323. 346 The chair was created by Count Albin Csáky, Minister of Education, at Budapest University in 1890. Timon was appointed to it on 1 February 1891. He held the Chair until he died in 1925. A Catholic jurist of great learning, Timon studied in Berlin and in Strasbourg in 1876 where he was a member of Laband’s seminar. 347 Ákos Timon, Magyar alkotmány- és jogtörénet különös tekintettel a nyugati államok jogfejlődésére, Budapest, 1902, second edn., 1903, third edn., 1906, fourth edn., 1910, fĳifth edn., 1917 (each new edition was enlarged). A glowing review in the work appeared in the Századok by Lajos Crescens Dedek, 1903, pp. 63–67. the holy crown of hungary, visible and invisible 85 the ideas that others attributed to Werbőczy, even into earlier periods. Also, he insisted that Hungarian institutions were largely indigenous and had already existed at the time of the conquest. The doctrine of the Holy Crown became widely known after the translation of Timon’s work into German, based on the second Hungarian edition, which appeared shortly before the 1905 constitutional crisis and which attained a rather mixed reception abroad.348 Belief in the doctrine sometimes produced extraordinary reactions. Politicians and highly educated university professors were totally imper- vious to the mildest critical observations concerning the doctrine. Hajnik’s slip about the existence of totum corpus sacrae regni coronae, of which not a single instance turned up in the documents, remained an article of faith even after non-believers pointed out that the phrase could not be found before Hajnik.349 A good example of the zeal with which the doctrine could be cherished was the politics of Károly Kmety, Professor of Hungarian Public Law in Budapest from 1902 to 1929 and Independ- entist deputy in parliament from 1906. Kmety drew on Concha and Timon’s ideas. From 1896 onwards, when Kmety was fĳirst appointed as a Privatdozent, these three jurists were in the same Law Faculty and influenced each other for nearly three decades. Kmety’s Public Law, with a large number of editions between 1900 and the First World War, treated the Holy Crown as a nemzetállam, ‘nationstate’.350 After the collapse of the Austro-Hungarian Monarchy in 1918 this professor sent memo after memo to Michael Károlyi, Prime Minister, later President of the Republic, arguing that his government should recognize that it had become the trustee of the Holy Crown. When the communist Béla Kun regime took over in Budapest in March 1919, Kmety spoke in his lectures in support of the regime on the grounds that it ‘aimed at the preservation of the country’s

348 Idem, Ungarische Verfassungs- und Rechtsgeschichte mit Bezug auf die Rechtsentwicklung der westlichen Staaten (hereafter: Ung. Verfassungsgesch.), Berlin, 1904, second edn., 1909. Timon’s work was praised abroad for the width of its well organized knowledge but the claims concerning the originality of the Hungarian political institutions were treated with polite scepticism. See reviews by Hans Schreuer in Zeitschrift für Rechtsgeschichte, 26, Germ. Abt. 1905, pp. 326–40; Paul Laband, Archiv fűr öfffentliches Recht, 19, 1904, pp. 277–79; Paul Vinogradofff,The Law Quarterly Review, 21, 1905, pp. 426–31. 349 József Barabási Kun was the fĳirst writer who pointed out that the phrase totum corpus sacrae regni coronae was never found in a Hungarian legal document: ‘Széljegyzetek’, p. 16; also see Eckhart, Szentkorona, p. 333. 350 A magyar közjog kézikönyve, fĳirst edn., Budapest, 1900 (hereafter, Közjog). ‘The nation is the total body of the Holy Crown and not one factor in it’, ibid., third edn., p. 64 and n.; see also Eckhart, Szentkorona, pp. 329–31. 86 chapter one territorial integrity’. According to an eyewitness student, he called the Revolutionary Directorate the repository of the Holy Crown to which, by virtue of the declaration of the dictatorship of the proletariat, the rights as well as the obligations of the Holy Crown had been transferred.351 The socialist lawyers denounced Kmety as a reactionary; it was asking too much of Lenin’s Hungarian disciples to digest the Holy Crown doctrine. Indeed, there is some evidence that Béla Kun, the Communist leader, planned to sell St Stephen’s Crown in Munich as scrap metal.352

Hungarian Exceptionalism

The doctrine of the Holy Crown had a strong appeal to those in the political class who were poised to take on the ageing monarch over his right to regulate and control the army on his own. Before discussing the impact of the doctrine in general and its political utility, however, it would be instructive briefly to look at Hungarian exceptionalism to which the doctrine reinforced and lent new shape. When the claim to exceptionalism fĳirst appeared in the late eighteenth century it had much to do with Montesquieu’s influence on Hungarian politics.353 The nobles learnt from The Spirit of the Laws that, owing to the separation of powers, the Roman Republic in ancient times and England in modern times possessed a free constitution. Now, those public men who represented the ország’s rather than the Court’s views, argued as we have already seen, that monarchy in Hungary was ‘mixed’ rather than ‘limited’.354 They furnished this claim by discovering parallels, afffĳinity, and kinship with the ‘English’ constitution.355 ‘No other nation apart from the English and the Hungarian can be called free’—declared County Zemplén

351 Pál Halász, ‘A jogi gondolkodás alakulása a Magyar Tanácsköztársaságban’, Jogtudományi Közlöny, 14, 1959, p. 59. 352 See István János Bálint, ‘Szent István Koronája kalapács alatt’, Kapu, 8, 1999, pp. 80–82. 353 Although, as Ágnes R. Várkonyi pointed out, Pál Ráday compared the Golden Bull to Magna Carta even as early as 1706: MT, 4, p. 327. 354 See above pp. 70–77: ‘Párhuzam, hasonlóság, rokonság’. 355 The history of this topic is yet to be written, although Eckhart regretted its lack over seventy years ago: ‘Jog és alk. tört.,’ p. 297. A bibliography of the subject was compiled by István Csekey after 1945, MTA, Kézírattár, Cs. I. For a short bibliography see György Bónis, ‘Az angol alkotmánytörténetírás tegnap és ma’, Századok, 74, 1940, p. 181, n.1. The basis of the ‘kinship theory’ is that in contrast to all the other constitutions, which are ‘written’, the ‘English’ and the Hungarian were historical (in other words, what the girafffe and the ele- phant have ‘in common’ is that neither is like the hippopotamus). the holy crown of hungary, visible and invisible 87 in its 1784 address to the monarch.356 The British constitution became the standard for Hungarian parliamentarians to increase national rights at the expense of the crown’s. The earliest two propagandists of the parallels were the author of an anonymous Latin pamphlet (possibly Adalbert Barits, law professor in Pest) and György Aranka, author of a Hungarian pamphlet. Both writings appeared in 1790.357 Constitutional radicals, like Kossuth in his early years, invoked the parallels with England either to support constitutional grievances or to underline Hungary’s Sonderstellung in the Habsburg Monarchy by contrasting Hungarian constitutionalism with Austrian ‘absolutism’.358 Others, like the publicist János Csaplovics, produced substantial essays on the parallels.359 After 1849, Conservatives, like Pál Somssich, through excerpts from Macaulay’s History of England, explored the afffĳinities between the English and the Hungarian institutions, as a part of an attack on the ‘Bach regime’.360 In the Dualist Era comparisons between the Magna Carta and the Golden Bull and insistence on other ‘parallels’ served the aspiration of extending Hungary’s rights with respect to ‘Austria’.361 But even after the dissolution of the Habsburg Monarchy philologists were looking for constitutional parallels with England in the Middle Ages.362 Yet the search for parallels could, of course, produce very little to lend support to Hungarian exceptionalism. Although the topic has not even today entirely disappeared from public discourse,363 it has had a struggle

356 László Péter, ‘Montesquieu’s Paradox on Freedom and Hungary’s Constitutions 1790–1990’, (hereafter: ‘Montesquieu’s Paradox’), pp. 161 below. 357 See Győző Concha, ‘Az angolos irány politikai irodalmunkban a múlt század végén’ (hereafter, ‘Az angolos irány’), in Hatvan év, 1, pp. 213–27; Eckhart, A jog és államtud. kar tört, pp. 208–12. It is not certain that Barits was the author of the anonymous Latin pamphlet. 358 For an early reference from 1831 see KLÖM, 6, p. 217. 359 Johann v. Csaplovics, England und Ungarn. Eine Parallele, Halle, 1842, p.117 360 Paul von Somssich, Das legitime Recht Ungarns und seines Königs, Vienna, 1850, pp. 130–43. 361 See Géza Jeszenszky, Az elveszett presztizs, Budapest, 1986, pp. 202–03. A substantial study on the subject was by Elemér Hantos, The Magna Carta of the English and of the Hungarian Constitution, London, 1904. 362 Sándor Fest, Skóciai Szent Margittól a Walesi Bárdokig, ed. Lóránt Czigány and János H. Korompay, Budapest, 2000, pp. 121f, 147f. 363 After meeting Prime Minister Viktor Orbán on 25 April 2000, the Lord Chancellor, Lord Irvine of Lairg and the President of the Hungarian parliament exchanged facsimile copies of Magna Carta and the Golden Bull. When Hungary is on the brink of the European Union, this old chestnut is produced to underline the country’s European credentials. 88 chapter one to survive criticism and ridicule. Austrian pamphleters in the 1790s and later German liberal authors, the Translyvanian Saxon Herald Steinacker and the Scottish traveller R. W. Seton-Watson all regarded the analogies as an idée fĳixe of Hungarian nationalists.364 And even in Hungary the country’s best brains habitually rejected the claim to parallels as superfĳicial. The Hungarian philosophe, József Hajnóczy, an admirer of the British constitution emphasized in his works the great diffferences between the two country’s institutions.365 Count István Széchenyi and Baron József Eötvös referred to the parallels with derision.366 Győző Concha rejected the claim367 and Ferenc Eckhart thought it was the ‘product of fantasy fed on national presumptuousness’.368 The crown seemed to provide a more promising basis for Hungarian exceptionalism than the ‘parallels’ with England. Kossuth, a fĳirm believer that the Hungarians were the only truly constitutional nation on the Continent,369 never produced explanations. Others, whether under the spell of the Great Exile or not, found the explanation in the early appearance of Public Law in Hungary when countries in Western Europe were still debilitated by ‘feudal divisions’. This thesis became the hard core of the argument for exceptionalism for many a year. We have seen that the jurist Csemegi argued in 1862 that, while elsewhere the question was still hotly debated, in Hungary the question of sovereignty had been, centuries before, settled on the crown, a corporation of the king and the nobility.370 Hajnik, the legal historian371 and István Toldy, a liberal political writer,372 both wrote in the same vein shortly after the 1867 Settlement.

364 Péter, ‘Montesquieu’s Paradox’, pp. 161–62 below. Apart from critics there were, particularly after 1848, supporters too of the parallels abroad, particularly in Britain, e.g. Joshua Toulmin-Smith, Parallels between the Constitution and Constitutional History of England and Hungary, London, 1849. 365 Hajnóczy József közjogi-politikai munkái, ed. Andor Csizmadia, Budapest, 1958. 366 For example, in the Falu jegyzője, Eötvös in 1845. 367 Concha ‘Az angolos irány’, esp. pp. 213–14. 368 Eckhart, ‘Jog és alk. tört.’, p. 300. Only the fĳirst edition contained the jeer, which was replaced in the second edition by an inofffensive passage. Eckhart thought that instead of parallels with the British, they existed with respect to the Bohemian and the Polish institutions, pp. 296–303. 369 See, for instance, his statement, made in London in 1858, in László Péter, ‘Language, the Constitution, and the Past in Hungarian Nationalism’, p. 196 below. 370 See p. 76 above. By contrast, the leading jurist Virozsil in the same period referred only to the similarities between Magna Carta and the Golden Bull: Staats-Recht, 1, p. 270 n. d. 371 Imre Hajnik, Magyar alkotmány és jog az Árpádok alatt, Pest, 1872, pp. 270–71. 372 Toldy, Régi M. orsz., pp. 220–23. the holy crown of hungary, visible and invisible 89

Representatives of the dogmatic law school pressed the point further in the 1890s. Concha, as we have seen, while rejecting the claim to the parallels with England, argued that the special features of the Hungarian constitution could be found nowhere else.373 Ernő Nagy, with the zeal of a recent convert, added that the Hungarian institutions were ‘even more constitutional’ than English counterparts.374 Timon too argued that Werbőczy’s ideas were superior to the English constitutional ideas.375 The scholars’ assertions soon found their way to the wider public. In 1892 Gusztáv Beksics, the cleverest liberal political weathercock, introduced his most popular pamphlet with two themes: (i) the Hungarian nation’s legal institutions were superior even to those of the English and (ii) the jura reservata (taken over from German state theory) was a false doctrine as regards Hungary where king and nation merged into the Holy Crown entirely and where the monarch exercised only those powers that were expressly transferred to him by the nation.376 All rights were under the control of the nation.377 These themes were then varie- gated in speeches by politicians: ‘Nowhere else in the world exists the ideal content of the (Hungarian) crown’, opined an Independentist deputy.378 Apponyi referred to the Holy Crown doctrine as the ‘masterpiece of the nation’s constitutional genius’, unparalleled in the world.379 Hungarian exceptionalism formed the hard core of the claim that Hungary possessed a ‘thousand year old constitution’ at the millennial celebrations in 1896.380 Yet the seemingly unison rhetoric contained diffferent trends.

373 P. 88 above. Ödön Polner in his study on the legal connection between Hungary and Austria also inferred Hungarian exceptionalism from the corporate political concept of the Holy Crown: Magyarország és Ausztria közjogi viszonya, Budapest 1891, pp. 62f, 107. 374 Ernő Nagy, ‘A magyar alkotmány állandósága, Jogtudományi Közlöny, 19 June 1896, p. 193; idem, Közjog, 1901, fourth edn., pp. v–vi; see also the inflated claims about the Hungarian constitution in Kmety, Közjog, 1911, fĳifth edn., pp. vii–xxxi. 375 Timon, Ung. Verfassungsgesch., pp. 512–13; see also Albert Deák, Parlamenti kormányrendszer Magyarországon, 2 vols, Budapest, 1912 (hereafter, Parl. korm.), 1, pp. 48, 65. 376 Gusztáv Beksics, A dualizmus, Budapest 1892, pp. 1–2. 377 Ibid., p. 6. 378 László Rátkai, 15 November 1902, Képv. napló, 8, p. 418. 379 Count Albert Apponyi, 9 July 1904, Képv. napló, 26, p. 346. 380 A rather arbitrarily selected year for the anniversary of the conquest of Hungary. See János M. Bak and Anna Gara-Bak, ‘The ideology of a “Millennial Constitution” in Hungary’, East European Quarterly, 15 (Sept. 1981), 3, pp. 307–26; Karpat, ‘Die Idee’ in Hellmann’s Corona, pp. 349–54. Notwithstanding all the criticism that Hungarian exceptionalism has received over the years, its remnants are still around today. ‘In east-central Europe Hungary has been the only nation—said a historian to a journalist—that has possessed a thousand-year-old independent statehood’: Napi Magyarország, 19 Aug 1999, p. 5. 90 chapter one

The Impact of the Doctrine

Political rhetoric is never uniform. Only a part of the political class and literati accepted and used the new vocabulary of the doctrine which made headway in the 1890s. In the legal profession most of the Publicists and legal historians swallowed it hook, line and sinker, while the Civilians, the civil servants and conservative academic historians were seemingly reluctant. In parliament, the growing number of Independentists and Apponyi supporters, who stood poised to take away from the monarch his army rights, grasped the doctrine with both hands. Predictably, the Liberal establishment and the government remained lukewarm. The Budapest (progressive, Jewish) professional and business classes were rather flabbergasted. The crown tradition, visible and invisible, formed a prominent part in the pomp and ceremony with which the millenary of the conquest, the honfoglalás, was commemorated in 1896.381 Yet the new doctrine was missing from the speeches of the 67’er Liberals in offfĳice. Likewise, after the turn of the century when the Opposition in the House began to demand the introduction of Hungarian as the language of command and service in the Hungarian regiments of the common army. The incompre- hension between the traditional rhetoric, in which crown and nation were juxtaposed, and the new rhetoric engendered by the doctrine, which insisted that the king, through the crown, merged in the nation, led to a head-on clash between the government and the Opposition.382 Supporters of the doctrine urged people not to use the word ‘crown’ for the monarch.383 The dictum that ‘it is not the monarch who inherits the crown but the crown that inherits the monarch’,384 when crown and nation became synonymous, showed the utility of the doctrine for those

381 See note above. 382 ‘Orthodox’ liberals even after the turn of the century juxtaposed ‘nation’ and ‘crown’—this being the language of Deák who held that the 1867 Settlement was a contract between two actors in which they mutually recognized each other’s rights. When, however, the head of the new government Count István Tisza warned in his policy speech on 6 November 1903 about the consequences of any conflict over the language of the army, and urged harmony between the ‘nation’ and the ‘crown’, József Madarász, Independentist old hand, interjected: ‘The crown is ours! The country’s’. ‘Therefore the language ought to be Hungarian’—added another Independentist: Képv. napló, 28, pp. 280–81. See also encounter with minister Fejérváry in the House p. 69 above. 383 Gejza Ferdinándy argued that the usage was in conflict with the principles of the constitution and the independence of Hungary and that either the usage or the doctrine of the Holy Crown had to be abandoned: Korona és monarchia, Budapest, 1903, p. 11. 384 István Csekey, A magyar trónöröklési jog, Budapest, 1917, p. 14. the holy crown of hungary, visible and invisible 91 who were set to deprive the monarch of his army rights. It was not a coincidence that it was Apponyi who, in the Great Defence Debate of 1889, had transferred in his speech the presumptio juris of the monarch’s army reservata to parliament, turned out to be ‘the most efffective propagator’ of the doctrine385 at home and also abroad.386 And his growing influence in politics between 1903 and 1905 led to the attempt by parliament to tilt the constitutional balance against the crown. The issue was now the changeover to parliamentary government, replacing the balanced constitution which Deák had secured back in the 1867 constitutional Settlement. Apponyi became the leading force in the Coalition that plunged the country into the constitutional crisis in 1905. The doctrine turned up in speeches that justifĳied ‘national resistance’ against the ‘unconstitutional’ Fejérváry government.387 After Franz Joseph had emerged from the crisis with his prerogative left intact and Sándor Wekerle’s Coalition government was appointed in April 1906, the doctrine acquired semi-offfĳicial status, for the Coalition, although defeated, did not abandon its aspiration to have a separate Hungarian army. Apponyi, now as a minister of the crown, sponsored publications in which he set out the doctrine at length.388 Yet the doctrine failed to become Hungarian offfĳicial ideology in the life-time of the Monarchy. The Wekerle government turned out to be short-lived; Franz Joseph allowed it to disintegrate in 1909. Tisza’s reorganized 67’ers were back in offfĳice and the doctrine of the Holy Crown was put on the backburner. It was a pointer to the reservations with which the Khuen-Héderváry government treated the doctrine that when a new Chair was established in Public Law at the Law Faculty in Budapest in 1911, the Faculty (in which Concha, Timon and

385 Gyula Szekfű, Három nemzedék és ami utána következik, third edn., Budapest, 1935, pp. 399–400. 386 Count Albert Apponyi, ‘Le parlement de la Hongrie’, in Annuaire du Parlement, 4e année 1901, Paris, 1902, ch. 10, pp. 864–958, esp. pp. 880–82; idem, A Brief Sketch of the Hungarian Constitution, Budapest, 1908, esp. pp. 16–18; ‘The Hungarian Constitution’, in Hungary To-day, ed. Percy Alden, London 1909, pp. 103–208, esp. 123–25 (the three publications are essentially identical). 387 See, for instance, the speech by Baron Dezső Prónay at the meeting of the ‘leading county’, Pest on 20 June 1905, József Horváth, Az 1905/6. évi vármegyei ellenállás története, Budapest [1907], p. 299; on the constitutional crisis see Péter ‘Verfassungsentwicklung’, pp. 451–61. 388 See note 386 above. The teaching of Concha, Timon and Kmety was also accepted by the Coalition’s foreign supporters. See, for instance, C. M. Knatchbull-Hugessen’s The Political Evolution of the Hungarian Nation, 2 vols, London, 1908, see esp. 1, pp. 39, 90–91, etc. Its robust pro-Coalition political bias was pointed out by a critical review in The Saturday Review, 16 January 1909, p. 81. 92 chapter one

Kmety were all professors) invited Count Apponyi and submitted the proposal to minister Count János Zichy. The government, however, ‘refused to make the appointment on political grounds’ and the chair was eventually fĳilled by Ernő Nagy389—a scholar not interested in the political implications of the doctrine. Paradoxically, the doctrine of the Holy Crown acquired a dominant position in public life only after the collapse of the Monarchy. Once the old political order was restored following the revolutionary period, without the monarchy, in 1920, the doctrine was elevated as the offfĳicial ideology of the regime. As we have seen, the Law of 1930 ordained that the judges should pass sentences ‘in the name of the Hungarian Holy Crown’.390 After the dissolution of the Austro-Hungarian Monarchy neither state independence nor the reserved rights of the monarch were any longer relevant contentious issues. The kingdom was formally restored in 1920. But as the Western Powers did not allow the king to return, the legitimacy of the regency was bolstered by the elevation of the doctrine to offfĳicial ideology. An obvious reason for the prominence accorded to the doctrine was that within the new political élite the former Independentists rather than the 67’ers possessed the upper hand. But the chief reason for the doctrine’s elevation must have been the territorial question. Hungary did not accept as fĳinal the Trianon Treaty of 1920, which disposed of more than two-thirds of Hungary’s former territory. The justifĳication for the ‘revisionist’ policies pursued by successive Hungarian governments after 1920 became the dominant context in which the Holy Crown appeared. When between 1938 and 1940 parts of the lost territories were reattached to Hungary, according to the enacting laws, these parts ‘returned to the body of the Hungarian Holy Crown’.391 The triumphalist flourish by the writer Ferenc Donászy in 1941 invoking the magic of St Stephen’s Crown (once more mixing up the visible and the invisible) stands for many others dating from the period.392

389 Eckhart, A jogi kar tört., pp. 621–22. 390 See pp. 54–55 and note 187 above. 391 See p. 58 and note 205 above. 392 ‘The magical unity […] of the Holy Crown’s body brings together the empire of St. Stephen from the green leaves of the Carpathian slopes down to the blue Adriatic. The idea and the binding force of the Holy Crown proved stronger than the rule of the Ottoman crescent lasting one and a half centuries; it proved stronger than the sufffocating clutches of the German imperial eagle and stronger than the chains forged in Trianon. By now all these are far gone while the crown of St Stephen shines with the light of nine hundred years. And we believe, we believe with inextinguishable faith that St Stephen’s empire will be reunited in the Danube basin.’ Quoted by Bertényi, Szent Korona, p. 164. the holy crown of hungary, visible and invisible 93

It became the ironic fate of the doctrine that just about the time when it was, at last, elevated to the level of offfĳicial ideology, it sufffered a devas- tating blow from the pen of the leading legal historian which undermined its credibility. Before turning to that subject, however, we have to examine the political efffĳicacy of the doctrine.

The Utility of the Doctrine

The Holy Crown doctrine undoubtedly possessed utility. The mystery of the whereabouts of sovereignty in the Habsburg Monarchy was not merely an intellectual puzzle. The assimilation of the German dogmatic school’s vocabulary into Hungarian constitutional discourse and the concept of the personality of the State, in particular, highlighted long-standing problems of constitutional balance. Power was still tilted too heavily in favour of the monarch. As king, the executive power was formally vested in Franz Joseph, although he exercised it through a ministry that was responsible to him as well as parliament. In legislation, the monarch was equal partner with parliament.393 Over and above these rights, the monarch possessed powers that were entirely outside the control of the Hungarian parliament. Franz Joseph, as emperor, was the monarch of the Lands represented in the Reichsrat—the stronger partner in the Dualist relationship. Above all, he had near complete personal control over the Monarchy’s common institutions, including the army buttressed by long-standing legal presumption. The Holy Crown doctrine, by revers- ing the legal presumption that hitherto buttressed the king’s reservata, undermined (potentially) the security of the prerogative. It subordinated the common monarch’s rights to the legislation of the crown’s total corpus within which the monarch was said to be a mere ‘organ’.394 Although the doctrine did not resolve the juristic problem of the whereabouts of sovereignty, an intractable one for Austria-Hungary,395 its

393 To describe the king’s participation in legislation as ‘veto power’ is a common enough mistake of scholars. See Péter, ‘Verfassungsentwicklung’, pp. 412–14. 394 See above (Concha) pp. 83f. On the lower level of a well-known Independentist ring- leader, this point was understood as: ‘The claim that the army belongs to the nation rather than the king means the strongest loyalty, because, according to the splendid impre- scriptible theory of the Holy Crown, all nobles used to be its members in the past, just as all Hungarian citizens are today. But his Majesty the king is also a member’. Géza Polónyi in the debate on the new government orders on the coat of arms and flags, 1 December 1915, Képv. napló, 27, p. 288. 395 As, for instance, James Bryce argued in his Studies in History and Jurisprudence, Oxford, 1901, 2, pp. 91–92. 94 chapter one creation was, by any standard save historical veracity, a considerable political achievement on the part of the Law Faculty of Budapest University. The refashioning of Hungarian constitutional history, as we have seen, bolstered the claim to a thousand-years’-old constitutional life. Also, it reduced the much-lamented dependence on German scholarship and asserted the legal sovereignty of Hungary without making inefffective the constitutional dualism of crown and nation. Although the doctrine itself was not politically radical, forged at a time when crown and parliament were gingerly moving towards major confrontation, it undoubtedly helped the latter side. Its efffectiveness, however, should not be overrated. Strictly speaking, parliamentary government did not necessarily follow from the doctrine. We can distinguish at least three diffferent positions taken up by those who professed to adhere to the doctrine: 1. For Count Albert Apponyi it followed from the doctrine that government in Hungary was parliamentary, at least in the sense that ultimate control over policy was already vested in parliament. Because of this belief he left the Liberal party in 1903, joined the Independentists in the following year and became the drafter of the Address in April 1905 during the constitutional crisis in which the House demanded that the crown should appoint a government ‘such as would have the House’s confĳidence’.396 The Coalition claimed that Law III of 1848 had already established parliamentary government in Hungary. Among the leading jurists Károly Kmety, himself an Independentist deputy, likewise represented the radical interpretation of the doctrine. Yet it would be premature to rush to the conclusion that we have the key in hand to understanding the politics of the doctrine. 2. Quite unexpectedly, the maker of the doctrine, Győző Concha (unlike Apponyi) failed to whistle in the dark. He understood that Hungary did not (and could not as yet) have parliamentary government. The Politics professor attacked in an article the Coalition’s claims: the 1848 Laws did not establish parliamentary government for that system was, wherever it existed, an informal convention rather than a legal institution and in Hungary the convention had not yet evolved.397 Concha

396 Péter, ‘Verfassungsentwicklung’, pp. 453–54. 397 László Péter, ‘The Aristocracy, the Gentry and Their Parliamentary Tradition in Nineteenth-Century Hungary’, SEER, 70, 1992, 1, pp. 77–110 (107–08). the holy crown of hungary, visible and invisible 95

also developed doubts about the efffĳicacy of the doctrine in practical politics.398 Albert Deák, author of the fĳirst monographic study on the Hungarian political system and a fĳirm believer in the doctrine (even after the fĳiasco of the 1905–1906 constitutional crisis), was more optimistic than Concha: it was the mission of the Holy Crown principle that the nation should acquire ‘the dominant weight’ in the working of the State.399 3. The problem with the doctrine was (apart from being quite unrealistic about the balance of efffective power in the Austro-Hungarian Monarchy) that, as it did not abandon the duopoly of king and nation, the monarch could use it as much as parliament. In the royal Rescript, which reappointed the Fejérváry cabinet in October 1905, Francis Joseph (emphatically and for the fĳirst time) styled himself as ‘the wearer of the Holy Crown’.400 Further, Bertalan Lányi, Minister of Justice in the Fejérváry cabinet, in setting the record straight after the crisis, abundantly used Timon and Kmety’s work. But he inferred from the doctrine the dominance of royal power and rejected the claim that Hungary had a parliamentary system of government.401 All in all, the efffectiveness of the doctrine was more limited than is frequently assumed. The appeal of ideologies, however, does not ultimately depend on their utility in its narrow sense but on other factors.

398 Concha understood that the function of the doctrine was the replacement of structural dualism by a body politic in which the political will was unifĳied. In an article he condemned parliamentary fĳillibustering in 1904. Later, in 1921, he wrote with some resignation that the Sacrae Coronae Corpus did not function properly as the concept of the legal State because the head and the members, as in the Middle Ages, were connected by contracts rather than laws, Hatvan év, pp. 183, 570–71. 399 Deák, Parl. korm., 1, p. 188. 400 16 October, József Kristófffy, Magyarország kálváriája, Budapest, 1927, pp. 260–61. That most astute political observer in Vienna reported to P.H.S. London that ‘the passage in which the Monarch styles himself not King or ruler, but “wearer of the sacred crown” of St Stephen, is particularly signifĳicant, since, according to Hungarian constitutional theory, kingship resides in the holy crown itself, and not legally in the person who may inherit the right to wear it unless and until that person has been duly crowned with it according to the traditional Hungarian ritual and after giving the traditional and clearly defĳined pledges concerning the inviolability of the Constitution. The phrasing of the rescript thus contains a defĳinite reminder to the Hungarian people that the King is in possession of full constitutional rights, of which he is minded to make use, just as he is determined not to sufffer any encroachment upon the independence and sovereignty of the Hungarian nation’. H. W. Steed, The Times, 19 October 1905. 401 Bertalan Lányi, A Fejérváry-kormány, Budapest, 1909, esp. pp. 204–22. 96 chapter one

Against the Current: Eckhart

While the traditions and innovations of the visible crown (at least until recent years) have hardly ever caused dissent,402 innovations about the invisible crown frequently did so. The doctrine of the Holy Crown, despite its enthusiastic reception by the Independentist wing of the political class, with the charismatic Count Apponyi as its most ardent promoter, remained a contested product of the dogmatic law school. At the end of the nineteenth century, cultural life, outside the parliamentary oligarchy of the aristocracy and the gentry, was largely urban, progressive and dependent on support from the Jewish business classes. Predictably, the Holy Crown doctrine had no appeal to this bourgeois counter-élite whose journalists gave short shrift to it.403 It was as much as one would have expected. Surprisingly, however, the 67’er Liberal establishment (by no means being all king’s men) were also resistant to the reception of the doctrine. Most of them kept their heads down but a few spoke up. Jenő Balogh, a Criminalist at the Budapest Law Faculty, attacked Timon for his claim that the development of the Hungarian legal system was largely indigenous and superior to other European legal systems. Balogh deplored ‘the patriotic clamour’ which surrounded the reception of Timon’s book.404 The Romanist and Civilian Gusztáv Szászy-Schwarz ridiculed the whole literature on the Holy Crown doctrine and treated it as trash.405 Whereas these strictures were largely ignored by the adherents of the doctrine, Henrik Marczali’s ‘Hungarian Constitutional Law’ published in Paul Laband’s series in German406 led to a public scandal and Hungary’s leading historian407 was ostracized. Marczali distinguished the uses of the ‘crown’ (signifying the State) from those of the ‘Holy Crown’ (which referred to the Lehensgewalt, the royal land-donation only).408

402 Joseph II’s measures might have been the sole exception, see above pp. 31–32. 403 A typical example is the pamphlet of Oszkár Gellért, A szent korona tan hazugságai (The lies of the doctrine of the Holy Crown), Budapest, 1908 in which the author rejects the doctrine as sham-constitutionalism. 404 Jenő Balogh, ‘A jogtörténet tanítása hazánkban’, Budapesti Szemle, 122, 1905, pp. 161–97 (pp. 167, 179). 405 Gusztáv Szászy-Schwarz, Parerga, Budapest, 1912, pp. 448–55. 406 Marczali, Ung. Verfassung, and see notes 159 and 221 above. 407 G. P. Gooch wrote: ‘Not till the emergence of Marczali did Hungarian historiography break the shackles of a narrow patriotism. His [works] represent the highest achievement of Magyar scholarship’. History and Historians in the Nineteenth Century, London, 1952, p. 400. 408 Marczali, Ung. Verfassung, pp. 25–29. the holy crown of hungary, visible and invisible 97

This accurate reading of Werbőczy, together with much else of Marczali’s views, inspired a long-winded and vicious attack by Ödön Polner, a leading Publicist, who dismissed the book as a dilettante work.409 The attack marked the beginning of Marczali’s isolation. These objections were expressions of dissent rather than critical analysis of the new literature and they appeared in the last years of the Monarchy. There were no dissenting incidents in the 1920s, a decade during which the doctrine, for the fĳirst and the last time, enjoyed a monopoly position in government and academia.410 After 1920, with the (alien) royal power in abeyance, the doctrine lost its raison d’être (Deák’s usage ‘the lands of St Stephen’s Crown’ adequately supported territorial revisionism). Yet it came as a bolt from the blue when, in 1931, a reputable conservative law professor examined and repudiated the doctrine and much of the new legal-historical literature on grounds of scholarship. From now on historians had an ‘open season’ on Timon’s theories. Ferenc Eckhart was appointed to the chair of Constitutional and Legal history at the Law Faculty in Budapest in 1929. His fĳifty-page essay on Hungarian legal scholarship, which appeared in a volume on new historical methods,411 edited by Bálint Hóman, a leading medievalist, created a mighty row. This reached even parliament where Eckhart was reprimanded by the Minister of Justice because of his injudicious treatment of views that were in the ‘sanctuary’ of national feeling. The Minister of Education, pressed by the Hungarian Academy, had to come to the rescue of the professor by making a conciliatory statement. The publication of the essay, as Eckhart bitterly remembered years later, nearly cost him his chair.412 He went on working on the subject, however, and ten years later

409 Ödön Polner, ‘Magyar közjog német nyelven’, Jogállam, 11, 1911, pp. 337–62 and 417– 43. What particularly upset Polner was that Marczali, by denying the legal unity of rex and regnum and emphasizing their legal dualism let the cat out of the bag. See p. 345. 410 Although on specifĳic points historians sometimes criticized Timon’s doctrine, e.g. R. István Kiss on aviticity, ‘Nagy Lajos és az ősiség’, in Emlékkönyv gr. Klebelsberg Kunó negyedszázados kulturpolitikai működésénik emlékéte, Budapest, 1925, pp. 241–48 (p. 248). See also Timon, Ung. Verfassungsgesch. pp. 555–56. Gyula Szekfű also criticized Timon’s work although not his view of the Holy Crown doctrine but Timon’s insistance in reading Werbőczy’s ideas into the early Middle Ages: A magyar állam életrajza, 2nd edn., Budapest, 1923, pp. 227–28. Szekfű, like the rest of historians was a fĳirm believer in the doctrine:ibid. , pp. 69–70. 411 Eckhart, ‘Jog és alk. tört.’ (see notes 51 and also 91 above), pp. 269–320. 412 Ferenc Eckhart, Magyar alkotmány- és jogtörténet, Budapest, 1946, p. 3. In parliament the Minister of Justice, Tibor Zsitvay, censured Eckhart’s essay but the Minister of Religion and Education, Count Kuno Klebelsberg defended the principle of free speech. On the ‘Eckhart debate’ see Elemér Mályusz, ‘Az Eckhart vita’, Századok, 65, 1931, pp. 406–19 (still 98 chapter one was able to publish his comprehensive monograph on ‘the History of the Holy Crown idea’ which, sixty years later, is still the only proper historical analysis available on the subject. The book silenced his opponents for a few years.413 Eckhart argued in 1931 that because the Habsburg Monarchy had ceased to exist, an impartial examination of constitutional questions could no longer be labelled as unpatriotic. It was now time to look at the historical claims the jurists and legal historians had made before 1918.414 Each period of the constitution should be discussed in its own terms rather than ‘bringing concepts into the past that are quite alien to it’.415 Laband’s Hungarian disciples regularly erred in this respect: they treated the medieval legal material in terms of modern concepts like ‘sovereignty’ and the ‘personality of the State’.416 They lived in a magyar glóbusz claiming exceptionalism for Hungarian legal developments. The jurists postu- lated the principle of a thousand-year-old constitution as a continuously existing system of unifĳied public law which Hungary possessed before any other nation in the West. This was hardly more than ‘muscle-flexing chauvinism’ on the part of the dogmatic School.417 It was particularly painful for many of Eckhart’s readers that he insisted on Czech and Hungarian constitutional developments being analogous.418 Eckhart set out a programme and a conceptual frame within which the growth of Hungarian political institutions should be explored. He concluded on the point that, as elsewhere, in Hungary the monarch and the subjects were connected through contracts in the Middle Ages and later (for instance, the royal Oath, the capitulationes and the decreta), because ‘the unifĳied system of public law, the characteristic of the modern state was missing’.419 The jurists and many politicians on the right were dismayed and alarmed. An articulate but noisome attack on Eckhart’s views, written by Kálmán Molnár, professor in Pécs, added little to the subject despite its outlandish

the best); József Kardos, ‘Az Eckhart-vita és a szentkorona-tan’, Századok, 103, 1969, pp. 1104–17 (pedantic); Bertényi, Szent Korona, pp. 161–64 (informative). 413 Eckhart, Szentkorona, see note 62 above; for its German summary see Karpat ‘Die Idee’, see note 91 above. 414 Eckhart in 1931 was the pathfĳinder but other scholars soon set out on the same route. Emma Bartoniek, Péter Váczy, József Deér and György Bónis all looked at the subject from a new perspective. 415 Eckhart, ‘Jog és alk. tört.’, pp. 281–82. 416 Ibid., p. 282. 417 Ibid., pp. 304–06. The last phrase and a few other offfensive phrases were deleted from the second edition (1931) of the volume. The changes did not efffect the argument. 418 Ibid., pp. 300f. 419 Ibid., p. 320. the holy crown of hungary, visible and invisible 99 argument. Scholars should be able to ‘rise above’ the contradictory historical data in order to ‘abstract their spirit’. The ‘distillation of their substance through jurisprudence’ was the doctrine of the Holy Crown.420 In parliament a member lamented the fact that ‘a fĳine illusion was once again torn out of the soul of Hungary’s youth’.421 When, ten years later, Eckhart carried out his programme and published his study on the history of the Holy Crown, long overdue basic information was at last furnished on the subject.422 Eckhart set hundreds of corona passages in their institutional context and interpreted the rich variety of ideas which the term represented at one time or another. In fact, notwithstanding the title of the book, Eckhart did not look for a ‘concept’ with a set of defĳinable properties to which the crown uses could be adduced. He describes how the term took on new meanings, frequently without losing old ones. In other words he takes it for granted that the term, like most other political terms, is multivocal. Another notable feature of his work is that it is nearly as much about regnum and ország uses as it is about corona. For this reason, Eckhart’s analysis sheds light on the fundamental structural feature of Hungarian political institutions: the complementarity of monarchic and ország powers. Yet he abandoned a position in 1941 which he had held before. We have seen that Eckhart in 1931 treated corona and regnum as two distinct loci of authority because, before the nineteenth century, ‘a unifĳied system of public law’ did not exist.423 Statements in similar vein may be found throughout Eckhart’s works before 1941. He wrote in 1928 that ‘the concept of State as a legal person’ appeared in Hungary (as elsewhere) in the eighteenth century.424 During the debate in 1931 he argued that the king and regnum had stood in respect of each other as two distinct legal persons.425 In 1933 he wrote,

420 Kálmán Molnár, Alkotmánytörténeti illuzió-e a magyar alkotmányfejlődés jellegzetes közjogi iránya?, Pécs, 1931, pp. 29 and 54; see also Móric Tomcsányi, ‘A magyar közjog és jogtörténet téves szemlélete’, Magyar Jogi Szemle, 1931, pp. 271–94; Miklós Nagy, ‘A szent korona eszméje’, in Serédi, Emlékkönyv, pp. 269–307, and esp. pp. 305–06. On Eckhart’s side though not in complete agreement with him on every point, see László Erdélyi, Az ezeréves magyar alkotmány, Szeged, 1931, esp. pp. 20–26. 421 Sándor Kálnoki Bedő in parliament, Budapesti Hírlap, 8 March 1931, quoted by Kardos, ‘Az Eckhart-vita’, p. 1112. 422 Eckhart, Szentkorona, pp. 3–4. 423 Eckhart, ‘Jog és alk. tört.’, p. 320 and earlier: ‘the concept of the personality of the State did not exist in the Middle Ages’, p. 282. 424 Eckhart, A volt monarchia, pp. 5–6. The concept of the state in the Habsburg Monarchy appeared under Maria Theresa. 425 Eckhart, Alkotmányfejl., pp. 15–16; he also surmises, however, that these ‘dualistic features’ might have been induced Werbőczy to ‘formulate the Holy Crown doctrine’ in order to influence the attitudes of the king and the ország. 100 chapter one in relation to the Bocskay uprising, that ‘the concept of state unity between the king and the estates was missing’; the two sides were independent.426 In contrast, by 1941, Eckhart has changed his position in his book. He fell in line with communis opinio and held that the ‘concept of the State’ had appeared in Hungary already in the Middle Ages.427 This could be one of the reasons why Eckhart’s work enjoyed a good reception: praise and accolade were showered on the author by the reviewers without a dissenting voice. Most of the reviews were concerned with the medieval periods and, by 1941, no established scholar was inclined to defend Timon’s school. But Eckhart’s book never received, at least in Hungary, the close attention and critical comment it would have undoubtedly deserved. This was particularly so for the modern periods. As far as I know the only review that took the argument further was by the medievalist József Deér in Századok. He also pointed out that Eckhart’s use of the term ‘state’ was inconsistent.428 Szekfű wrote a splendid, informative article for Magyar Nemzet.429 The historians, argued Szekfű, had never touched even with a barge-pole the theories with which the jurists430 embellished Werbőczy. At last, however, with Eckhart’s work, so Szekfű explained, we have evidence of the ‘thousand years old Holy Crown idea’, the product of our ‘national genius’.431 This was devastation; Szekfű, unwittingly, emasculated Eckhart’s seminal study by explaining something into it which it was Eckhart’s avowed purpose to reject. At any rate, within a few years the ancien régime was swept away by the Red Army and historians in the new regime turned their back on subjects like corona and regnum. Marxist historians in the 1950s were primarily concerned with economic change and social progress rather than ideology—except when they denounced bourgeois historians for their reactionary views. This was the context in which the ‘crown’, without any adjective,432 occasionally turned up in historians’ conferences and writings. The task of political rhetoric was the debunking of religion and nationalism. And now Eckhart

426 Ferenc Eckhart, ‘Bocskay és híveinek közjogi felfogása’, in Károlyi Árpád emlékkönyv, Budapest, 1933, pp. 133–41 (p. 134). 427 In the late fourteenth century, see note 112 above. 428 Deér, ‘A szentkorona’, see notes 110 and 112. 429 30 March 1941, republished in Gyula Szekfű, Állam és nemzet, Budapest, 1942, pp. 304–11. 430 Szekfű even lists their names: ‘Timon, Kmety, Concha and Ernő Nagy’, ibid., p. 305. 431 Ibid., p. 311. 432 The Communist authorities even in the 1970s were peevish on this point, see Bertényi, Szent Korona, p. 5. the holy crown of hungary, visible and invisible 101 became the Prügelknabe for the ‘bourgeois’ sins of the Holy Crown doctrine. Márton Sarlós, communist old hand elevated to a chair in the Law Faculty in Budapest, launched in 1954 a venomous attack mitigated only by pomposity: Eckhart was denounced as anti-Marxist, indeed he was worse than even his predecessors.433 He was a racist, stirred up revisionist propaganda, and served ‘Horthy Fascism’.434 Sarlós also rejected Eckhart’s method for it was primarily concerned with words, i.e., trivia.435 He never stopped denouncing Eckhart and the Holy Crown theory as anti-Marxist etc. and, after Eckhart’s death he went on denouncing Eckhart’s student, György Bónis.436 Comrade Sarlós did not have followers and by the 1960s the Kádár regime had eased up on the ‘class enemy’ and become less intolerant towards non-Marxist views and methods in history, at least for the periods before 1917. Ideological purity was not needed as long as the Socialist system was able to satisfy the expectations for better living conditions.

Revival

The oil crisis in the 1970s and much else beside shattered the regime’s optimistic expectations about the efffectiveness of its economic reforms. It was then that the regime rediscovered the efffĳicacy of the national idea as a way of gaining political support. One of the moves through which the regime was willing to meet Hungarian national feeling halfway involved the crown tradition. The regime now put out feelers to Washington as to whether the government of the United States would be prepared to return St Stephen’s Crown; after some footwork the Americans were. The

433 Eckhart ‘did not only accept the doctrine of the Holy Crown in its entirety, in fact in religious mythology and the ultra nationalist chauvinism he went even further than Timon’, Márton Sarlós, ‘A szellemtörténeti irány és a magyar jogtörténetírás’, Jogtudományi Közlöny, 11, 1956, pp. 87–103 (p. 88). 434 Márton Sarlós, ‘Az organikus és a szentkorona-államelmélet a magyar történetírás- ban’, Magyar Tudomány, 1960/3, pp. 111–22 (p. 111). 435 ‘This method which interprets charters is only interested in words (like corpus, membrum) and deduces the general principle of organic state theory’, instead of examin- ing the class structure. ‘I must confess I cannot appreciate the historical method that having found little florid passages in documents, façon la parler, will construct a great edifĳice following his whim’. Márton Sarlós, ‘A “Szent Korona Tan” kialakulásához’, Jogtudományi Közlöny, 1959, July–August, pp. 357–62 (359, 360). 436 Márton Sarlós, ‘A feudális parazitizmus a kiegyezés utáni jogszabályainkban és a magyar jogtörténetírásban’ in Jogtörténeti tanulmányok, 2, ed. Andor Csizmadia, Budapest, 1968, pp. 273–85 (pp. 276–77). 102 chapter one

Hungarian government promised that the crown would be put permanently on public display. The ceremony of the crown’s handover in parliament in January 1978 was a rather quiet afffair.437 The crown and the other regalia were exhibited afterwards in a glass case in the National Museum and people began to flock to see them. Through the public display of the ‘Hungarian crown’ (as it was generally referred to at the time), the regime claimed that it was not insensitive to the national traditions of the past. Also, the regime was to demonstrate its international acceptance. Otherwise the crown was not to be exploited for political purposes. Nor was there any demand to do otherwise outside the party. The crown was a national relic, a treasure that belonged to the past, as such its place was in the National Museum. The historian Iván Bertényi may have expressed a general attitude in 1978: The idea of the holy crown has ceased to be an efffective political ideology. Today only legal and other historians are concerned with it.438 Activists on the political right (outside the circle of scholars), however, began well before 1989 to take an interest in St Stephen’s crown, together with the Holy ‘Dexter’, as hallowed relics of Hungarian national identity. As much could be predicted, but the revival of the tradition of St Stephen’s Crown had a more specifĳic context in the 1980s: it served as a catalyst of political change, or so it is claimed. Géza Jeszenszky recalled twenty years after the event that the American gesture to return the crown was intended towards the Hungarian people rather than towards the government. The handing back of the crown was tied to agreed conditions and guarantees. This was why hundreds of thousands soon came to admire the Holy Crown and the other regalia exhibited in the National Museum. And this set in train an unpredictable transformation in Hungarian society. The ancient relic without which (as Cardinal Gentile, papal nuncio, had reported in the fourteenth century) power was not legitimate, performed a real miracle. Hungarians, falling to their knees in front of it, chastened from the efffects of Communist brainwashing, shed the complexes of national inferiority and shame and the disparagement of national inheritance and

437 The Hungarian regalia, including St Stephen’s Crown, were brought to Budapest from the United States by a delegation headed by Cyrus Vance, Secretary of State, and handed over to the President of Parliament on 6 January 1978. The agreement between the two states stipulated that the crown should be exhibited for the public in an appropriate place: Katona, Korona, p. 566. The visible crown in Hungary had, of course, been in the past quite invisible and used only for coronations. Its visibility is once more restricted today: Radnóti, ‘Üvegalmárium’, p. 55. 438 Iván Bertényi, A magyar korona története, Budapest, 1978 (in fact the fĳirst edition of author’s Szent Korona), p. 149. the holy crown of hungary, visible and invisible 103

traditions. The Holy Crown gave them the strength and courage to censure the regime more openly. Hungarians raised their heads and began to think for themselves.439 After the collapse of the communist regime Holy Crown societies, with their own publications, were formed by conservative groups. For them the crown, the visible and the invisible Holy Crown, was not a respectable relic of national identity, something to be tucked away in a museum. Rather, it was an integral part of the present, a living tradition and a part of national identity in this sense.440 It has even been argued either that the doctrine of the Holy Crown was still valid constitutional law or that parliament ought to recognize it as such.441 We can only surmise what may have motivated these groups. Preoccupation with the past has always been a Hungarian pastime. But nostalgia apart, the indigestible shock of Trianon,442 the desire to re-establish closer links with Hungarians living beyond the borders and sometimes even flirtation (in a coded language rather than overtly) with the idea of border revision have been obvious factors. There is not much evidence that either the new political class or the public has taken these groups seriously. Their position and political support has been marginal.443 Nevertheless, since 1989, the Holy Crown tradition has been reincorporated into the country’s political discourse.444 After heated arguments

439 Géza Jeszenszky, historian and Hungary’s foreign minister between 1990 and 1994, referred to the 1998 statement by American ambassador Peter Tufo that the gesture in 1978 had indeed been towards the people and not the government. ‘A gesztus a magyar népnek szólt’: Magyar Nemzet, 10 January 1998, p. 4. The regime also contributed to the revival of the Holy Crown tradition in the 1980s when the festivities, including fĳireworks on 20 August, St Stephen’s Day, and their media coverage became offfĳicial policy. On the Holy Dexter see note 52 above. 440 The earliest association was probably the Magyar Szent Korona Társaság (Feb. 1989); the Szent Korona Nemzetszövetség and others were established in the 1990s. 441 István Kocsis, a Transylvanian writer who has moved to Hungary, in his A Szent Korona tana, Budapest, 1995, second edn., 1996 (hereafter, Kocsis, Szent Korona) reviewed the books that have taken this position, pp. 270–72. See also the politician Zsolt Zétényi’s A Szentkorona-eszme mai értelme, Budapest, 1997, and Magyarország Szent Koronája, Budapest [2000]. 442 Had the doctrine of the Holy Crown been adhered to in 1918, the ‘Trianon dictate’ might have been avoided—surmised István Kocsis, Demokrata, 1996, 19, p. 39. ‘A Szent korona Nemzetszövetség magyar külpolitikai koncepciója’, Hunnia, 1997, Sept. pp. 18–20, a vaguely revisionist programme. 443 Because of the requirement of ‘the two-thirds support’ for constitutional change, even minor amendments can only be put through with great difffĳiculties in Hungary. 444 For a summary of the changes of the symbolic elements in Hungarian politics since 1989, see Daniel Fehér, Panem et Circenses (MA Dissertation, SSEES, University College London, 2000), esp. pp. 25–39. 104 chapter one parliament decided in July 1990 to cap the Hungarian national escutcheon with St Stephen’s Crown.445 Changes in linguistic usage reflect gradually changing attitudes. The magyar korona before 1989 fĳirst becameszent korona and subsequently Szent Korona in general usage.446 There never was a trafffĳic jam by historians on the road to Damascus (to borrow a phrase from Péter Esterházy) on attitudes toward the Holy Crown. But transition there has been. József Kardos, a specialist who began to study the ideologies associated with the crown in the 1960s did not show much empathy towards the subject in his writing in 1967: bourgeois ideologists used ‘the szentkorona-eszme’ to legitimize their nationalist policies—was the message he repeated ad nauseam.447 In the interwar years, the author went on, the holy crown idea had provided the theoretical basis for irredentism and ‘concealed the class dictatorship’.448 Two years later in a Századok article, he was nearly as hard on Eckhart as Sarlós had been.449 Yet the same author published in 1985 a competent, well- written monograph on the history of the doctrine between 1919 and 1944, showing empathy towards the subject, in which irredentism gets only one and half pages.450 By the time he published his second work in 1992 (after the collapse of the Kádár régime) he had warmed to the subject to such an extent that this reader could not fĳind a single reference to irredentism. The author now discovered the socially progressive elements of the ‘crown idea’ in Kossuth’s writing, described Béla Szabó’s work on the

445 Parliament began the debate on the Amendments of the Constitution Bill on 5 June 1990. The issue whether the so called ‘Kossuth escutcheon’ of the 1848 revolution or the escutcheon with the crown, used until 1945, should replace the one used during the Kádár regime came up on 18 June. After a tense and not particularly edifying debate the House decided that the issue would be dealt with in a separate bill, which was passed by a large majority (for 258, against 28 abstained 35) on 3 July 1990–94. Országgyűlési Értesítő, 2, pp. 865–68, 873–74, 1006–13, 1213–28, 1266–70. 446 See note 438 above. 447 ‘In general the main ambition of the advocates of nationalism has been and still is to create a “historical basis” for their views. The “historical arguments” are to secure a legitimacy of nationalist demands. The historical setting was not missing from the accessories of Hungarian nationalism either. The “idea” of the holy crown provided one of these set- tings: this train of thought contained constantly changing, mystical and difffuse ideas with the help of which bourgeois ideologists and politicians by reference to historical roots have justifĳied and proved their current political aims and interests. They tried to secure the efffectiveness and agitative force of this ideology chiefly by unrealistic exaggeration and actualization of the real and supposed role associated with the crown in the course of our history’. József Kardos, ‘Sorsfordulók egy mitosz életében’. Világosság, 1967, July/ August, pp. 444–49 (444). 448 Ibid., pp. 447–448. 449 Idem, ‘Az Eckhart-vita és a szentkorona-tan’, Századok, 103, 1969, pp. 1104–117. 450 Idem, A szentkorona története 1919–1944, Budapest, 1985, pp. 87–88. the holy crown of hungary, visible and invisible 105 crown as ‘the fĳirst signifĳicant formulation of polgári (bourgeois) political ideas’ and was fulsome in his praise of Eckhart’s scholarship (although not quite understanding it).451 Following well-established local tradition the author mentions nowhere his turn-about. The revival of the cult of St Stephen and the tradition of the Holy Crown do not necessarily extend to the doctrine itself as valid constitutional law today. But even in that extreme form the doctrine has champions. István Kocsis makes clear in the preface of his book on the Holy Crown doctrine ‘its past, present and future’452 that he does not regard the crown as a museum piece because: The Holy Crown is still the subject of state power and the doctrine of the Holy Crown is not only a relic of a glorious Hungarian past but valid and enforceable public law […] the doctrine of the Holy Crown has never been repudiated by the constitutionally formed Hungarian legislature […] and we know that not even the lawfully elected Hungarian national assembly, the parliament, could put the Holy Crown doctrine out of force.453 The author is a successful writer from Transylvania and his outlandish views on the constitution have not of course influenced the legal profession. Yet the crown question was not settled by the inclusion of St Stephen’s Crown in the national escutcheon in 1990. After 1994, when the Socialists and the Free Democrats were in offfĳice, politicians of the Right, particularly in the Smallholder party, demanded that the crown should be transferred from the National Museum to parliament and that the doctrine of the Holy Crown should be included in the revised Constitution. Their proposal in the House in 1996, however, did not get very far. The coincidence of two factors moved the cult of the crown further. One was the replacement of the Left-wing government by Viktor Orbán’s Right of centre government in 1998. The other factor was the celebration of the Millennium, which coincided with the coronation of St Stephen I in the year 1000. The government appointed a kormánybiztos (commissar), István Nemeskürty, historian and ardent promoter of the Holy Crown tradition, to organize the events. St Stephen’s Crown, as we may recall, was ceremonially transferred from the National Museum to parliament

451 Idem, A szentkorona és a szentkorona-eszme története, Budapest, 1992, pp. 41–46, 79–83. This work follows the revived usage ‘Szent Korona’ (capitalized) and was prefaced by Otto Habsburg. 452 The subtitle of Kocsis’s Szent Korona. 453 Ibid., pp. 5, 11 and 12. Kocsis’s attiude to the doctrine’s status today is comparable to Kmety’s in 1918–19 see note 351 above. 106 chapter one on 1 January 2000.454 The ministerial draft of the Millennium Bill had a long preamble which included the doctrine in a passage. This passage was eventually deleted because of strong opposition to it in parliament and by the Academy.455 Thus the doctrine did not get into the Lawbook although it crept into the speech of the Republic’s President on 1 January.456 The return of the Left to power in the Spring of 2002 has, for the time being, stopped in its tracks any further innovations in the cult of the crown.

Conclusions

The central fact of the Hungarian crown tradition’s history is the existence of St Stephen’s Crown. The question, which looks for some answer, is why it came to be that the visible crown, an artefact, has played such a seminal role in Hungarian history. This role cannot be explained by foreign influences alone. While the crown tradition originated in European Christian religion, we cannot fĳind strong analogies, at least in the history of European political culture, for the cult of an artefact that has practically run through the whole history of a country. A visitor would fĳind in several European countries matchless collections of regalia that have played prominent roles in the past. Today they are, as treasured relics, mostly on display in museums. In contrast, the Hungarian crown, guarded in parliament to which it has been recently transferred, is still a living part of the political discourse. Can the endurance of this tradition be explained? Perhaps the explanation is to be found in social structure: the permanent ascendancy of the large nobility over all the other social groups for much of the country’s history. Italian humanists in King Matthias’s court in the late fĳifteenth century (Enea Sílvio, Callimachus, Bonfĳini, Tubero, Ransano) viewed the nobility as rough uneducated soldiers proud of their Scythian background.457 The cult of a sacred object, we may surmise, served better this society in legitimizing authority than intellectually more demanding fĳictions like ‘the king never dies’. But of course this explanation does not hold for modern times when the country has been led by a highly educated élite. Yet the invisible crown became an even more important part of political discourse than it had been before.

454 See pp. 16–17 above. 455 See note 8 above. The fĳinal vote went for 226, against 65, abstained 61: on 21 December 1999, Az országgyűlés hiteles jegyzőkönyve, 112, pp. 16273–77. 456 See pp. 17–18 above and note 12. 457 Deér, Pogány, pp. 238–55, a realistic description of the social-cultural conditions. the holy crown of hungary, visible and invisible 107

From 1790 onwards the crown tradition has undergone major changes, whether invented or not, and it is these that should be explained. The tradition played a prominent role in 1790, in the 1890s, in the interwar years and since 1990. These have been periods of rapid social transformation. The nobility’s movement in 1790, in which the cult of the crown played such a prominent role, followed Joseph II’s reckless attempt to drag Hungary out of its medieval conditions. In the late nineteenth and early twentieth centuries the political class, based on the gentry, was under increasing threat of losing its social position. And Hungarian society since the collapse of the Socialist system, which has coincided with the revival of the crown tradition, has been in turmoil. Yet mental con- structs, even ones simpler than the crown tradition, cannot be satisfactorily explained by reference to social change. An explanation should be more specifĳic. If we are looking for specifĳic political explanation, the long Habsburg connection provides the most obvious context. Historically, the relationship between Hungary and Austria grew out of the relationship between the crown and the ország. The distribution and balance of power between the alien dynasty and the large nobility depended on a few insecurely established institutions. The obligation of rex hereditarius to arrange his/ her diaetalis coronation with an artefact which is in the secure possession of the other side, together with the Oath and the Diploma, provided the only institutional safeguard for the preservation of ország rights. This explanation obviously holds water for the period between Mohács and 1918, yet leaves unanswered the question regarding the medieval period, the interwar years and the recent revival of the tradition. Perhaps the explanation lies in the mental sphere rather than in social structure or politics. Our view of the past is shaped by what we read into it from the present; on the other hand, we understand the present in terms of what we have constructed about the past. The use of words within a community is to an extent a self-sustaining phenomenon. Once the vocabulary of the Holy Crown is established the hypnotic power of words takes a permanent hold on minds. While this may be true as a part of an explanation it is (again) too abstract and not specifĳic enough. There is also a functional explanation which is currently advanced by many people. The Holy Crown tradition can be explained, so runs the argument, by the need that all communities have for symbols of identity. This observation is true but as an explanation it begs the question. Further, the Holy Crown tradition could be described as part of a ‘cultural system’ from which the new Hungarian ‘imagined community’ sprung in the early 108 chapter one nineteenth century.458 As we have seen, the tradition played a central role in the ‘origin and spread of nationalism’. Nationalism, however, still does not provide an answer to our question: why the crown? I should refrain from the customary evasion of historians in comparable situations by suggesting that the list of features together furnish the explanation. Instead of being overly preoccupied with establishing causes, the historian may not want to do more than place the subject in its social and cultural set- tings. At any rate it is very likely to be a mistake to look for straightforward causes of highly complex historical phenomena that may belong even more to social anthropology than constitutional or intellectual history. What is undeniable is that a relic attributed to St Stephen, the visible crown, created a most efffective metaphor for transmitting political messages for centuries. Our survey of the political tradition associated with the invisible crown from the Middle Ages to the present suggests that there are no strong grounds suggesting that the tradition is based on a defĳinable idea. Rather, the tradition consists of a compound, an unstable combination of several (partly contradictory) ideas. This itself is not at all surprising as the same can be said of other political terms and particularly of those that create traditions. Political ideas are seldom ‘general’; they always express changing particular and moral perspectives. Those who do not recognize this fail to understand that the past is a diffferent country. What does lend coherence to the tradition of the Holy Crown is not some conceptual hard kernel but the permanence, for some eight hundred years, of the visible Crown of St Stephen. This jewel, which itself has had a remarkable narrative,459 has never been unambiguously separated from the invisible crown. Indeed, the ideas were always parasitical on the magic of St Stephen’s Crown, which has behaved like a magnet, attracting political rhetoric throughout Hungarian history. Hungarians rephrased their changing collective and frequently their sectional values, aspirations and programmes in reference to their visible crown. The most radical transformation of the ideas associated with the crown occurred in the nineteenth century with the creation of the Holy Crown

458 See Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism, London, 1991, esp. p. 12. 459 See the apt title of the Hungarian edition of Benda-Fügedi, Stephanskrone, note 2 above. Sándor Radnóti contrasts developments in Western Europe, where the invisible crown provided institutional continuity, with Eastern Europe, where the visible crown played a similar role, ‘Üvegalmárium’, p. 49. This idea is worth pursuing although it still does not explain the unparalleled duration of the Hungarian invisible crown’s tradition. the holy crown of hungary, visible and invisible 109 doctrine. As we have seen, Hungary for centuries represented an acute case of institutional and conceptual bipolarity between the royal power and the ország. It was a remarkable turn-about, with which Hungary’s jurists should be credited, that corona Hungariae was moved over from the monarch’s to the ország’s side. The hereditary possession of the alien dynasty, the ‘crown’, was transformed to represent the sovereignty of the nation. Although the doctrine as a concept of legislative sovereignty was defective,460 nevertheless, the crown as the source of national sovereignty became a powerful icon in the political rhetoric of modern Hungarian nationalism. The recent revival of the Holy Crown tradition largely fĳits in with the pattern established in the nineteenth century. Firstly, the doctrine today, as in the nineteenth century, is not a part of constitutional law but appears in political rhetoric and in textbooks on the history of constitutional law.461 Unlike the pre-1945 periods, however, the jurists keep themselves at a safe distance from the doctrine. As in the past, offfĳicial attitudes to the crown tradition greatly depend on the political colour of the government that happens to be in offfĳice. ‘Forty-Eighters’ (Independentists) cherished the tradition much more than ‘Sixty-Seveners’ (Liberals) before 1918, just as Centre-Right governments support (restore) traditions rather than the Centre-Left governments today. Again, the champions of the tradition, and the doctrine in particular, insist today, as they used to in the nineteenth century and the interwar years, that the Holy Crown, as a fundamental source of national identity, was a serviceable idea. For Hungarian society was and is still not properly integrated. The Holy Crown tradition is conducive to social and national cohesion. It undoubtedly has been for many people; at the same time, however, it has been culturally divisive too. As we have seen, the doctrine creates social conflict as well as healing it. Yet even the opponents of the Holy Crown tradition unwittingly testify to its strength. A distinguishing sign, if not the hallmark, of a successful mythos is its ability to neutralize critical analysis about itself. The Holy Crown tradition can easily pass this test. The tradition has been so powerful that it has successfully absorbed (indeed obliterated) the fĳindings of Eckhart. For the opponents as much as the champions of tradition ignore what Eckhart clearly demonstrated over sixty years ago: that the crown as

460 See p. 65 above. 461 The various editions of Magyar alkotmánytörténet, ed. Barna Mezey, published in the 1990s, are a goulash of Marxist canon, Laband and the doctrine of the Holy Crown. 110 chapter one a corporate political concept, comprising the king and the nobility (or nation) evolved in the nineteenth century (rather than in the Tripartitum or even earlier); that the nobility shared power with the crown rather than in the crown;462 and that the doctrine itself was produced by jurists in the late nineteenth century.463 Finally, we ought to ask how far the jurists, who constructed the doctrine of the Holy Crown, were aware of what they were doing. After a lecture I gave in Holland over forty years ago on the making of the doctrine, the classical scholar, Károly Kerényi advised me to make up my mind whether the Holy Crown tradition was a mythos or a pseudos. I am still unable to provide a satisfactory answer. It is, of course, quite clear that the cult surrounding St Stephen’s Crown has generated a proper mythos. Scholars have not even been able to establish the provenance of the artefact, the tradition does not have an ‘author’, the crown’s veneration has been a genuine ‘uninvented’, lasting tradition of a national community. The ideas associated with the crown, until the late nineteenth century, appear in diverse uses in political discourse rather than in deliberately designed practices. Werbőczy did not ‘invent’ a theory;’ he used, on a single occasion, a convenient simile for a specifĳic purpose. Nor is it plausible to suggest that Récsi, Csemegi or even Hajnik were engaged in inventing theories. Our survey showed that the ideas and attributions of the crown evolved very gradually even in the course of the nineteenth century until its last decade. They exhibited ‘the strength and adaptability of genuine traditions’ rather than ‘invented ones’.464 The creation of the Holy Crown doctrine in the 1890s appears, however, to have some of the makings of a pseudos. The question is whether the jurists’ doings fĳit what Eric Hobsbawm calls the invention of tradition: ‘where a “tradition” is deliberately invented and constructed by a single

462 See pp. 99–100 and note 425 above. 463 Iván Bertényi, a champion of the crown’s political tradition and Sándor Radnóti, an opponent, equally hold Eckhart in high esteem. Radnóti would exhibit St Stephen’s Crown in the National Museum, the right place for historical relics; yet he fĳinds the mystical state theory of the Holy Crown doctrine in the Middle Ages: ‘Üvegalmárium’, p. 49. Bertényi invokes Eckhart’s authority but argues that Werbőczy’s idea of the Holy Crown was an appeal to ‘noble democracy’, an idea which leads to popular sovereignty: Bertényi, Szent Korona, p. 150. Gyula Rugási, an opponent of the crown tradition, takes for granted that the ‘doctrine of the Holy Crown’ emerged sometime in the Middle Ages: ‘Szellemképek’, in Holmi, 12, 2000, pp. 1331–45 (p. 1338). See also, Eckhart, Szentkorona, esp. pp. 204, 210, and Szekfű’s misinterpretations of Eckhart’s views on p. 100 above. 464 On this, see Eric Hobsbawm and Terence Ranger (eds), The Invention of Tradition, Cambridge, 1984, p. 8. the holy crown of hungary, visible and invisible 111 initiator’?465 Do we not have here the arch constructor, Győző Concha, whose retrospective invention of the doctrine read into the Middle Ages was then developed further by his colleagues at the Law Faculty in Budapest? Yet the case is not as straightforward as it looks. ‘Pseudos’ in the OED associates ‘false’, ‘counterfeit’, ‘pretended, ‘spurious’ (in the sense of not genuine). False and spurious the doctrine certainly was in that it laid claims on a past that had never existed, but that itself may not be suf- fĳicient to qualify for being a pseudos. If veracity is the measure of a genuine tradition then (to give just one example) the cult of St Stephen’s Crown would be disqualifĳied by the belief in the Middle Ages that it was ab angelo privaretur. We are left with the two other adjectives of the OED: ‘counterfeit’ and ‘pretended’. Our problem here is that we can never be certain what goes on in other people’s minds (sometimes not even in our own). We can only speculate about the extent to which the jurists themselves were aware of being the doctrine’s inventors. Yet it does appear that they honestly cherished their brainchild even to the point of absurdity. Concha and Timon were not forgers, they might have been fantasists but in their work they showed integrity: they followed their own light. Kmety, on the other hand, was an acute case. He adjusted his views to changing political circumstances and develops his constitutional position between two editions of his textbook. Similar doubts apply to historians today, who, without a flicker of the eye, shift their position in order to adjust to political changes. It is easier to detect when rituals are deliberately invented than ideas. The taking of the visible crown to parliament (which was unprecedented) on 8 June 1896 for the millennial celebration of Hungary’s conquest, the transference of St Stephen’s Crown to a permanent site in parliament on 1 January 2000,466 and the crown’s travel by boat to Esztergom on 16 August 2001 as a part of the celebration of St Stephen’s Day have been telling examples. It may be argued that Hungary has merely followed other European countries where the heyday of invented public traditions were the decades before the First World War467—except that, as in some other

465 Ibid., p. 4. 466 In today’s Hungary the chief inventor of tradition has been the commissar appointed by the Orbán government to organize the millennial celebrations (see pp. 105–06 above). The left wing press in Budapest had a fĳield day when it turned out that on 1 January 2000 St Stephen’s Crown was ceremoniously (but out of ignorance) taken up to parliament farral előre (backside fĳirst)—a rather typical mishap when traditions are created. 467 Hobsbawm and Ranger, The Invention, pp. 263, 281–89. On the invented traditions of the British monarchy in the late nineteenth century see David Cannadine, Ornamentalism: How the British Saw Their Empire, London, 2001, ch. 8, esp. p. 106. 112 chapter one respects, Hungary is lagging behind by several decades. It may be argued that as the importance of public rituals has declined in Western Europe since the Second World War, we should expect the same to happen in Hungary. It is, however, too much to assume that a cult that has mysteriously surrounded an inanimate artefact through almost the entire history of Hungary should in a few decades fade away. CHAPTER TWO

IUS RESISTENDI IN HUNGARY

Resistance as a Right

It is a safe assumption to make that some political precepts and ideas have existed throughout recorded history. These ideas probably include the duty of government to maintain order; protect the lives and property of the subjects; sustain justice; secure rights based either on some natural quality or on service; the precept of freedom from unjustifĳied interference; the obligation to keep agreements; and the duty of obedience to established authority. All of these may be considered near perennial features of social life. And so is resistance to authority and even the removal of those in power in some circumstances. For the duty of obedience to established power can never be unlimited. Even in fully autocratic states, resistance to authority, when successful, was habitually justifĳied. By improving on Mommsen’s defĳinition, Charles Diehl described Eastern Rome as an ‘autocracy tempered by revolution and assassination.’1 Accordingly, if and when usurpation of power was accomplished, the authority of the successful new ruler was recognized as legitimate because the deposed incumbent was apparently inadequate or unworthy. On the other hand, when the challenger failed, he was labelled as merely a rebel. In sum, resistance to authority, and even tyrannicide, has been justifĳied in society, post factum but not ex ante. It is apparent, therefore, that the subject did not have the right of resistance to established authority. Resistance to authority as a right developed, after some antecedents, in medieval Europe where temporal authority was based on custom and was held therefore to be limited. In his classic monograph on divine right and the right of resistance in the early middle ages Fritz Kern argued that the subject ‘owed his ruler not so much obedience but fealty’ and fealty was conditional: it had to be reciprocal in character.2 Custom based on fealty produced the benefĳiciary system of landownership with its hierarchy of

1 Charles Diehl, ‘The Government and Administration of the Byzantine Empire’, in The Cambridge Medieval History, vol 4, 1936, p. 729. 2 Fritz Kern, Kingship and Law in the Middle Ages, Oxford, 1948, pp. 87–89. 114 chapter two donor-donee relationships, based on fĳidelity, in which each side possessed rights as well as obligations towards the other. Whenever one side failed to meet its customary obligations, the other side invoked resistance on the offfending side as a customary right. The donor-donee relationships did not engender the complex social hierarchy east of the Elbe, typical in Western Europe. In kingdoms like Bohemia, Hungary and Poland, there were only two levels and the donation of land was largely confĳined to the ruler, as donor, and the noble as donee.3 Yet even here, the customary right of resistance was as vigorously exercised as in the western parts of the Continent. In Hungary, the medieval structure remained a fĳirm foundation on which the right of resistance to authority was based for much longer than in the western part of the continent. Indeed, a convenient way to tease out the specifĳic features of the Hungarian resistance to established political authority is to compare it to the growth of comparable features elsewhere. In western Christendom, the age of Reformation split the church into rival confessions. This was the chief reason for the rise of what was to prove to be the durable theory of social contract, which evolved in the sixteenth century, although at fĳirst only to protect the faith of particular religious minorities. Radical Calvinists and Jesuits no longer justifĳied resistance as a customary right based on mutual fĳidelity and obligations, but on contract and agreement, as a deliberate act by the people. Accordingly, because the people had agreed to establish government for certain ends, they thereby had the right to resist and even remove the holders of power if they neglected or contravened those ends. In its radical form, social contract theory justifĳied rebellion by the people or rather some notables acting for them. The right of resistance in England, Holland and France was later refĳined, largely under the influence of Locke, by the assumption that the social contract had created a civil society, to which everybody consented, prior to the setting up of government which was to use power for certain ends as a trustee on behalf of the community. And when the government by persistent misrule broke its trust, it was argued, it dissolved itself and the right to form a government reverted to the people. The people, i.e. civil society, then simply erected a new government without any major social upheaval. Rebellion by the people was, therefore, no longer necessary, as it had been in the religious wars of the

3 The terms ‘donor’ and ‘donee’ are not quite appropriate because the donated land was not a fĳief but an allodium, a reward for past services without specifĳic future obligations. ius resistendi in hungary 115 sixteenth century, in order to change the government. The contract theory, although ill-defĳined and uncertain in its application, gave rise in the eighteenth century to constitutional systems based on the idea of government by consent. Developments in Hungary were almost invariably afffected by the changes that took place in Western Europe. The Church was the important contact between the West and Hungary. The country’s educated groups were for centuries provided by the clergy, many of whom visited the universities of Bologna, Paris, later Germany, Vienna and Cracow. Yet Hungary retained the medieval forms of resistance in a robust form for much of its history. The precept of resistance, later called ius resistendi, was formally enacted by King Andrew II in the Golden Bull of 1222.4 The background to this decretum, a royal charter of liberties, was a political upheaval which the king faced after his return from a crusade to the Holy Land. He was compelled to replace the high offfĳicers of the kingdom with a new set of personnel. As Andrew complained to Pope Honorius III ‘an immense crowd’ had assembled, demanding that the king should desist from what they viewed as harmful practices which amounted to abuses of royal authority, and that he should confĳirm the liberties that St Stephen, the holy king, had granted to the nobility. The provisions which included many previously unrecorded privileges, listed under 31 headings, began with the promise that the king would every year on the day of Saint Stephen hear the cases of the servientes regis,5 propertied soldiers subject to the king alone, who might freely assemble in Székesfehérvár. The privileges included the exemption from taxes, limits on the military duties of the nobles and their right not to be arrested without fĳirst being summoned and sentenced by due judicial process.6 These privileges applied to the comites, later called barons, the high rank of the nobility as well as the rising lower rank, the servientes regis, a term that appeared for the fĳirst time in 1217.

4 Gyula Kristó, ‘Az 1222. évi Aranybulla’, in György Székely (ed.), Magyarország törté- nete, Budapest, 1984, vol 2, pp. 1320–32; László Kontler, Millennium in Central Europe, Budapest, 1999, p. 77; Pál Engel, The Realm of St Stephen, London, 2001, pp. 93–95; Bryan Cartledge, The Will to Survive, London, 2006, pp. 21–22. 5 On the emergence of this group, see Martyn Rady, Nobility, Land and Service in Medieval Hungary, Basingstoke & New York, 2000, pp. 35–38, The 1287 enactment of the Golden Bull referred to ‘nobiles regni Ungarie universi, qui servientes regales dicuntur’, János M. Bak et al., Decreta Regni Mediaevalis Hungariae (hereafter: DRMH), 5 vols, 1989– 2005, vol 1, p. 40. This decretum was analysed by Jenő Szűcs, Az utolsó Árpádok, Budapest, 1993, pp. 125–31. 6 ‘nisi prius citati fuerint et ordine iudiciario convicti’, DRMH, vol 1, p. 32. 116 chapter two

The last paragraph of the decretum, clause 31, stipulated the famous sanction, the penalty attached to the infringement of the enacting clauses: ‘Should we, or any of our successors, at any time seek to violate this disposition of ours, both the bishops and other lords and nobles of the regnum collectively and singly, present and future can, by this authority, be free in perpetuity to resist and oppose us and our other successors without the imputation of high treason.’7 In contrast to the liberties which this charter granted to the servientes regis (later called the untitled nobility, in contrast to the titled nobles who formed the higher rank), it is generally held today by medievalists that the charter confĳined the sanction of resistance to the bishops and the higher rank (from which the baronial class developed).8 It was a generally popular habit, and historians were no exception, to boast that the Hungarian constitution was as old, if not older, than the English. Scholars habitually compared the Magna Carta and the Golden Bull.9 As both charters were the products of societies with institutions based on customary systems of privileges and mutual fĳidelity, it is not surprising that there should be some similarities. The right of resistance (although in very diffferent forms) was enacted in both—just as it was asserted elsewhere in Europe. The vast diffferences between English and Hungarian social conditions, however, make comparisons quite unrealistic.10 Nor is there any evidence that the Magna Carta, which had been issued just seven years earlier in 1215, influenced the revolt that forced Andrew to enact the Golden Bull. The subsequent history of the two charters, however, reveals some notable similarities. It used to be claimed that

7 Clause 31 of Andrew II’s Golden Bull of 1222: ‘Statuimus etiam quod, si nos vel aliquis successorum nostrorum aliquo umquam tempore huic disposicioni contraire voluerint, liberam habeant harum auctoritate sine nota infĳidelitatis tam episcopi quam alii ioba- giones ac nobiles regni nostri universi et singuli presentes ac posteri resistendi et contradicendi nobis et nostris successoribus in perpetuum facultatem.’ DRMH, vol 1, p.35. József Gerics in exploring the provenence of the ‘universi et singuli’ term demonstrated the influence of canon law on the sanction, ‘Az Aranybulla ellenállási záradékának értelmezé- séhez’, in Iván Bertényi (ed.), Ünnepi tanulmányok Sinkovics István 70. születésnapjára, Budapest, 1980, pp. 99–108. 8 Alajos Degré, ‘Az ellenállási jog története Magyarországon’, Jogtudományi Közlöny, June 1980, p. 367; József Gerics, A korai rendiség Európában és Magyarországon, Budapest 1987, p. 259. 9 The Protestant Pál Ráday, chancellor to Rákóczi, might have been, as Ágnes R. Várkonyi has suggested, the fĳirst who in 1706 compared the Golden Bull to the Magna Carta, Magyarország története 1686–1790, vol 1, Budapest, 1989, p. 327; László Péter, ‘The Holy Crown of Hungary, Visible and Invisible’, Slavonic and East European Review, 81, no 3, pp. 488 n. 362. 10 Ferenc Eckhart, Magyar alkotmány- és jogtörténet, Budapest, 1941, p. 33. ius resistendi in hungary 117 each had been the source of continuous constitutional developments, while in fact both went into eclipse shortly after their enactments, and then were rediscovered and later cherished as the fountain-heads of a continuous progress towards representative institutions. Constitutional development has in fact been discontinuous in most countries. The Golden Bull changed neither the social nor the political conditions of the country. The new holders of high offfĳice had already by December 1222 lost their positions to the old set of barons. Government practices went on unchanged to the dismay of the church. In 1231 under pressure from Pope Gregory IX, Andrew confĳirmed the liberties of the privileged classes.11 Yet in this decretum, the sanction found in the Golden Bull was replaced by a new sanction: ‘the king freely consented’ to the authorization that the archbishop of Esztergom might admonish and even excom- municate him or his successors should the liberties granted in the charter be infringed.12 Béla IV, Andrew’s son and successor, hoped to consign the 1222 charter to oblivion.13 He restored royal authority by claiming the ius regium (i.e. ius coronae) to repossess royal land which had been lost under his predecessors. Towards the end of his rule in 1267, Béla, under pressure from his son, the future Stephen V, issued a short, ten-paragraph charter confĳirming the liberties of the whole nobility.14 But once again, instead of the sanction of the Golden Bull, excommunication by the church fĳigured in the text instead of clause 31. In the last decades of the thirteenth century, royal power was debilitated by the emergence of strong baronial groups which generated political instability and general insecurity. Partly in order to counterbalance the oligarchs, the nobility organized itself horizontally into local autonomous counties, assembled in their own generales congregationes (in 1289 the term parlamentum publicum can be found) and a few token nobles were also invited to the royal council.15 No evidence has been found so far, however, that in this period the sanction of resistance laid down in the 1222 charter was referred to or even remembered. After 1308, the Angevin kings, by replacing the old baronial groups with their own supporters, had considerable success in restoring royal authority. The county assemblies lost much of their earlier competence.16 Yet it was under this new dynasty

11 DRMH, vol 1, pp. 36–39. 12 Eckhart, M. alk. tört., pp. 34–35. 13 Rady, Nobility, p. 40. 14 Szűcs, Az utolsó Árpádok, pp. 131–36. 15 Ibid, pp. 293–96. 16 Engel, The Realm, pp. 179–81. 118 chapter two that the Golden Bull resurfaced. In 1318 when the bishops were engaged in conflict with Charles Robert, they produced a copy of the 1222 Bull, with its clause 31. Alajos Degré could be right in suggesting that the bishops knew that they could not rely on the 1231 or the 1267 charters since the Holy See as a supporter of the Angevin kings would not apply the sanction of excommunication provided in them.17 It is also possible that the bishops hit upon a copy of Andrew’s charter accidentally. When Charles Robert’s son, Louis I, faced discontent among the nobility he felt strong and secure enough to re-enact in 1351, with some important changes to the rules governing the inheritance of land, the 1318 version of the Golden Bull.18 Although from this time onward, the kings at their coronation con- fĳirmed the Golden Bull, including clause 31, it is far from clear whether the sanction of Andrew II’s Bull acquired the prominent position in the constitution which later became attributed to it. After the death of Louis, royal power once more collapsed. In a kingdom where institutions were poorly developed, the ruler’s capacity to per- suade rested to a large extent on the land which he had available for distribution. This land was given out, however, as allodial property and might only revert to the ruler in the event of the owner’s death without heir or treason. The royal fĳisc thus became attenuated and, along with it, the bonds of fĳidelitas. The transition in the 1380s from the Angevin dynasty to the Luxemburgs further eroded the loyalty felt by noblemen to the ruling house. Sigismund, elected king in 1387, had to start all over again. Weakened by the disastrous Battle of Nicopolis against the Ottomans, at the diet of Temesvár in 1397, Sigismund confĳirmed the rights of the nobility by re-enacting most clauses of the Golden Bull. Yet clause 31 was not among them.19 Nor did the ‘league’ of offfĳice-holder barons who impris- oned Sigismund for six months in 1401 or the barons who rebelled against him in 1403, offfering the crown to Ladislas of Naples, so far as we know, invoke the sanction of Andrew II’s Bull. Sigismund eventually succeeded in overcoming the opposition (as Béla IV and Charles Robert had done before him and Matthias Corvinus was to do subsequently) by replacing, through patient efffort, a large part of the baronial class withhomines novi, his own supporters. After Sigismund’s death in 1437, when central authority collapsed for two decades, the parties to the fĳierce political conflicts

17 Degré, ‘Az ellenállási jog’, p. 368. 18 DRMH, vol 2, p. 9. 19 Franciscus Döry et al. Decreta regni Hungariae 1301–1457, Budapest 1976, p. 158 and DRMH, vol 2, pp. 23 and 176. ius resistendi in hungary 119 did not refer expressly to clause 31 of the Golden Bull. It emerges from János Bak’s studies that it was only after the death of King Matthias in 1490, in the Jagiellonian period (1490–1526), that clause 31 became permanently a chief point of reference. Weary of Matthias’s innovations, the barons at the diet were determined, as a chronicle noted, to elect a king ‘whose plaits they could hold in their hands’.20 They elevated the pliable Wladislas II to offfĳice.

Werbőczy and the Ius Resistendi

István Werbőczy, leading judge at the court from 1502 and the political leader of the party of the nobility expressed in his work a new self- confĳidence of the untitled nobility which flexed its muscles for a fĳight with the barons and the king. Werbőczy listed in a single passage (the so- called primae nonus) in his customary, the Tripartitum,21 the nobility’s four cardinal privileges: (1) the right to be free of arrest without the due legal process; (2) to be subject only to the lawfully crowned king; (3) exemption from servile obligations and from payment of taxes and to provide military service only in defence of the kingdom. The fourth (not to mention the others) and last one is that if any of our princes and kings should venture to act contrary to the liberties of the nobles, then, as stated and expressed in the general decree of the most illus- trious prince, our former Lord King Andrew the Second, called ‘of Jerusalem’ (which decree every Hungarian king is wont to swear on oath to observe before the Holy Crown is placed on his head), they have the liberty in perpetuity to resist and oppose him without the imputation of high treason.22 Werbőczy stretched the scope of clause 31 of Andrew’s Bull, hitherto a sanction, and elevated it to the status of a cardinal privilege or ius and he referred to the contents of the Golden Bull as sacra decreta.23 Furthermore,

20 Janos M. Bak, Königtum und Stände in Ungarn im 14.–16. Jahrhundert, Wiesbaden, 1973, p. 62. 21 Tripartitum opus iuris consuetudinarii inclyti regni Hungariae, DRMH, vol 5, 2005, 473 pp. The fĳirst edition of 1517 is published here together with its English translation. 22 ‘Quarta (ut reliquas pręteream) & ultima est quod si quispiam regum & principum nostrorum libertatibus nobilium in gernerali decreto excellentissimi principis quondam domini secundi Andreę regis cognomento Hierosolymitani (ad quod observandum quili- bet regum Hungariæ priusquam suum sacro caput dyademate coronaretur sacramentum pręstare solet) declaratis & expressis contravenire attemptaret, extune sine nota alicuius infĳidelitatis liberam illi resistendi & contradicendi habent in perpetuum facultatem’, ibid, p. 56. Only some kings included in their coronation oaths observance of the Golden Bull. 23 Tripartitum, II: 6, §6. 120 chapter two he did not predicate the right of resistance on the nobles universi et singuli as it had been in the Golden Bull, but on the communitas in which, as he emphasized repeatedly, all nobles, including the most powerful ones and the poorest, ‘enjoy one and the same liberty’ (una eademque libertatis gaudent). The communitas of the nobility existed as a separate repository of law side by side with the crown.24 I shall return to this point after a brief summary of the practice of ius resistendi until the end of the Habsburg Monarchy. Following the disaster inflicted on the kingdom by the Ottomans at Mohács in 1526, the nobility elected as king the Archduke Ferdinand, a Habsburg who until János Zápolya’s death in 1540, had to tolerate a rival king. The foreign hereditary possessions of the new dynasty and the occupation of central Hungary by the Ottomans enabled the crown to create a new titled nobility of princes, counts and barons and to subordinate the Hungarian royal administration to the imperial offfĳices in Vienna. The diet still retained, however, substantial powers in respect of protecting the nobility’s jussai (rights). Also, Transylvania, a separate principality under the Sultan’s suzerainty, became after 1547 a new counterweight to the Habsburg court. Although its princes regarded their country as a part of the Holy Crown of Hungary, Transylvania sometimes cooperated and at other times rebelled against the Habsburg king.25 The unsuccessful Fifteen Years’ War of the Habsburgs together with the Hungarian and Transylvanian nobility and Moldavia and Wallachia against the Ottoman empire introduced the ‘Time of Troubles’, open conflicts between the imperial court and the estates of Hungary and of Transylvania.26 István Bocskai, a magnate in eastern Hungary, was the leader of the fĳirst major rising against the Habsburg monarch in 1604. Supported by the nobility, many towns and soldier-herdsmen, the ‘heyducks’, the Calvinist leader fought, among other things, for religious liberties. In justifying the rebellion against the monarch he did not, however, use Calvin’s arguments (which he may have known) or indeed the social contract theory in any form. Bocskai and also the assembled Estates referred regularly to the rights enshrined in the primae nonus of the Tripartitum.27 When the

24 On the appearance of the communitas in Hungary, see Gerics, A rendiség, pp. 250–64. 25 See Kontler, Millennium, pp. 148–49. 26 The social consequences of the ‘Time of Troubles’ were summarized by Kálmán Benda in ‘Hungary in Turmoil, 1580–1620’, European Studies Review, 8, 1978, pp. 281–304. 27 Ferenc Eckhart, ‘Bocskay és hiveinek közjogi felfogása’, in Károlyi Árpád Emlékkönyv, Budapest, 1933, pp. 135–38. ius resistendi in hungary 121 estates at the diet at Korpona in 1605 pleaded they should be spared of punishment for their rebellion, the king’s representative promised that they would not once they had renewed and kept their allegiance to the king. The estates then declared that they had not acted unlawfully: ‘When the king acts against the rights and the laws of the ország they can resist him according to the primae nonus without incurring the charge of infĳi- delity’28 This amounted once more to an extended reading of clause 31. While Werbőczy had predicated the right of resistance on the rights enshrined in the Golden Bull, Bocskai extended the rights to cover the ország jussai in general, i.e. the rights of Hungary and Transylvania as separate political Lands within the Habsburg Monarchy. This extended interpretation of the primae nonus then influenced the princes of Transylvania who justifĳied their armed conflicts with the crown as actions intended to protect the Protestant religion and Hungarian liberty. Imre Thököly, the leader of a major revolt in Upper Hungary against Habsburg rule, announced in 1684, with reference to the provision of resistance, that the law of Andrew II subsumed ‘the spirit of Hungarian liberty, the proper limit of rule, the judge and avenger of the subject that is able to wash out completely the stain of rebellion.’29 Not surprisingly, when a few years later Emperor Leopold I, with the help of an international army, expelled the Ottomans from Hungary his position was strong enough to force major changes through a pliant diet. The diet felt gratitude for the libera- tion of the country and was afraid that the court would, on basis of ius gentium, apply the Verwirkungtheorie to Hungary as a conquered land and replace the country’s institutions with some other system. The court at the diet secured in Article II of 1687 the agnatic hereditary succession of the dynasty to the Hungarian crown. Equally important was Article IV according to which, as the statute ‘explained’, only some wicked rebels had understood by clause 31 of Andrew II’s decree that the status et ordines, i.e. the diet, could ever rise up against the legitimate king. For this reason the diet consented to the court’s request that the clause relating to the right of resistance should be deleted from Andrew’s law which was to be observed in all other aspects.30 In addition, Article I also expressly

28 Ibid., p. 137. 29 Quoted by Gyula Szekfű, Magyar történet, vol 4, Budapest, 1935 (hereafter Magyar tört.) p. 203. 30 As regards article 31, the statute declared that its ‘probum sensum, nonnisi quorun- dam privatorum prava interpretatio, in alienum praevaricatum ne fors, detorquere studui- sset: saniorumque suae majestatis sacratissimae fĳidelium statuum et ordinum nunquam ea mens fuisset; quod juxta illum (per malevolos et seditiosos obversum) contra 122 chapter two excluded clause 31 from Joseph’s coronation oath. Signifĳicantly, the same exclusion was repeated in the coronation oath of Charles III (VI) in 1711, of Maria Theresa in 1741, of Leopold II in 1790, of Francis I in 1792, in the ‘Inaugural Diploma’ of Ferdinand V in 1836, and even in the coronation oaths of Franz Joseph in 1867 and of Charles IV in 1917.31 The fact that a statement formally referring to the abolition of the ius resistendi by statute remained a permanent feature of the investiture in the royal offfĳice until the very end of the Habsburg Monarchy, may already suggest that the issue of resistance retained political signifĳicance after 1687. In fact, only the loyalist section of the nobility acquiesced in its abolition and its omission never attained general acceptance by the political class. The ius resistendi had to be expressly declared abolished in the royal oath because only the statute, ordained by the king in agreement with the diet, had abolished it—custom had not.32 In the Hungarian system custom could always rescind statute (desuetudo) and in the oath the king vowed to maintain intact the custom of the Land. The greatest protracted armed rebellion against Habsburg authority based on the customary right of resistance, leading in 1707 to the abrenuntiatio of the House of Habsburg, lasted from 1703 to 1711. Its charismatic leader, Ferencz Rákóczi, in his proclamation Recrudescunt inclitae gentis Hungariae vulnera listed under 21 long headings the grievances of the Hungarian nation. The fĳirst one objected to the taking away of the free election of the king ‘which custom maintained for centuries unimpaired’. The second heading vehemently protested against the shameful abrogation of Andrew’s ‘great law’ which conferred ‘never ceasing power to resist the king when he degrades the laws’.33 The Senate presided over by Rákóczi in January 1706 demanded the restoration of the ius resistendi.34 So the leaders of the revolt took entirely Thököly’s view of clause 31 and held its abrogation to be unlawful.35 For a few years, the uprising united practically the whole country, legitimum regem, et dominum suum. quispiam armis consurgere et sese erigere queat.’ For this reason the article ‘mediante praesenti articulari constitutione exclusae, et semo- tae.’ Corpus Juris Hungarici, 1657–1740, ed. Dezső Márkus, Budapest, 1900 (hereafter CJH), p. 336 31 In Law III of 1917 (the Inaugural Diploma), Charles IV promised to keep the customs and laws of the kingdom ‘kivéve mindazonáltal dicsőült II. András 1222. évi törvényének azon megszüntetett záradékát, amely igy kezdődik: Quodsi vero Nos, ezen szavakig: in perpetuum facultatem.’ CJH, 1917, Budapest, 1918, p. 10. 32 On the role of custom see István Szijártó, A diéta, a magyar rendek és az országgyűlés 1708–1792, Budapest 2005, pp. 40–43. 33 Béla Köpeczi, A Rákóczi–szabadságharc és Európa, Budapest 1970, pp. 35–36. 34 Miklós Asztalos, II. Rákóczi Ferenc és kora, Budapest 1934, p. 200. 35 Szekfű, Magyar tört., vol 4, p. 288. ius resistendi in hungary 123 not just the nobility, under Rákóczi, and it shook the Monarchy to the core. The rebellion ended in a settlement at Szatmár with an amnesty (although the leader and his entourage opted for exile) and confĳirmation of the nobility’s customary rights. In sum, Werbőczy’s elevation of clause 31 to a cardinal ius during the ‘Time of Troubles’ became an efffective weapon in the hands of the nobility against the Crown. Andrew’s decretum was remembered only through the Tripartitum. Also, the medieval view that attributed a kind of reality to ius which preserved its multivocal character was, through Werbőczy, transmitted to modern times, a point to which I shall return at the end of this paper. In the age of Enlightenment, through administrative reforms, the powers of the crown were used more extensively and efffĳiciently. In 1723, succession in the crown was extended to the cognatic line of the dynasty. These changes were counterbalanced by the nobility which secured in 1741 article VIII the provision, with reference to the primae nonus of the Tripartitum, that fundamental rights, fundamentalia jura, could not even be brought before the diet for discussion. This meant that basic customary rights were subject neither to revision nor even interpretation by the diet.36 In the eighteenth century, the social centre of opposition to Vienna was no longer the mostly loyal aristocracy but the bene possessionati, the well-to-do untitled nobility, later called gentry.37 The source of their rising influence was the vital distinguishing institution of the country: the local county, which they controlled by elected offfĳicials and which, in contrast to the other lands and kingdoms of the Monarchy, preserved its autonomy (if not quite independence) in its relations with the royal offfĳices. Furthermore, the deputies of the fĳifty counties constituted the sanior pars of the diet’s lower house. As diets were now called irregularly, the county assemblies, in cooperation with each other, became the habitual foci of resistance to the decrees enacted by the central authorities. They practised vis inertiae against taxes and recruitment not granted by the diet and against various other measures which in their view diminished their rights. They may have merely put the objectionable decrees ad acta, fĳiled in the archives.38 The assembly could, furthermore, formally declare

36 CJH, 1740–1835, p. 24, and see the proper interpretation of this habitually misunderstood clause in István Ereky, Jogtörténelmi és közigazgatási jogi tanulmányok, Eperjes, 1917, vol 1, p. 184 n 2. 37 See on this István Szijártó’s monographs, A diéta, esp. pp. 17–19, 359–68, and Nemesi társadalom és politika, Budapest, 2006, pp. 100–141. 38 See the history of a case in county Somogy in 1765–1771, in István Szijártó, Rendiség és rendi intézmények a 18, századi Magyarországon, Candidate dissertation, Budapest 1997, pp. 1–2. 124 chapter two opposition to its implementation or send a letter to the central authority, the council of lieutenancy, or charge the county’s chief elected offfĳicer, the alispán, with so doing. The response of the central government to obstructive, recalcitrant counties was to dispatch a royal commissar backed by army units to restore authority. After 1780, when Joseph II failed to arrange his coronation and through reforms, introduced by octroi, began to dis- mantle the Hungarian system of customary privileges, opposition by the counties to the new measures became general from 1787. The nobility in their assemblies and in an enormously large pasquiline literature again demanded restoration of the ius resistendi.39 Joseph’s new and unlawful system collapsed in 1789. The county deputies at the diet convoked by Leopold II in 1790, insisted on the re-enactment of clause 31 of Andrew’s Bull. Leopold was able to resist the demand only through a new settlement in which the rights of the nobility were once more confĳirmed. In Article X Hungary was described as regnum liberum et […] independens, which possessed its own constitutio,40 and in article XII the monarch was made to promise that royal decrees would be issued outside the diet only in cases where statute law was unafffected. The county was, from this time onwards, cherished as the ‘bastion of the constitution’. In the next round of conflict between the crown and Hungary after the Napoleonic wars, when the counties resisted the fĳinancial measures imposed on the country by Francis I, the monarch was forced in 1825 to convoke the diet after a period of thirteen years in which it had not met. This event opened up the age of liberal nationalism in which some of the bene possessionati deputies of the counties spearheaded the introduction of social reform and of responsible government. This bid for power prepared the way for the major conflict between the crown and Hungary in 1848. The Hungarian liberal nationalists, followers of Count István Széchenyi, aimed at dismantling the whole system of privileges and certainly did not want to restore the anachronistic ius resistendi. Yet even the Liberals did not entirely shed the ingrained attitudes on resistance. Ferencz Deák’s draft Penal Code of 1843 punished for treachery those (offfĳicials) who were involved in the preparation of unlawful royal orders and also those who obeyed them. On the other hand, resistance to ‘anti- constitutional measures’ did not constitute rebellion. ‘Does not this

39 See Győző Concha, Az 1790/1-diki országgyűlés, Budapest, 1907, vol 2, pp. 9, 21, 32, 38. 40 Largely under the influence of Montesquieu, the nobility designated its customary rights as a constitution. See László Péter, ‘Montesquieu’s Paradox on Freedom and Hungary’s Constitutions 1790–1990’, pp. 156–57 below. ius resistendi in hungary 125 amount to the smuggling the right of resistance in the text of the codex?’ —asked János Varga.41

Contractualism

The conceptual framework supporting the liberal political programme was provided by contractualism. The theory of social contract had been well known in Hungary since the age of the Enlightenment. Mediated by the German natural law school and particularly by the obsessively state- interventionist Christian Wolfff, the social contract theory, in its mildest possible form, became a part of the curriculum in the University of Vienna under Baron Karl Anton Martini, tutor to the leading personalities of the Monarchy. The monarch, according to Martini’s teaching, was the source of the law. It was everybody’s duty to obey the ruler because the power to make law had been transferred to the monarch in an agreement, a contract, by the people. Subjects, therefore, did not have the right of resistance although their representatives had the right to be consulted, particularly on measures that afffected their fundamental natural rights. Martini’s textbooks, published in the 1760s, were followed by the leading university jurists in Hungary, all government offfĳicials—Lakits, Rosenmann, Schwartner, Cziráky, Virozsil and others—who classifĳied Hungary as a monarchia limitata rather than a monarchia mixta in which political power was shared between the monarch and the estates. Other jurists, influenced also by the social contract assumption of the natural law school, emphasized the role of agreements between the crown and the political community. They represented the views of the county nobility. Barits, Aranka, Geörch, to mention only a few, held a dualistic view of political power. They presumed that political authority was based on two legitimate sources: the monarch and the political community; Hungary was a constitutional monarchy (in fact a monarchia mixta).42 There were also radical representatives of the Enlightenment who combined the medieval ius resistendi with the theory of social contract. In an anonymous work, József Hajnóczy inferred from the social contract the right of resistance and argued that Andrew II’s clause expressed the natural right of civil society from which no nation could be deprived by law.43

41 János Varga, Deák Ferenc és az első magyar polgári büntetőrendszer tervezete (Zalai Gyűjtemény, 15), Zalaegerszeg, 1980, p. 91. 42 See Péter, ‘The Holy Crown’, pp. 71–72 above. 43 Kálmán Benda, A magyar jakobinus mozgalom iratai, Budapest 1957, vol 1, p 323. 126 chapter two

Contractual arguments afffected the vocabulary used at the diet. While jurists were concerned with the social contract, the county offfĳicials and the deputies at the diet were preoccupied with the political contract between the crown and the nation. It was an easy transition to understand the feudal nexus of a purely customary system, based on mutual trust between king and nobility, as agreements based on statutory enactments which imposed contractual rights and duties on the parties. Hungary’s rights or jussok (L. ius/iures = H. jussok)—so went the argument—were enshrined in statutes which were, in fact, contracts between the crown and the nation. Due to this shift, the statutes became an independent legal source. They existed side by side with custom and were the principal point of reference cited in support of the list of gravamina presented to the monarch’s government in the diaetalis tractatus, the negotiations leading, from time to time, to settlements with the crown.44 The April Laws in 1848 laid the foundations of a Hungarian civil society and established a separate Hungarian government, but as a settlement it turned out to be a complete failure. The Batthyány government claimed rights which the April Laws did not grant. The conflict led to war between Hungary and the Empire and then the Schwarzenberg government imposed by octroi the March Constitution on the whole Monarchy, emasculating the April Laws. In a direct response to this, the Hungarians drew on the radical implications of the contractualist theory in the Declaration of Hungarian Independence drafted by Lajos Kossuth in April 1849. The Declaration of the National Assembly provided a long account of the ‘per- fĳidious acts’ of the Habsburg dynasty which had ever since 1527 repeatedly broken the bilateral agreements by which they were elevated to the royal offfĳice. This historical account provided justifĳication for the ‘lawful representatives of the nation’ to restore to Hungary its inalienable natural rights. The Assembly declared Hungary to be an independent European state whose territorial integrity was inviolate; ‘deposed, debarred and banished’ the house of Habsburg in the name of the nation; declared peace towards all its neighbours; left the determination of the form of the state to the following parliament and appointed ‘by unanimous acclamation’ Lajos Kossuth as governor-president.45 After the defeat of the Hungarian army in August 1849, the centralist and unconstitutional Bach regime was imposed on the country. That the nobility engaged in ‘passive

44 This change was examined in László Péter ‘The Irrepressible Authority of the Tripartitum’, in DRMH, vol 5, p. xvii. 45 István Barta (ed.), Kossuth Lajos összes munkái, vol 14, Budapest 1953, pp. 894–912, esp. pp. 895, 910–11. ius resistendi in hungary 127 resistance’ against the regime was a cliché that emerged largely after the collapse of the Bach regime in 1859. Nevertheless, its usage in Hungary could have been the source of its emergence in the vocabulary of politics in other languages (another, more likely source is, of course, India). But no research has, so far that I know, been carried out on the provenance of this term. After the collapse of Kossuth’s independent course, Ferencz Deák, the ‘sage of the nation’, became undisputed leader. He and his followers also believed that Hungary and the dynasty had been historically tied together by contracts, especially by the fundamental contract of the 1723 Pragmatic Sanction through ‘mutually dependent conditions’. Unlike Kossuth, they did not derive from the idea of contract its radical corollary: that it could be terminated. When the contract was broken by one side, the essence of Deák’s argument was that the other side should resist until the contract was restored through diaetalis tractatus.46 This moderate use of contractualist politics led to a lasting constitutional settlement in 1867. Apart from the fĳirst few years after 1867 political support for the Settlement (labelled inaccurately and unfairly as the ‘Compromise’) was never very strong. Deák’s ideas could never compete with Kossuth’s vision of Hungary endowed with the ‘right’ to be a fully independent state. The county remained an important centre of resistance against the new system. Although, through the establishment of representative government, it had lost most of its political power, its autonomy was restored which induced county Heves, later followed by others, to pass resolutions opposing the Settlement even as early as 1867. Heves went on resisting until 1869. The government, following established practice, suppressed the resistance by dispatching a royal commissar. For this it was fĳiercely attacked by the opposition in the House of Representatives (hereafter the House). Prime Minister Tisza did his best to weaken county autonomy by building up local institutions under ministerial control. His successor in 1891 even tried to introduce an appointment system for all county offfĳi- cials, which many liberals demanded. The bill the government introduced faced such robust obstruction in the House that the whole question of the county’s position was postponed indefĳinitely. County autonomy was still widely regarded by the political class as a constitutional guarantee of Hungary’s rights.47 Half-domesticated, never a pussy-cat, the county was

46 Manó Kónyi, Deák Ferencz beszédei, Budapest, 1903, vol 3, pp. 35, 40, 47–48. 47 László Péter, ‘Die Verfassungsentwicklung in Ungarn’, in Helmut Rumpler & Peter Urbanitsch (eds.), Die Habsburgermonarchie 1848–1918, vol 7, part 1 (‘Verfassung und Parlamentarismus’), 2000, Vienna, pp. 492–96. 128 chapter two ordinarily docile but now and again it reverted to type with wild-cat strikes of vis inertiae. No longer its own master, the county nevertheless still remained an efffective forum of resistance. Its ability to cooperate with others ensured the wide dissemination of its influence. There were other foci of resistance: Forty-eighter clubs, university student associations, and an expansive literature in which jurists provided novel interpretations of the laws in an attempt to establish new national rights (nemzeti jussok). There were riots, demonstrations against the government in the capital and, above all, there was vigorous opposition in parliament. All these forces often worked together. Most of them came together in creating the constitutional crisis of 1905–06. Parliament resolved that the counties should obstruct the implementation of the decrees issued by the ‘unconstitutional’ Fejérváry government. The counties used the traditional vis inertiae rather than lawful procedure in their resistance. The government then, as earlier, sent commissars to restore order, although this move frequently led to further unrest because, as was now claimed, the commissar was an institution alien to the Hungarian constitutional system.48 County offfĳicials duly carried out the ‘sealing-wax revolution’ (pecsétviasz forradalom). Sealing up the committee rooms, the traditional locus of their power, they broke up the chairs of the commissars (the széktörés is a medieval form of resistance to authority)49 while the commissars were pelted with eggs by mobs on their arrival. When István Tisza, backed by the House’s majority, changed the standing orders to control obstruction, the minority opposition broke the furniture of the House on 13 December 1904 to demonstrate that parliament had lost its authority. Parliamentary obstruction was after 1867 the major form of resistance to government authority. Like the vis inertiae of the counties this form of resistance also had a long background in history and it survived into the age of representative government. The rowdiness of the jurati (secretaries of the deputies) whenever a government supporter addressed the House

48 On street disturbances in Hungary, see Alice Freifeld, Nationalism and the Crowd in Liberal Hungary, 1848–1914, London, 2002, ch. 10; on political disorder between 1903–1906, see László Péter, ‘The Army Question in Hungarian Politics 1867–1918’, pp. 374–79 below; on the (robust) ‘guerrilla war’ of the counties under gentry rule against the government in 1905–6, see József Horváth, Az 1905/6 évi vármegyei ellenállás története, Budapest, [1907], pp. 10–11, 45–51, 65–67, 228–31, 320, 335; on Budapest’s (lukewarm) resistance see Sebestyén Szőcs, Budapest székesfőváros részvétele az 1905–1906 évi nemzeti ellenállásban, Budapest, 1977, pp. 92, 95–96. 49 Cf. A Magyar nyelv történeti-etimológai szótára, Budapest 1976, vol 3, p. 700. ius resistendi in hungary 129 in the Reform era had antecedents as early as the seventeenth century. The April Laws of 1848 put an end to this form of resistance.50 When representative government was restored in 1867, the loosely construed rules of the House’s standing orders, which allowed unlimited debate over bills, weakened the authority of the chair and made it easy for any determined minority to obstruct the work of the House.51 The Forty-eighters, followers of Kossuth, fĳilibustered the bill on franchise reform brought in by the Lónyay government in February 1872. The obstrukció spread like bushfĳire in the House because the Forty-eighters argued that the bill overrode national rights. The government eventually caved in, losing a large part of its legislative programme. The possibility of obstruction, even though unexercised for years, remained a threat which inclined the government to avoid contentious legislation. Obstruction was employed in 1886 and with great ferocity in 1889, in both cases over the common army (its existence itself was seen as an afffront to Hungarian liberty). In 1899, the Bánfffy government was the fĳirst to fall as a direct outcome of obstruction. Parliamentary obstruction created a protracted political crisis in 1903 when the army question swept away three governments and drove the country, indeed the whole Monarchy, into the constitutional crisis of 1905.52 The remedy against parliamentary obstruction by minorities is, of course, the reform of the standing orders which many parliaments carried out in the nineteenth century. Yet Hungarian politicians, apart from István Tisza’s group, were most reluctant to enforce the majority principle. For the country had a constitutional rather than a parliamentary system of government. The wide powers of the king, supported by the resources of the whole Empire, left parliament in an insecure position. Restricting free speech in parliament by the reform of the House’s standing orders, it was argued by many moderate politicians, would alter the constitutional balance between the nation and the crown more heavily in favour of the latter. In Hungary, therefore, obstrukció was not considered to be an aberration but a necessary feature of parliamentary life. Lajos Mocsáry summed up the system as ‘parliamentary tyranny tempered by obstruction.’53 Tisza, putting through the reform of the Standing Orders in 1912, fĳinally obliterated the systematic obstruction in the House. This

50 CJH, 1948, Law IV Sections 10–14. 51 On parliamentary obstruction, see Péter, ‘Die Verfassungsentwicklung’, pp. 469–72. 52 See Péter, ‘The Army Question’, pp. 374–79 below. 53 Péter, ‘Die Verfassungsentwicklung’, p. 471. 130 chapter two made it possible more easily to dispatch business but at the cost of some of the House’s political strength.

Conclusions

It has clearly emerged from this cursory review of Hungarian politics in the periods following Mohács that resistance to authority was essentially about resistance to alien Habsburg rule by native, national forces. This is such a plausible way of looking at the subject that no historian would dissent from it. I would not do either. Yet the subject has a deeper aspect: the conflict between the two sides was not merely political but structural. For each side existed as a distinct repository of rights, a fact which is signifĳi- cant because it goes a long way towards explaining the depths and the indestructibility of the conflicts between the crown and Hungary as a communitas of the Land (ország). This structural dualism had already emerged in the Middle Ages, centuries before the Habsburg succession. Far from being a peculiarly Hungarian feature in medieval Europe, in many other countries institutions also had a binary character. Whereas elsewhere in Europe this feature disappeared, in Hungary the medieval system survived much longer, partly perhaps because the crown did not go native. This is not the place (at the end of this paper) to offfer a proper account of the emergence of the communitas54 i.e. regnum in its ország sense of a political community, which developed side by side to the crown, i.e. regnum designating royal authority. In a purely customary system, which Hungary had, reference to ‘old custom’ already presupposed a notion of ‘we’, i.e. a community in some vague sense. Simon Kézai’s Chronicle written in the thirteenth century, was the fĳirst history of the communitas. It became the source for Thuróczy’s Chronicle of the 1480s which, in turn, provided the basis for Werbőczy’s views.55 By then, the communitas had become a corporation: an ország (regnum) endowed with rights, jussok and obligations towards the crown. Ius was the legal and moral basis of the community’s social norms. In the sixteenth-century translations into

54 On the emergence of the concept of communitas, see Jenő Szűcs, Nemzet és törté- nelem, Budapest 1974, pp. 444–64; Rady, Nobility, Land and Service, ch.10. 55 Péter Váczy, ‘A népfelség elvének magyar hirdetője a XIII. században’ in Károlyi Árpád Emlékkönyv, Budapest, 1933 p. 563 n. 54. ius resistendi in hungary 131

Hungarian of Werbőczy’s customary, somebody’s jussa, igaza, igazsága conflated law, truth and justice.56 The multivocal use of ius shaped the Hungarian mental outlook for centuries which, mixing up the real with the desirable, may go a long way to explain why so many of the resisters’ aims were unrealistic. What may be called the ‘let’s kidnap the emperor’ syndrome is a good example of the political naïveté associated with the images of jus. The historical background of this recurring adventure-dream was the political crisis of Sigismund’s rule. In April 1401 the king was arrested and kept in captivity for six months by leading barons, led by the archbishop and the palatine, until Sigismund met some of their demands.57 This episode fĳixed the imagination of malcontents for generations to come. The syndrome fĳirst occurred after the Peace of Vasvár (1664) in which General Montecuccoli, having defeated the Turkish army, concluded peace as if his army had been the defeated one. Hungary was rife with discontent and conspiracies. Leading men planned to kidnap Emperor Leopold in Austria and keep him in a castle in Hungary until he remedied the country’s grievances. The palatine disagreed but conspiracies went on until 1671 when the court brutally suppressed the movement.58 A classic case of the syndrome is also the Gáspár Noszlopy conspiracy. After the collapse of Kossuth’s independent Hungary in 1849 the country was teeming with conspiracies against the unconstitutional Bach regime. Kossuth’s agents planned to organize a popular uprising to prepare Kossuth’s return from abroad. Noszlopy, one of the participants, did not fĳind the plan radical enough. His plan was to capture Emperor Franz Joseph in Kecskemét, during his visit to Hungary in June 1852, and make him endorse the nation’s demands. The kidnapping was to be carried out by a posse, decked out in sparkling hussar uniforms so as to inspire the ordinary people to rise up against the regime. The reliable tailors of Kecskemét were ordered to work in great secrecy at night on the uniforms. Unfortunately, when Franz Joseph passed through Kecskemét, only a fraction of the uniforms were ready, the kidnapping had to be postponed, and soon after the police (which, as in the seventeenth

56 See DRMH, vol 5, pp. xiii–xv. 57 Engel, Realm of St Stephen, pp. 206–208. 58 Gyula Szekfű, Magyar tört., vol 4, pp. 174–77. 132 chapter two century, knew all about the plan) picked up the participants.59 Conspiracies do not fĳit the Hungarian political mentality (successful conspirators are disciplined and sophisticated in the art of deception; that Hungarians can’t keep secrets is a commonplace). The syndrome survived even the collapse of the Habsburg Monarchy. Zoltán Böszörményi, a leader of the sprouting Right Radical movements in the 1930s prepared an uprising in the Great Plain, including once more Kecskemét, as a preliminary to marching on Budapest to establish a military dictatorship. The conspirators bought up stafff offfĳicers’ uniforms to impress the populace. The rising began in May 1936 and was easily put down by the local authorities.60 The multivocal character of ius = igaz, transmitted by Werbőczy to modern times, was clearly recognized by Ignácz Frank. The respected law professor asked in his textbook: ‘What do we understand by the words truth, justice and law?’ (igaz, igazság és törvény). The gist of his detailed analysis of usages was that igaz, igazság meant, fĳirst of all, that which cor- responded to reality (the Latin veritas, the German Wahrheit). Secondly, it meant justice (justitia, Gerechtigkeit), that ‘each receive his due’. Thirdly, ius was used to mean ius quod quis habet; das Recht was man hat: his liberty, power, property, claim or obligation. But ius did not mean law; for that törvény was the right word which, as in the sense of Gesetz, also embraced custom and other legal sources.61 The untested, hypothetical conclusion of this paper is that the mentality based on ius which developed in relations between the crown and the political class was transmitted to other social and political conflicts before and even after structurally-dualist politics came to an end in 1918. For instance, uses of the word igazság (justice) in the twentieth century remained multivocal. Igazságot Magyarországnak was a much used slogan in political campaigns against the Trianon Treaty. The aviation pioneer, György Endresz, put on his airplane ‘Justice for Hungary’ when he flew from New York to Budapest in 1931. After 1956, a publication bore the title: Mi az igazság a Nagy Imre ügyben? (What is the truth about the Imre Nagy case?). Truth and justice are conflated in the common usage of other East European languages. It is well known that pravda in Russian could mean either truth or justice or law. Apparently the same applies to

59 See Albert Berzeviczy, Az absolutismus kora Magyarországon, 1849–1865, Budapest, 1922, vol 1, pp. 299–300. 60 C.A. Macartney, October Fifteenth, Edinburgh, 1961, vol 1, p. 159. 61 Ignácz Frank, A közigazság törvénye Magyarhonban, Buda, 1845, vol 1, pp. 8–11. ius resistendi in hungary 133

Serbo-Croat and Bulgarian.62 It would be well worth exploring this subject comparatively.

I have benefĳited from János M. Bak’s critical comments on the fĳirst draft. Angus Walker has also read the manuscript. I am grateful for his many suggestions.

62 I am grateful to Dr Catherine MacRobert (Oxford, LMH) for providing this information. CHAPTER THREE

THE IRREPRESSIBLE AUTHORITY OF WERBŐCZY’S TRIPARTITUM1

Hungary’s ancient constitution, as elsewhere in medieval Europe, was generated by custom. However, the Middle Ages lasted longer in some parts of Europe than in others; in Hungary they lasted well into the nineteenth century when, in sharp contrast to Austria,2 where customary law had faded away, custom was still the dominant source of law. Consuetudo regni, as a legal source, possessed greater vitality than royal decree, a decretum enacted by the king with the consent of the estates at the diet, royal privilege, or the judgment of a law court. Werbőczy’s Tripartitum, the work which for well over three centuries lent shape to Hungarian law more than any enactment, was a customary that made only passing nods to law as a deliberate expression of will, the so called ‘written law’, referred to by the author either as decreta or stat- uta or, more frequently, as constitutiones. These terms appear to be synonyms rather than exact equivalents, for they are not interchangeable. For statutes and constitutiones could be either general or local, whereas decree is invariably general and enacted by the king either on his own authority or with an assembly of the nobles. Notwithstanding these divisions, leges (törvények) were, in the Hungarian legal system, essentially customary precepts, a fact that has had far reaching consequences which may not yet have been sufffĳi- ciently appreciated by modern scholarship. There are many reasons which could explain this omission, and the perplexities of Werbőczy’s use of terms provide an important one. Yet too much should not be made of

1 This paper is an extended version of ‘The Primacy of Consuetudo in Hungarian Law’, in Martyn Rady (ed.) Custom and Law in Central Europe (hereafter: Rady, Custom and Law), Centre for European Legal Studies, Occasional Paper no. 6, University of Cambridge, 2003, pp. 101–111. In writing this paper, I am grateful for the advice received from János Bak, Lóránt Czigány, Robert Goheen and Martyn Rady. 2 In nineteenth-century Cisleithania, custom even in civil law was not a recognized legal source (except when the law expressly referred to it—which it hardly ever did): Allgemeines bürgerliches Gesetzbuch (Vienna: Aus der k.k. Hof- und Staatsdruckerey, 1811), Section 10. The 1811 code refers to custom and use on two occasions only—in respect of local pasturing rights and of procedure for reporting ‘lost and found’ property. the authority of werbőczy’s tripartitum 135 the valid observation that Werbőczy introduced learned distinctions in the Prologue of the Tripartitum only to disregard them in the rest of his work.3 This criticism may be unduly severe at least in one respect: the Prologue contains an adequate frame of reference for the corpus as a whole. The conceptual basis of the Tripartitum is simple and consistent, although its consistency may partly be obscured by the medieval abundance of synonyms that adorn its three parts. The scholastic legal culture, already brought to its apogee by the ‘Angelic Doctor’ in the thirteenth century, inspired the selection of Werbőczy’s vocabulary. Accordingly, justice is the foundation and ‘enduring will’ that renders everyone his right (Prologus, Tit. 1.) Notably, in Hungarian somebody’s jussa, igaza, igazsága conflate justice and truth – an indispensable feature (even today) of the Hungarian mental outlook. Werbőczy stresses that ius (right) is a nomen generale and therefore law is a kind of right which could be either a declared norm or custom, or to put it in practical terms, either statute (decretum) of some kind or unwritten law (consuetudo). But which is superior of the two? In the Prologue, Werbőczy, a sixteenth – century Hungarian Bracton, treats consuetudo and decretum as having the same force of law. He argues, not unlike Bartolus, that if a statute law is subsequent to contrary custom, then the statute should annul the custom. If, however, the statute pre- cedes established custom, the latter prevails over the former. Approved general custom cancels the statute everywhere; local custom sets the statute aside only locally.4 Custom interprets, complements and may supplant statute law. We need not follow the large literature on Werbőczy’s foreign sources: what he took from Roman Law (passages from the Digest and so on) and from Canon Law. These influences were secondary. Hungarian law was overwhelmingly vernacular in form and content. Indeed, the Latin terms adopted from the Canonists and the Civilians sat rather uncom fortably on Hungarian social relations and indigenous procedures. Characteristically, Werbőczy in the so-called Operis Conclusio, which follows directly upon the Third Part, afffĳirmed that his work was written non nisi nostratium usui futura erant. For this reason he did not shrink from bringing in words used in Pannonia rather than

3 György Bónis, Középkori jogunk elemei [Elements of Our Medieval Laws] (Budapest: Közgazdasági és Jogi Könyvkiadó 1972), pp. 237fff. In the past the Prologue was seen as the foundation of the work; Bónis, by contrast, emphasized that the ‘true Werbőczy’ could be found in the three parts, ibid., p. 261. 4 Prologue, Tit. 12. 136 chapter three among the Latini. (Even without the benefĳit of Wittgenstein let alone Gadamer, Werbőczy showed a notable sensitivity towards the use of language). After the Prologue, as soon as he starts describing the Hungarian system, Werbőczy abandons the view that custom and statute are diffferent and equal sources of law.5 Consuetudo lies behind and is paramount over all other forms of law: royal edicts, letters of privilege, judgments of the court and decreta regni. The Civilian Béni Grosschmid, by reference to Pt.2. Tit.6, concluded that Werbőczy understood by consuetudo the legal system as a whole; György Bónis, a legal historian, pointed out that consuetudo freely selected for adoption from decreta, including even the incumbent king’s.6 Law is not made or created; it is not an expression of will – not even the deliberately expressed will of the community. Law is ius, right, which exists as the approved habits and usages of the community.7 The statutes only record and promulgate customary rights recognized as already binding. Not unexpectedly, near contemporary translations of Werbőczy’s customary titled the book as the Magyar Decretum or Törvény Könyv.8 Ius, for Werbőczy, is not unchanging: it adapts to varying circumstances. But the adaptation is not judicial. Ius is not judge–made law: judicial practice is merely evidence rather than the cause which gener- ates ius.9 For Werbőczy and for his successors over three centuries, the

5 For a fĳine analysis of Werbőczy’s use of custom, pointing out the direct or indirect influence of Bartolus in the Prologue and its abandonment in the main text, see David Ibbertson ‘Custom in the Tripartitum’, in Rady, Custom and Law, pp. 13–23 (p. 19). 6 Béni Grosschmid, Magánjogi előadások [Lectures in Private Law] (hereafter: Magánjogi) (Budapest: Athenaeum 1905), p. 405. György Bónis, ‘Törvény és szokás a Hármaskönyvben’, in Elemér P. Balás et al., Werbőczy István (hereafter: Balás, Werbőczy), Acta Juridico-Politica 2, 1942 (Kolozsvár), pp. 121–40 (p. 128). 7 The Tripartitum itself was the best example: a personal rather than ‘offfĳicial’ publication, it became ‘law’ and was frequently republished together with the decreta regni, which sometimes even referred to it, as Werbőczy’s work had acquired general approval even before its fĳirst publication in 1517. Yet, notwithstanding its authority, theTripartitum , by not being an offfĳicially approved text, allowed open debate on the law. János (Joannes) Kitonich’s work (Directio Methodica Processus Judiciarii, Nagyszombat: Mollerus, 1619), for instance, generated a literature well before the nineteenth century, giving a good start to the growth of Hungarian jurisprudence. 8 The title of Balas Weres’s translation of the Tripartitum was Magyar Decretvm (Debrecen: Hofffhalter, 1565); Gáspár Heltai’s was Decretvm. Az Magyar és Erdely Országnac Töruény Könyue (Kolozsvár: Heltai, 1571); see István Csekey, ‘A Tripartitum Bibliográfĳiája’ [The Bibliography of the Tripartitum], in Balás, Werbőczy, pp. 141–94 (pp. 158, 160). 9 Judges often took decisions without reference to statute law juxta antiquam et approbatam consuetudinem. See Ferenc Eckhart, ‘Jog- és alkotmánytörténet’ [History of Law and the authority of werbőczy’s tripartitum 137 authority behind ius non scriptum as much as written law is the approval of the community, the tacitus consensus populi. Werbőczy’s populus, however, is made up by the nobility only; the ignobles, the plebs are excluded from the ‘people’. The ‘lawmaker’ is to discover and express and the judge merely to apply that consensus of the noble community. Art. X of 1492 ordains the judges to administer justice juxta antiquam et approbatam consuetudinem. Political authority, as much as all the other concerns of law, was founded on ius. It could not have been otherwise because before the nineteenth century the legal system was not even diffferentiated into ‘public’ and ‘private laws’. A learned man, Werbőczy in the Prologue distinguished ius publicum from ius privatum only to ignore the distinction subsequently. Succession in the royal offfĳice,10 the coronation, the royal oath, the Inaugural Diploma, the constitution of the diet and also the ambit of the diet’s authority were largely regulated by custom. And so were the rights of the king to rule and govern as much as the rights of the nobles and other privileged groups and those of the counties and sedes of the districts.

Decreta Regni

In the fĳifteenth century the decretum generale became a kind of contract between the king and the diet of the ország (noble community) rather than, as it had been earlier, a letter of privilege issued by the king. From this time onwards the totum corpus of the ország appeared to be an independent partner. After the Habsburg dynasty had acquired the throne in 1526, the authority of the diet and that of the decretum increased without, however, leading to a statutory system of law. The decreta regni, the statute laws, which had accumulated in manuscript collections for centuries, were published for the fĳirst time by two bishops in 1584 in Nagyszombat (Trnava).11 Like the Tripartitum, this was not an authorized publication,

Constitution] in Bálint Hóman (ed.), A magyar történetírás új útjai [New Ways of Hungarian History] (Budapest: Magyar Szemle, 1931), p. 283. 10 Despite the introduction of agnatic succession in 1687 and of cognatic succession in 1723, the Hungarian Pragmatic Sanction limited by these decreta the acceptance of the rules of succession to specifĳied branches of the dynasty. The estates preserved ‘the approved customary right’ to elect the king should these branches become extinct. See Art. III of 1687 and Art. II of 1723, Section 11. 11 Zakariás Mossóczy and Miklós Telegdi, Decreta, Constitutiones et Articuli Regum Inclyti Regni Ungariae. The work was based on codex collections and the appendix of a published historical work by Bonfĳini. See Béla Iványi, Mossóczy Zakariás és a magyar 138 chapter three although issued under royal license, as were all the many other editions that followed. The Jesuit Márton Szentiványi’s edition of 1696 fĳitted the title Corpus Juris Hungarici (hereafter: CJH) to the collection. Future editions added new decreta to the corpus without, however, deleting those which were no longer regarded as being in force. In this sense the CJH soon become a ‘corpus clausum’. The Tripartitum was usually published together with the decreta, and most editions contained various supplementary legal material.12 The principle that the diet and the king make and unmake laws was not accepted for at least another century. The nobility stubbornly fought against the so–called Revisions–clausel which the court had inserted in Joseph’s coronation oath and the text of the Inaugural Diploma in 1687. The neo-rex promised to observe the nobility’s ‘immunities, liberties, rights, privileges and approved customs as the king and the assembled estates will have agreed on the interpretation and application thereof’. Did the court use the future perfect tense in order to undermine the primacy of consuetudo?13 The noble ország was in uproar. The clause was left out of Maria Theresa’s coronation oath, albeit not from her inaugural diploma. Art. VIII of 1741 expressly exempted, however, the cardinal privileges of the nobility from the implication of the ‘revision clause’, so that fundamental rights could not even be brought before the diet for discussion. Basic customary rights were subject neither to revision nor even to interpretation by the diet. The decreta did not set out the recognized rights and obligations: they presumed their existence; they alluded to, referred to and frequently plainly borrowed their legal authority from rights held in consuetudo. In the eighteenth century both the king and the nobility had vested interests against much statute–making. Statutes

Corpus Juris keletkezése [Zakariás Mossóczy and the Origins of the CJH], (Budapest: MTA, 1926). 12 See Andor Csizmadia, ‘Previous editions of the laws of Hungary’ in DRMH 1, pp. xvii–xxxiii. 13 The contended passage ran: prout super eorum intellectu, et usu, regio a communi statuum consensu diaetaliter conventum fuerit; in Art, 1 of 1687, §2 (the text of the oath), the word diaetaliter was added only after the coronation. See Gustav Turba, Die Grundlagen der pragmatischen Sanktion,(Vienna: Universitäts-Buchhandlung, 1911), I, pp. 48–63, 249– 50, 258–59; István Ereky, Jogtörténelmi es közigazgatási jogi tanulmányok [Studies in Legal and Administrative History] (Eperjes: Sziklai, 1917), I, p. 184 n 2; Béla Baranyai, ‘Hogyan történt az 1687/88, évi 1–4, tc. szerinti törvényszöveg becikkelyezése’[On the Enactment of Laws 1687–88 Art. 1–4], A gróf Klebelsberg Kuno Magyar Történetkutató Intézet évkönyve, (Dávid Angyal, ed.) (Budapest: MTA, 1933), esp. p. 70 and n. 16. Baranyai’s otherwise excellent study offfers a good example of historians’ reluctance to accept that before the the authority of werbőczy’s tripartitum 139 too often created duties for someone; they reduced the scope of free bargaining. Characteristically, even at the end of the nineteenth century the millenary (the so called Márkus) edition of the CJH was still fĳight- ing the ‘revision-clause’. Kolosvári and Ovári, by ignoring the future perfect of the text (fuerit) translated the critical passage in the Inaugural Diploma of Charles III (1715 Art.2 Section 5) as ‘the king and the estates have agreed…’. It would, however, be a grave error to conclude from all this that rights in Hungary were set in stone and that politics drifted towards stagnation. The dominance of a set of hypothetically unchangeable customary rights did not lead to political immobility. On the contrary—the immutability of custom went hand in hand with a high degree of volatility in the relationship between the two possessors of iura: the crown, representing the royal offfĳice, and the nobility, organized in theország . For mixed constitutions, like the Hungarian, were unstable afffairs.14 Although the influence of the Enlightenment, and in particular that of Montesquieu, was considerable among educated Hungarian nobles in the late eighteenth century,15 even Art. XII of 1790 de legislativae et executivae potestatis did not change the position of statutory in relation to customary law. The import of this widely misunderstood law, was that those royal decrees which the court feared would in Hungary be deemed to be in conflict with ország rights and were enacted as patents rather than being sent to the counties for promulgation, had no legal force: patents could not replace decreta. The executive power had to be exercised nonnisi in sensu legum; it could not contravene statute law. In the renowned Art. X of 1790, Leopold recognized (benigne agnoscere dignita est) that Hungary is ‘to be ruled and governed’ by its king in accordance with its propriis legibus et consuetudinibus. The immutability of basic rights was reafffĳirmed in Art. III of 1827 and in Ferdinand’s Diploma of 1830. The decisive change came in 1848 when many fundamental rights of the nobility were abolished and the country’s constitution was transformed by the April Laws.

nineteenth century szokás was also törvény. He was perplexed why from the draft oath demanded by the diet, the term törvény (i.e. statute) was missing, ibid., p. 102, n. 79. 14 László Péter, ‘Die Verfassungsentwicklung in Ungarn’, in Helmut Rumpler and Peter Urbanitsch (eds), Die Habsburgermonarchie 1848–1918, 7 (Vienna: Öster. Akad. Wiss., 2000), (hereafter, ‘Verfassungsentwicklung’), pp. 239–540 (p. 257). 15 Cf. László Péter, ‘Montesquieu’s Paradox on Freedom and Hungary’s Constitutions, 1790–1990’, pp. 156–57 below. 140 chapter three

Legislation and Consuetudo

Between 1790 and 1848 a major shift occurred: the principle of legislation, that laws are made and unmade by the diet and the king, as the joint authority that exercised this power as an exclusive right, acquired general acceptance. It could be argued, by reference to Werbőczy’s work, that Hungarian law now moved from the assumptions of the main text of the Tripartitum to the declared principles of the Prologue: statute became an independent source of law which existed alongside custom. Whereas törvény had hitherto signifĳied custom as well as statute law, ‘law’ now became confĳined to statute: the joint enactments by the king and the diet. In this way, the emergence of the concept of legislation could, without much trouble, be read into the Tripartitum. The emergence of liberal nationalism was the political background of this change. Legislation became the central concern of the diet in the 1830s. The great achievement of Count István Széchenyi’s Hitel (Credit, 1830) was that it created a public opinion which rejected the precept that some laws were immutable. Inspired by Bentham’s The Book of Fallacies, Széchenyi argued that clinging to the ideas that ‘laws were unchangeable and irrevocable would leave politics in the hands of the ignorant’.16 Following Széchenyi, Kölcsey, Deák and their associates, and later Kossuth, aimed to reform Hungarian society by making statute laws. None, however, asserted a dogmatic, statutory view of the law. Deák, for instance, repeatedly and consistently held the view that ‘our national rights’ (nemzeti jussaink) were partly based on customs and partly on written laws and that ‘we have always respected the lawful customs maintained unimpaired as laws (törvények)’.17 But Deák domesticated a signifĳicant terminological innovation (ignored by historians). Urged by a review in the Athenaeum on his report to County Zala, Deák in 1842 began to use the more abstract and flexible word jog instead of jus.18 The acceptance of jog made it possible that the use of

16 Béla Iványi-Grünwald (ed.), Gróf Széchenyi Isván összes munkái, [Collected Works of I. Sz.] (Budapest: Magyar Tört. Társ., 1930), 2, p. 425. 17 On 25 May 1833 in the Lower House on the religious issue: Manó Kónyi, Deák Ferencz beszédei [Speeches of F.D.] (hereafter DFB), (Budapest: Franklin, 1903), I, p. 14. On occasions, Deák even suggested that the source of every right of the nation, including the right to legislate at the diet, was the county (which provided the deputies with instructions): on 16 June 1835 at a circularis sitting; ibid., p. 163. 18 DFB, I, p. 553. Leading jurists were reluctant to accept the word ‘jog’. The distinguished conservative professor, Ignácz Frank, in his submission to the law faculty of Pest in 1837 forcefully argued against the replacement of jus (= törvény) by jog. Ferenc Eckhart, the authority of werbőczy’s tripartitum 141 törvény became confĳined to statute law. On the role of custom, however, Deák did not change his views after 1848. He used customary as well as statutory arguments in demanding that the constitutional settlement with the monarch should be founded on the 1848 Laws rather than on the basis of the ‘1847 constitution’, the March Constitution of 1849 or the October Diploma.19 Likewise, in the prologue to Law XLIV of 1868 Deák inferred the claim to an ‘indivisible, unitary Hungarian nation’ from ‘the basic principles of the constitution’: essentially a customary concept. The most authoritative enactments on the constitution right up to the end of the Monarchy maintained a two–track view of Hungary’s laws. It was not lip-service to the past that prompted Franz Joseph, in his coronation oath and in the Diploma, to promise to maintain Hungary’s and its associated Lands’ ‘exemptions, privileges, lawful customs … and statutes’ (Law II of 1867).

The Ascendance and the Eclipse of the Tripartitum

How did the authority of the Tripartitum fare in the early Modern Age? After Mohács (where in 1526 Suleiman the Magnifĳicent’s army annihi- lated the royal Hungarian forces), the dominating influence of Werbőczy’s work increased. In conditions of the established alien Habsburg rule, Turkish occupation and the threefold division of the kingdom, the Tripartitum, which consolidated a single legal and social system in Croatia, Transylvania as well as Hungary proper, acted as a force of integration for the kingdom as a whole. Moreover, the precept that consuetudo, the approved habits and usages of the community, was paramount over all other forms of law proved to be an efffective counterweight to the overbearing Habsburg imperial— royal state machinery. The seventeenth century was a protracted Time of Troubles in Hungary. In the sixteenth century wars and disorders were aplenty, but between the Bocskai uprising in 1603 and the Rákóczi revolt in 1703–1711 one armed uprising followed another by sections of the nobility. The renowned primae nonus of the Tripartitum provided the dynamite for these upheavals.

A jog- és államtudományi kar története, 1667–1935 [History of the Law Faculty 1667–1935], (Budapest: Pázmány Péter Tud. egy., 1936), pp. 362–64. 19 See Péter, ‘Verfassungsentwicklung’, pp. 301–303. 142 chapter three

Werbőczy in that article listed the four cardinal liberties of the nobility: they (1) cannot be arrested without proper judicial procedure; (2) are under the authority of the lawfully crowned king alone; (3) are exempt from any servile obligations and also from paying taxes of any kind, their only obligation being the taking up of arms in defence of the kingdom. The nub came in the last point (4): should the king violate the liberties of the nobles, they have the right sine nota alicuius infĳidelitatis, liberum illi resistendi, & contradicendi habent in perpetuum facultatem.20 Werbőczy here referred to the authority of clause 31 of Andrew II’s Golden Bull of 1222,21 which had conceded ius resistendi to the nobility, to which, Werbőczy claimed, all kings, before their coronation with the Holy Crown, had taken the oath (only some had done). Under great pressure from the court, the diet in 1687 (Art. 4) annulled the ius resistendi. This decretum, however, failed to acquire tacitus consensus populi; revolts went on una- bated. And this was why kings at their inauguration right up to 1916 expressly excluded from their oath clause 31 of the Golden Bull. After 1711, when tranquillity was restored in the kingdom, the Tripartitum remained the basic reference in the hands of the nobility in resisting, through the counties, the court’s growing administrative interference in their antiquated social relations and Vienna’s policies to reduce their tax exemptions. Surprisingly, even the influence of the Enlightenment among the educated nobility did not damage Werbőczy’s position. In fact, Montesquieu’s Spirit of the Laws became a most popular reading.22 This was partly because of the very flattering passage in the book about the valour of the Hungarian nobility towards their monarch,23 but even more so because of Montesquieu’s thesis that ‘without monarchy there was no nobility; without nobility, no monarchy.’24 This principle was understood to endorse the structural dualism of the Hungarian system in which the indefeasible rights of the nobility encountered the prerogatives of the monarch. Moreover, the nobility learnt from Montesquieu that what they had possessed for centuries was not just a collection of customary (including some cardinal) rights, but indeed the whole system of a ‘constitution’. Werbőczy became the guardian of Hungary’s avita

20 Trip., 1.9; cf. 2. 14 [12]. 21 János M. Bak et al (eds), The Laws of the Medieval Kingdom of Hungary, 3 vols, Salt Lake City, UT, 1992–93 (hereafter: DRMH), 1, p. 3. 22 László Péter, ‘Montesquieu’s Paradox on Freedom and Hungary’s Constitutions 1790–1990’, pp. 155–61 below. 23 Spirit of the Laws, Bk. viii, ch. 9. 24 Ibid., Bk ii, ch. 4. the authority of werbőczy’s tripartitum 143 constitutio: the fundamental political and legal structure of the social order led by the natio Hungarica. Even Rousseau was adjusted to the Tripartitum. At the 1790 diet, the dominant Péter Balogh party claimed that Emperor Joseph II’s rule had been ‘unconstitutional’ because the monarch, by removing some of the nobility’s unchangeable rights, had broken the contract between the king and the people—that is Werbőczy’s populus. As Gyula Szekfű aptly remarked, in the Hungarian version of the social contract the Balogh party ‘dressed up Werbőczy in garments borrowed from Rousseau.’25 The Tripartitum lost its unique position in the nineteenth century. Werbőczy’s work could not be stretched to support the liberal program of creating a Hungarian civil society. In the 1830s liberal nationalists challenged the precepts of the Tripartitum. Following Széchenyi, the intellectuals and the politicians of Young Hungary set their mind to building a social order based on legal equality. The ancient constitution had to be transformed; the medieval system of privileges had to go. The whole nation rather than only the populus Werbőczyanus (less than fĳive percent of Hungary’s inhabitants) were to be placed under the same statutory laws, obliterating the legal diffferences between nobles and the rest of the population. The system of inheritance, expounded in the Tripartitum, had to be replaced by modern property laws. Above all, representative government was to be established. In 1848 this program (or at least its spirit) was enacted in the April Laws. The social order, based on equality before the law, was combined with the principles of representative government and ministerial responsibility. The April Laws, products of a revolution, were suspended by the emperor in 1849. The continuity of Hungarian law was now broken, creating uncertainties for decades to come. Imperial patents, issued in 1852 and later, introduced the Austrian Penal Code and the Civil Code. Although these enactments unifĳied Hungarian law and established legal equality,26 their validity became uncertain in 1860 and again in 1867 because they had been instituted by octroyed alien laws. The Lord Judge

25 Bálint Hóman and Gyula Szekfű, Magyar történet [Hungarian History], (Budapest: Királyi Magyar Egyet., 1936), vol 5. p. 57. 26 Cf. László Péter, ‘The Aristocracy, the Gentry and their Parliamentary Tradition in Nineteenth–Century Hungary’ (hereafter: ‘The Aristocracy’), p. 311, n. 20 below. 144 chapter three

Royal Conference restored parts of Hungarian customary law by the composition of the Provisional Judicial Rules in 1861.27 The enactment itself had force of law on a customary basis because the king, not yet crowned, could not lawfully promulgate statute law. But statute law came into its own after 1867.28 The sudden increase in legislation was made possible by a procedural reform. The decretum system, the joint promulgation of all statutes agreed at a diet, was, on the basis of the enabling Law IV of 1848 (§ 2), abandoned after 1867. A statute, irrespective of the force of custom, was promulgated in the capital rather than in the counties as soon as parliament and the king concurred on its text. Politics was the crucial factor in the swell of legislation that followed. The Andrássy government, backed by a large liberal majority in the House of Representatives (hereafter the House), had a clear program: the creation of a single Hungarian society of citizens out of the disparate segments of the old order. Codifĳication became the new canon. Impressively large areas of law were brought under statutory control regarding property, contract, commerce, credit and in industrial laws. The Penal Code, enacted as Law V of 1878, established the twin principles of nullum crimen sine lege and nulla poena sine lege. Civil marriage was introduced by Law XXXI of 1894. The underside of this development was, however, that the ideiglenes (the provisional) became the legislator’s most frequently used qualifĳier. Moreover, much was left outside statutory provisions, like the whole gamut of civil rights, the police, the position of civil servants and even a part of the penal law. And this was how consuetudo in the liberal age, after 1867, obtained a second wind. The government motu et potestate proprio regulated by rendelet (decree) wide swathes of social life, and ministers issued orders to settle specifĳic cases. For instance, the Interior Ministry, in supervising associations, exercised the customary rights of the State praeter legem or, so to say, outside statute law. Also, statute law could even widen the orbit of ministerial power. Law XL of 1879, an adjunct of the penal law, authorized ministers to institute by rendelet offfences kihágások)( at their discretion. This summary jurisdiction was largely administered by ministry and local

27 Károly Szladits, Az osztrák polgári törvénykönyv hatásában a magyar magánjogra [The Influence of the Austrian Civil Code on Hungarian Private Law], (Budapest: Politzer, 1933), pp. 24–35. 28 Whereas all the decreta promulgated between 1740 and 1835 made up a single volume of 511 pages and those between 1836 and 1868 another one of 600 pages, the Laws of 1869–71 produced a volume of 508 pages and the next one for 1872–74 contained 390 pages. the authority of werbőczy’s tripartitum 145 offfĳicials rather than by the law courts.29 Social legislation rarely embellished the Corpus Juris Hungarici. Labour laws, laws on the press and on church–state relations were inadequate. In general, laws lacked proper procedural rules: the customary rules of offfĳice practice were enough. The Civil Code, on which scores of jurists and civil servants worked for decades, went through several drafts and was discussed at diverse conferences, but it remained a ministerial draft. Like Werbőczy’s Tripartitum, the Code was, after the turn of the century, applied by the law courts as a customary.30 This blemish was not put right even after 1918. Amazingly, Hungary’s fĳirst statutory Civil Code was passed by a toothless communist parliament in 1959 and it came into force in 1960. In sum, customary law was flourishing in the liberal era. Together with government rendelet-decree (which in the Hungarian system could be regarded as the ‘customary right’ of the State), it retained a formidably strong presence in the legal system. This position was recognized by statute law in 1869 (Law IV Section 19) which ordained that judges in the law courts must apply statute law, government decree and local government order (the last two could not conflict with statute) as well as lawful custom.

Jurists and the Two-Track view of Legal Sources

Not surprisingly, the relationship of custom to statute law preoccupied jurists.31 Did each possess the force of law to the same extent? Which one was to give way if conflict arose? Ignácz Frank did not think that custom could annul statute in property law, but otherwise it might, and the presumption of law was always on the side of custom.32 Antal Cziráky, Lord

29 See Péter, ‘Verfassungsentwicklung’, pp. 370–78. 30 See Károly Szladits, ‘Codifĳicatio’, in Dezső Márkus (ed.), Magyar Jogi Lexikon [Hungarian Legal Encyclopaedia], 6 vols, (Budapest: Pallas, 1898–1907), (hereafter: MJL), vol 2, pp. 552–54. 31 Ernő Nagy believed this problem to have been one of the thorniest for a Hungarian jurist: Magyarország közjoga [Public Law of Hungary] (Budapest: Eggenberger, 1891), p. 18. This might have been the reason why in the 1870s many jurists dodged the question of whether or not custom could annul statute. There was, however, general consent on the point that local custom could no longer stand in the way of statute law. 32 A közigazság törvénye Magyarhonban [The Law of Justice in Hungary] (Buda: Magy. Kir. Egyet., 1845), I, pp 76–78, 80. Frank’s two volumes set out Hungarian private law. Most of the other authors quoted below were jurists of constitutional (public) law. My account ignores the earlier literature in which views diverged. After the enactment of Art. XII of 146 chapter three

Chief Justice, emphatically argued that the most important dispositions of public law were based solely on tradition and that consuetudo, as it had the ‘continuous tacit approval of the legislator’, possessed the same legal force as statute.33 Antal Virozsil, law professor and rector of the University at Pest, listed among the sources of public law consuetudo juris after decreta and the pacts between the king and the estates, and put them above the Tripartitum and other sources. Custom, he argued, had the same force as written law.34 Emil Récsi, law professor in Pest, also listed the statutes fĳirst and custom second, but he made it clear that the legal authority of the latter, as an expression of the ‘national will’, was complete.35 The influence of German scholarship on Hungarian jurists was strong throughout the nineteenth century. But German influence did not pull them in the same direction. Both the historical law school and the so– called dogmatic method had disciples in Hungary. In the end, however, the influence of Hugo, Savigny and Puchta, the grand triad of the historical school, proved more enduring than Laband’s, the leading German jurist. It was a short and obvious step to make from the assumption that law was based on tacitus consensus populi to the view that law was the expression of the Volksgeist and then to identify it as the nemzeti szellem (national spirit).36 The change was compatible with the Hungarian outlook that recognized custom as an independent source of law. The historical law school did not, however, have it all its own way. In 1887 Ernő Nagy, a young law professor, published the fĳirst edition of his text–book on public law,37 which was hailed by Gusztáv Schwarcz, jurist and liberal politician, as the work which blew away ‘the traditional fog accumulated by history’ on constitutional law.38 Nagy, under the influence of Laband, predicated Hungarian public law on the concept of the State from which

1790 some jurists, Georch Illés for instance in the 1830s, expressly repudiated the principle that consuetudo derogat legi. 33 Conspectus Juris Publici Regni Hungariae ad Annum 1848 (Vienna: Vallishauser, 1851), Tom. 1, Section 34 (Observantia Regni). 34 Das Staats–Recht des Königreichs Ungarn (Pest: Hackenast, 1865), vol. I, Section 3. 35 Magyarország közjoga a mint 1848–ig s 1848–ban fenállott [Public Law of Hungary to 1848] (Buda–Pest: Pfeifer, 1861), pp 6, 15–19. 36 Ibid., p. 125. Récsi gets close to saying that the Volksgeist lends legal force to the statute. 37 Magyarország közjoga. Államjog [Public Law of Hungary] (Budapest: Eggenberger, 1887). 38 ‘Tanulmány a magyar államjogi irodalom ujabb termékeiről’[Study on the Recent Literature on Hungarian Public Law], Magyar Igazságügy, 28. 3, 1889, pp. 23–35 (p. 34). the authority of werbőczy’s tripartitum 147 it followed that legislation had primacy over custom which it could set aside, whereas custom could not replace parliament–made law.39 But the promoters of the dogmatic method in public law asserted the strictly statutory view of law rather selectively. They applied the statutory view to the reserved rights of the crown, the interpretation of the 1867 Settlement and the relationship of Croatia to Hungary, as defĳined in Law XXX of 1868. They did not apply it to ország rights. Also, they shied away from theoretical arguments. The Civilians, however, demanding codifĳication, boldly attacked Savigny and Puchta’s historical method. Rezső Dell’Adami and particularly Gusztáv Szászy–Schwarz,40 ‘the Hungarian Jhering’, advanced general arguments against the Volksgeist, that ‘miraculous something made by nobody’. Bódog Somló’s critical examination of the concept of customary law was probably the best,41 and Géza Kiss’s was the most comprehensive.42 Kiss argued that statute was the single source of law and that ‘customary law’ was an empty fĳiction.43 The believers in the historical method and the customary law followed the Gestaltungstheorie willy- nilly.44 Like Laband, Kiss scofffed at the idea that custom could conceivably annul statute law.45 Nevertheless, the promoters of the dogmatic method did not break the dominance of the traditional view of customary law.46 The doyen of Hungarian legal history in the last years of the Monarchy, József Illés, a fĳirm adherent of the two–track view of Hungarian law, concluded that

Schwarcz also praised the book in the House. See István Csekey, Nagy Ernő, és a magyar közjogírás új iránya [E.N. and the New Direction of Hungarian Public Law] (Budapest: Franklin, 1926), p. 169 n. 2. 39 Ernő Nagy, Közjog, 1891, pp. 18–19. In later editions Nagy somewhat softened his strictly statutory view. See, op. cit., 1907 edition, pp 27–28. 40 Új irányok a magánjogban [New Direction in Private Law] (Budapest: Athenaeum, 1911). 41 A szokásjog [Customary Law], (Kolozsvár: Stein János, 1914). 42 A jogalkalmazás módszeréről [Method of Law Application], (Budapest: Athenaeum, 1909). 43 Ibid., pp. 115, 207. 44 Ibid., pp. 105f. The theory holds that customary law is rooted in the implied permission of statute law. While the Gestaltungstheorie is too contrived to explain Hungarian law, the postulate of the traditional view that legal rules exist which may or may not be in conflict with statute law, and which, because they have acquired general consent, the judge is merely to apply, brings the argument dangerously close to Humpty Dumpty’s claim about the use of words. 45 Ibid., pp. 219–20, 224–27; the question, he insisted, was in fact that of interpretation of statute law. 46 Géza Kiss recognized this in 1916: ‘A desuetudo tanához’, [On the Doctrine of Desuetudo] in Jogi dolgozatok [Legal Studies], (Budapest: Franklin 1916), pp. 368, 373. 148 chapter three custom could, as it had in the past, annul statute law and that the jury was still out on the question of the exact relationship between the two sources of law.47 And so argued Béni Grosschmid, the most influential Civilian of the period.48 The six–volume Hungarian Legal Encyclopedia also took the traditional view on customary law.49

Werbőczy Reclaimed

The authority of the Tripartitum went into an eclipse before 1848 which, however, lasted only a few decades. After the principles of civil society were fĳirmly in place, the authority of Werbőczy’s law-book revived. There were many reasons for this. The survival of the two-track view of Hungarian law was obviously indispensable to the revival. The view held in general that Hungary had a historical rather than a chartered constitution also provided a strong boost to the restoration of the Tripartitum’s authority. Social factors played a role too. After the social transformation in the middle of the nineteenth century, the gentry landowner descendants of Werbőczy’s populus, preserved their ascendancy in Hungarian society.50 And there was still the (alien?) dynasty on the throne. Werbőczy once more became a defender of Hungarian constitutional liberties. A passage in the Tripartitum, indeed the only one, became the locus classicus for reference to the ‘doctrine of the Holy Crown’, a political creed that has not yet ceased to haunt historians and a part of the Hungarian public. The doctrine holds that from the Middle Ages the king and the diet (later parliament) have jointly possessed the Holy Crown, in which Hungary’s legal and political sovereignty resides. What the reader fĳinds in Section I Tit 4 [1] of the Tripartitum, however, is that the nobles who received their landed property from the king, earned by services, were membra sacrae coronae. Werbőczy explains very clearly what he means. The Hungarians freely elect their king and thereby transfer the jurisdiction of making laws, donating land, ruling and governing to the Holy Crown, and consequently to the king. On the other hand, the source of the nobility’s land, donated by the king, is the authority of the Holy

47 József Illés, Bevezetés a magyar jog történetébe [Introduction to the History of Hungarian Law], (Budapest: Rényi, 1910), pp. 50–51; repeated in the 2nd edition (ibid. 1930), pp. 108–109. 48 Grosschmid, Magánjogi, pp. 398–412. 49 Béla Ladányi, ‘Szokásjog’ [Customary Law] in MJL, 6, pp. 438–44. 50 Péter, ‘The Aristocracy’, pp. 320–27 below. the authority of werbőczy’s tripartitum 149

Crown. ‘And the two, by virtue of some reciprocal transfer and mutual bond between them, depend upon each other.’ He goes on: ‘And these nobles, because of the involvement (i.e. the donativa libertas) and connection described immediately above, are considered members of the Holy Crown.’51 Clearly the context of Crown membership in the Tripartitum is service to the king (thereby to the Holy Crown, the owner of all lands) and the system of land donation, rather than political participation by the nobility. Werbőczy does not even mention the diet by name (he uses the term congregatio generalis only for the county assembly), either in Part 1 where crown membership occurs, or indeed anywhere else in his work, and he deals with the subject of the political participation by the people in statute making in Part 2. In Werbőczy’s view, the nobility through its customary rights shared, together with the counties and the diet, power with the crown, rather than with the king in the crown. How legislative sovereignty was later read into Werbőczy has a long chequered history of which here only the barest possible outline can be given. The organic image of crown membership when applied to persons rather than territory became a part of political rhetoric but it never appeared in statute law. For many years after Werbőczy, the metaphor did not suggest a political corporation (corpus) which comprised the king and the nobility. Regnum in its ország sense was, of course, a corpus which comprised the nobility (sometimes even the royal towns) or their diet. After 1790 a subtle shift occurred in the usage of the crown metaphor. It followed from the Tripartitum that nobles, because they received land from the king and were called members of the Holy Crown, appeared at the diet. According to the new view, however, the nobles, because they participated in legislation at the diet, were members of the Holy Crown. From the early nineteenth century, the organological metaphor was extended to include the whole nobility rather than the minority of donatarius nobles, and later even the whole citizenry. Moreover, from the 1830s, the ‘legislative rights of maiestas’, national or ‘state-rights’ became associated with crown membership. Then, in 1875, the legal historian Imre Hajnik claimed that in Hungary public power in its entirety resided in the totum corpus sacrae regni coronae. As is well known, not a single example of the florid idiom has turned up in the documents. The growth

51 See L. Péter, ‘The Holy Crown of Hungary, Visible and Invisible’ (hereafter: ‘The Holy Crown’), pp. 60–65 above. 150 chapter three of political claims read into the Tripartitum was crowned by the politics professor Győző Concha, who two years after the Great Defence Debate in which parliament had challenged the monarch’s reserved army rights in 1889, explained into Werbőczy’s passage the legislative sovereignty of the state. Ákos Timon, another law professor, then applied the doctrine nearly to the entire history of Hungary and the eloquent Count Albert Apponyi, the parliamentary standard bearer of the Hungarian army aspirations, became the most efffective promoter of the doctrine. From the late nineteenth century, Werbőczy received his fair share (if not more) of accolade all round. The Great Civilian, Grosschmid, in one of his habitual brainstorms, opined that without the Tripartitum the political survival of the nation could hardly be even imagined.52 In the rescript of Franz Joseph to the prime minister of Hungary in September 1897, Werbőczy’s was among the ten statues that the king offfered to adorn his Hungarian capital.53 After long wrangling over the venue, Werbőczy’s Carrara marble statue, with the Tripartitum at his feet, executed by Gyula Donáth, was unveiled in 1908 in the main thoroughfare of the Inner Town. The precepts as well as the doctrine read into the Tripartitum survived after the collapse of the Habsburg Monarchy. Before 1918 the adherents of the two–track view of legal sources were on the defensive. After the restoration of the monarchic constitution in 1920 they occupied the moral high ground. Jurists now generally endorsed the view, forcefully argued for instance by Zoltán Kérészy, that lawful custom could destroy statute law.54 As the legal historian, György Bónis, (rightly) pointed out in 1942, ‘our public law even today recognizes the ability of customary law to interpret, substitute and destroy statute law.’55 The 1920 constitutional provizórium was a response to an intractable legal problem which, inadvertently, enlarged the scope of customary law arguments. Legal continuity, ruptured in 1918, could not be restored in 1920, not because of the

52 Grosschmid, Magánjogi, pp. 567–69. 53 Endre Liber, Budapest szobrai és emléktáblái [The Statutes and Commemorative Tablets of Budapest.], (Budapest: Székesfőváros Házinyomda, 1934), pp. 110–11. 54 Zoltán Kérészy, A jogszokás derogatórius erejének kérdése a magyar jogi irodalomban [The Issue of Desuetudo’s Force in Hungarian Legal Literature] (Szeged: Városi Nyomda, 1935). He emphatically denied, however, that state offfĳicials could institute lawful custom contrary to statute law, pp. 27–28. Conceivably, the dissolution of the Habsburg Monarchy and the Hungarian–Croat Nagodba in 1918 weakened the case for the strictly statutory view of constitutional law. 55 György Bónis, ‘Törvény és szokás’, pp. 121–40 (p. 138). the authority of werbőczy’s tripartitum 151 interruption of the short-lived Károlyi and Kun regimes but because legality could only be restored by an act based on the concurring will of king and parliament. The king was not available in 1920, a case of vis major. Rump Hungary had to make do with a rump constitution based on a single actor: the assembled representatives of the nation, hence the label, provizórium. Jurists, particularly Kálmán Molnár, thought that the ‘temporary constitution’ was legitimate by resorting to customary legal arguments.56 Molnár, together with the whole legal corps of the country, an enthusiastic supporter of the Holy Crown doctrine, ferociously attacked the historian Ferenc Eckhart, who in 1931 had critically examined much that had been read into the Tripartitum. In a post mortem of Hungary’s historical constitution, written in 1945, Kálmán Molnár introduced his lament with the famous passage from Julian, ‘the great Roman jurist’, who had established the principle that unwritten law, as much as written law derived its authority from the consent (tacit or express) of the people.57 When the curtain fell on Hungary’s historic constitution, the jurist after four hundred years arrived back where Werbőczy had started. Towards the end of the Second World War the whole social order, with which the Tripartitum was associated, disintegrated. In the new post-war regime, Werbőczy went under and his statue was torn down by a communist youth brigade. He became the chief villain responsible for the country’s social backwardness and class oppression. In the communist legal system neither statute law, passed by a facade parliament, nor consuetudo living in society had much signifĳicance as sources of law. Ministerial ordinance, based on the instructions of party bosses, was the efffective source of law. One could describe the ordinance as the customary right of the state. The doctrine of the Holy Crown became a red-rag for communists: some party hacks even labelled it as a fascist ideology. After the communist system imploded in 1989 Hungary became a liberal democracy; neither the old social order nor the Habsburg Monarchy was restored. Yet political ideas apparently never entirely disappear.

56 Alkotmányos jogrendünk és a közjogi provizórium [Our Constitutional Order and the Provisorium], (Pécs: Danubia, 1926), reprinted in his Magyar közjog (Pécs: Danubia, 1929), pp. 720–43. The gist of Molnár’s thesis was that, as the authorities were habitually obeyed by the population, the legal order had acquired the ‘tacit consent’ of the nation. Molnár’s views, shared by many, were criticized by others. But even the detractors of Molnár’s view on legitimacy believed in the derogative power of lawful custom. 57 A két világháború közötti provizórium közjogi mérlege [An Assessment of the Constitutional Provisorium in the Interwar Years], (Pécs: Danubia 1945), p. 6; cf. Digest, 1. 3.32 (in older editions 1.3.31). 152 chapter three

Much of what posterity had read into the Tripartitum has cropped up in recent years. The doctrine of the Holy Crown re-emerged as the political creed of the right. Moreover, at the millennial celebrations on 1 January 2000 the President of the Republic in his parliamentary address stated that the crown had for centuries signifĳied the supreme power shared between the king and the nation as the crown members.58

Habent sua fata libelli.

58 Péter, ‘The Holy Crown’, p. 423. CHAPTER FOUR

MONTESQUIEU’S PARADOX ON FREEDOM AND HUNGARY’S CONSTITUTIONS 1790–1990

The Paradox

When new political ideas appear some of their implications are frequently not immediately apparent. Ideas acquire a wider signifĳicance than they possessed when conceived through application to diffferent situations. The direct influence of Montesquieu’s views on Hungarian constitutional ideas and his distinction expressed in a paradox on freedom help us to identify the nature as well as the springs of action—which he called the principe—of Hungary’s political institutions for well over two centuries. These are eloquent examples of how some ideas can maintain permanent influence. Montesquieu’s constitutional ideas had a demonstrably direct influence on the Hungarian constitution in the eighteenth century, and they still exert some influence on today’s constitution-making. Furthermore, his paradox on freedom provides a perspective from which the so-called ancient Hungarian constitution, and also the constitution as transformed in 1848 and 1867, can be examined; and the paradox is still pertinent today. It tells us much that a West-European liberal should expect to fĳind in the new constitutional order which now, after forty-fĳive years of Communist rule, has been established in Hungary. ‘I make a distinction’, writes Montesquieu in The Spirit of the Laws in 1748, ‘between the laws that establish political liberty as it relates to the constitution, and those by which it is established as it relates to the citizen.’1 ‘In the former case’, he writes later, political liberty ‘arises from a certain distribution of the three powers: but in the latter, we must consider it in another light. It consists in security, or in the opinion people have of their security.’2 Then comes the paradox: ‘The constitution may happen to be free and the subject not. The subject may be free, and not the constitution.’ As he

1 Bk. Xl, ch. 1. The translations are largely from The Spirit of the Laws, ed. F. Neumann (New York, 1949) (hereafter Montesquieu). 2 Bk. Xll. ch. 1. 154 chapter four explains elsewhere: ‘the three powers may be very well distributed in regard to the liberty of the constitution, though not so well in respect of the liberty of the subject’.3 The paradox may be defective in the form in which Montesquieu presented it, yet it is not the superfĳicial cleverness of a sharp Frenchman. The paradox concerns a distinction that Montesquieu was the fĳirst to make. In sharp contrast to Hobbes, Locke and other writers of the natural law school, Montesquieu was not primarily concerned with the question of whether the citizens had the right to political freedom. He took for granted that they did; His primary concern was what kind of institutions could guarantee the citizens political freedom, to which they were entitled against their rulers. Constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go … To prevent this abuse, it is necessary from the nature of things that power should be a check to power.4 The three branches of government, the legislative, the executive and the judicial, should be largely independent of each other: each should be in diffferent hands. The laws should not be made by those whose task it is to execute them, and those who apply the laws to particular cases—the judges—should again be diffferent. The division of the three-powers principle afffected Montesquieu’s clas- sifĳication of governments. If in fact, rather than in name only, all the three powers were in the same hands, the system was despotic. His examples were Russia, the Ottoman and other Eastern empires. Where out of the three powers at least one, the judicial, if not formally then at least in practise, was largely independent of the other two branches of the government, there the subject enjoyed some security. He was not ‘compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits’.5 In these respects the subject was free. This was more or less the situation in France and in other European monar- chies where, as Montesquieu believed, the powers of the ruler were limited by fundamental laws and the privileges conferred on the nobility. Montesquieu distinguished the limited monarchy from the usually but not necessarily republican governmental system, which possessed a free

3 Bk. Xl, ch. 18. 4 Ibid. ch. 4. 5 Ibid. montesquieu’s paradox on freedom 155 constitution. Both types produced ‘moderate government’. But to ensure that the constitution itself was free the separation of the judiciary from the other two branches was not enough. For the independence of the courts was a remedy against the abuse of the subject’s freedom through the violation of the laws; it was not a remedy against the oppressiveness of the laws themselves. The constitution was free only when, in addition to the judiciary, the other two branches, the legislative and the executive, were also in diffferent hands. For the laws were less likely to be oppressive if those who made them knew that others would be responsible for their execution. Montesquieu thought that in ancient times the Roman Republic possessed a free constitution. In modern times there was also one country, England, ‘that has political liberty as the direct end of its constitution’.6 The two separations of power in Montesquieu, therefore, served diffferent purposes, although Montesquieu failed to make this clear.7 The separation of the judiciary aided the liberty of the subject, whereas the separation of the legislative from the executive power secured the liberty of the constitution. On this basis Montesquieu thought it possible not only that the subject was free, though the constitution was not, but also the reverse.

Montesquieu and the Hungarian Constitution

Ever inclined to romanticise the role played by the nobility in public afffairs, Montesquieu and the Hungarian constitution were a good match. An open-minded traveller with insatiable curiosity, Montesquieu knew something about Hungary. In 1728 he visited Pressburg (Pozsony) during the diet where he met leading public men including the Primate, Count Imre Eszterházy.8 In The Spirit of the Laws twenty years later he wrote flat- teringly about the Hungarian nobility: The House of Austria has never relaxed its effforts to oppress the Hungarian nobility. Little did that House know how serviceable that very nobility would be one day to her. That House sought to extort non-existent wealth from them but failed to see what sort of men these were. When princes

6 Ibid. ch. 5. 7 John Plamenatz pursued the point in Man and Society to which my argument owes a debt (London, 1963), Vol. 1, pp. 274 fff. and esp. p. 281. 8 Sándor Eckhardt, A francia forradalom eszméi Magyarországon (Budapest, 1924) (hereafter: Eckhardt) p. 23. 156 chapter four

combined to dismember Austria’s dominions, all its parts remained immo- bile and powerless, and fell on a heap, as it were. No life was then to be seen but in those very nobles, who, resenting the afffronts offfered to the sovereign, and forgetting the injuries done to themselves, took up arms to avenge her cause, and considered it the highest glory bravely to die and to forgive.9 The passage was an allusion to the scene in Pressburg Castle where in 1741, at the beginning of the Austrian War of Succession, the Hungarian nobility enthusiastically promised a despairing Maria Theresa, damus vitam et sanguinem. Their gallantry saved the monarchy, or so it was claimed.10 For Montesquieu the attitude of the Hungarian nobility in 1741 was a prime example of the fact that in a monarchy it was indispensable that honour, the driving force of the principe of that form of government, was maintained unimpaired. For the Hungarian nobility the passage written by a leading French philosophe, offfered powerful support for their institutions and attitudes. Not surprisingly, Montesquieu’s book shortly after its publication in 1748 became a bible for the nobility. An English traveller, Caldwick, even saw its Latin translation during the diet in a bookshop in Pressburg in 1751.11 The chief reason for the book’s enormous popularity among educated nobles was, however, not the flattering passage. The Hungarian nobility, like many other elites in eighteenth-century Europe, learnt from the book a huge amount about their own institutions. They discovered, not unlike Molière’s burgher who learnt that he was speaking ‘prose’, that what they possessed was a ‘constitution’ rather than just a collection of customary rights.12 They were particularly thrilled by the theory, albeit half

9 Montesquieu, Bk. VIII, ch. 9. 10 A near contemporary parody of the famous declaration, however, went like this: ‘vitam et sangvinem, sed avenam [oat for army horses] non,’ B. Tóth, Szájrul szájra (Budapest, 1901), p. 63. 11 Eckhardt. p. 23; Éva H. Balázs, in Magyarország története 1686–1 790, ed. G. Ember and G. Heckenast (hereafler MT), III (Budapest, 1989), p. 920. The fĳirst Hungarian translation of the full text of Montesquieu’s work was published in Pressburg in 1833: Montesquieu a ‘törvények’ lelkéről, I–III (based on the 1816 Paris edition). The book was retranslated in 1962 (see note 51, below). 12 Nothing reveals better the customary character of Hungary’s institutions than the nobility’s long-standing resistance to the so-called Revisions-clausel which the Court had inserted in Joseph’s Coronation Oath and the text of the Inaugural Diploma in 1687. The neorex promised to observe the nobility’s immunities, liberties, rights, privileges and approved customs prout super eorum intellectu, et usu, regio ac communi statuum consensus diaetaliter conventum fuerit’ Section 2, Art 1 of 1687. The clause (in which the word ‘diaetaliter’ had been added after the ceremony) was left out of Marie Theresa’s Coronation montesquieu’s paradox on freedom 157

understood, of the division of powers. Montesquieu emphatically argued that ‘without monarchy there was no nobility; without nobility, no monarchy. For then there is only a despotic prince’.13 The Hungarian nobility read this passage as confĳirmation that both the monarch and the nobility possessed indefeasible prerogatives, that the two ‘powers’ were intercon- nected and yet existed independently side- by-side. Whereas the executive branch belonged to the monarch, legislation was shared between the monarch and the diet of the nobility. The principle of the division of powers soon became such a commonplace in the kingdom that a libretto written to celebrate the opening of the 1792 Transylvanian diet, personifĳied the ‘three powers’ who were to sing a trio.14 The claim that Montesquieu’s separation of the three powers was a feature of the Hungarian system of government was unrealistic. But separation did exist in Hungary, whose institutions were bipolar: the crown and the nobility, the ország diet, were two largely independent depositories of customary right.15 There was in this sense a division of powers. Werbőczy’s Tripartitum listed the nobility’s cardinal privileges,16 which, together with a large number of other individual and collective rights, were to be maintained unimpaired by the monarch to whom the nobility, through

Oath, albeit not from her Inaugural Diploma. Art. 8 of 1741 expressly exempted, however, the cardinal privileges of the nobility from the implication of the ‘revision clause’ so that they could not even be brought before the diet for discussion, cf 1. Ereky, Jogtörténelmi és közigazgatásijogi tanulmányok (Eperjes, 1917), I, p. 184, n. 2; B. Baranyai, ‘Hogyan történt az 1687/88. évi 1–4. tc. szerinti törvényszöveg becikkelyezése’, in A gróf Klebelsberg Kuno Magyar Történetkutató Intézet évkönyve, ed. D. Angyal (Budapest, 1933), esp. p. 70 and n. 16. 13 Montesquieu, Bk II, ch. 4. Montesquieu’s direct references to Hungary have not yet been collected. Nor, as Éva H. Balázs points out, has Montesquieu’s influence in Hungary been properly studied, MT, IV, pp. 1428–9 (a brief assessment of the primary sources and the literature). 14 Eckhardt, pp. 26–8. After egyenesszivüség (here, Justice) had arbitrated between the other two contending powers, ruling that one should have precedence in ‘legislation’ and the other in ‘government’, the three together sang a trio: Where we three reign harmoniously And strive to one end assiduously There is no one who can mar or otherwise impair Our powerful order constitutionally. Translated by M.C. Ives, Enlightenment and National Revival (Ann Arbor, 1979), p. 74. 15 On Hungary’s bipolar constitution, see L. Péter, ‘The Dualist Character of the 1867 Constitutional Settlement’ (hereafter: ‘The 1867 Constitutional Settlement’), 232–35 below. 16 The so-called ‘Titulus Nonus’, Pt. 1 of Werbőczy István Hármaskönyve (Budapest, 1897) (hereafter Werbőczy), Márkus edition. 158 chapter four diaetalis coronation, the Oath and the Inaugural Diploma, had transferred the right to rule and govern the kingdom. The royal prerogatives, the ország’s cardinal rights arid the ‘mutual connections’17 between the two parties generated a symmetrically linked and mutually recognized set of rights and duties which added up to what from 1790 onwards was called the ‘ancient constitution’.18 At the diet, the chief forum of the institutional links between the crown and the nobility, the two ‘powers’ bargained with each other. The diaetalis tractatus was a procedure through which the representatives of the crown, the aristocracy and the gentry deputies of the Counties dealt with the taxes and army recruits, demanded by the Court, jointly with the grievances and the postulata of the nobility. What they all agreed formed a single pactum, based on consent rather than on the enforcement of the majority principle. The king then enacted the pact in a decretum. From 1790, under the direct and indirect influence of Montesquieu, this process was identifĳied as ‘legislation’, exercised jointly as communicata by the monarch and the nobility, and was distinguished from the ‘executive power’ which until 1848 remained a royal reservata.19 This was the essence of the Hungarian parliamentary tradition20 which secured, through

17 Ibid, Pt. 1, Tit. 3, Sections 6–7. The context in Werbőczy was the transference of royal power and the royal land donation system which created a relationship based on reciprocity. Neither the king nor the nobility could exist without the other. This is close enough to Montesquieu’s view on monarchy, see Montesquieu, Bk. II, ch. 4, cf. note 13. N.B. Werbőczy’s corporate conception of the crown (the landed nobility as its ‘members’) was a simile which expressed the same idea, Werbőczy, Pt. 1, Tit. 4, Section 1. 18 ‘Avita constitutio’ or ‘ősi alkotmány’, frequently mentioned in the decreta of the early nineteenth century (e.g. Praef 1805), appeared in Ferdinand V’s Coronation Oath (Praef and Art. I of 1830) and in his Inaugural Diploma (Art. I of 1836). For the Laws of Hungary, the Márkus edition of Corpus Juris Hung. has been used. 19 Art. Xll of 1790. De legislativae et executivae potestatis exercitio, an essential part of Leopold II’s settlement with Hungary, distinguished the ‘executive power’, reserved to the king from the ‘right of enacting, rescinding and interpreting the laws’, vested jointly in the lawfully crowned monarch and the ország’s assembled Estates. The import of this law was not yet the principle that king and diet could together without legal restrictions make and unmake laws; it was the principle that to make statutes the authority had to be exercised jointly by the diet and the king rather than through edicts issued by the monarch alone. The law left unclear whether ‘legislation’ meant more than the joint declaration of custom by the King and the diet. But after 1830 the concept of legislation (in Montesquieu’s sense) was slowly gaining ground in Hungary. The subject has never been examined by historians, but see Béni Grosschmid Magánjogi előadások (Budapest, 1905), pp. 126, 386, 411 fff. 20 The parliamentary tradition grew out of the medieval idea that the monarch possessed jura maiestatica sometimes without reference to anybody else, at other times he had to act with the consent of others. In 1517 Werbőczy made the distinction in the context of the relationship of privilege to statute law, Werbőczy, Pt. II, Tit. 9. The distinction did not, however, lead to any clear distribution of the subjects between the two categories. montesquieu’s paradox on freedom 159

structural dualism, a constitutional balance between the crown and the noble ‘nation’. Although the balance was always tilted towards the crown, Hungary’s constitution may have been the most efffective in Central and eastern Europe after the partition of Poland. On the basis of the division between the ‘legislative’ and the ‘executive’ powers, and encouraged by Montesquieu, the nobility proudly claimed to possess a ‘free constitution’. But it could not and did not claim that the subject was free in Hungary. One could make the obvious point that the subject was ‘unfree’ in Hungary because its constitution was predicated on the nobility who made up only about fĳive per cent of the kingdom’s population, that the position of the towns, apart from in Transylvania, was marginal and that the rest of the population were serfs. Civil society did not yet exist in Hungary or anywhere else outside Western Europe. More relevant to Montesquieu’s ideas was, however, the consideration that in addition to the parliamentary tradition, which secured a free constitution of a sort, Hungarian institutions exhibited a feature—the autocratic principle of the law—which obstructed the freedom of the subject. The essence of the autocratic principle of the law was the right of the government to issue ordinances. To explain the principle we may start with Montesquieu who argued that the subject was free when he was not ‘compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits’.21 For Montesquieu it was axiomatic that where the law was silent the citizen should be free (and whenever in fact he was not, his freedom was violated).22 This was

Chancellor Miklós Pálfffy requested in his memorandum (c. 1758) to Maria Theresa that a clear separation should be made between the subjects which the monarch could deal with alone and those which required the co-operation of the diet and the Counties, H. Marczali, Gróf Pálfffy Miklós főkancellár emlékiratai (Budapest, 1884), p. 10. Because of the sharply conflicting views between the Court and the nobility concerning the extent of the monarch’s the diet’s and the County’s rights, the issue could never be settled. After 1790 politicians and jurists distinguished the ‘shared’ from the ‘reserved’ rights and waxed indignant about the lack of defĳinitions. See A.M. Cziráky,Conspectus Juris Publici Regni Hungariae ad Annum 1848 (Vienna, 1851) (hereafter Conspectus), Tom. II, Section 324; A.V. Virozsil, Das Staats-Recht des Konigreichs Ungarn (Pest, 1865) (hereafter: Das Staats-Recht), Bd. II. Section 36. The distinction was rejected (and expurgated from legal history) by jurists who elaborated the doctrine of state sovereignty in the 1890s. 21 Montesquieu, Bk. Xl, ch. 4. 22 This was common ground among West-European natural-law-school philosophers. Hobbes’s sovereign, a recipient of the transferred natural rights of the individuals, has no rights except those that have been transferred to it, and Locke’s individuals by putting themselves under government have given up only some specifĳic rights. The eighteenth- century French philosophes followed Locke. The principle went into the 1789 Declaration of the Rights of Man and Citizen: ‘All that is not forbidden by law cannot be prevented, and 160 chapter four the presumption of the law on which justice was administered in Western Europe. In the legal systems beyond the Rhine, the opposite presumption prevailed: where the law was silent, in other words where the subject was not expressly protected by laws, it was the state authorities who were ‘free’. We have now reached the heart of the matter. The state authorities in Central and Eastern Europe could lawfully issue ordinances and act at their own discretion in matters which interfered with the subject. Enacted statute law limited and restricted the area in which the authorities could lawfully act. Beyond the restrictions which statute law imposed on the offfĳicial lay the sphere, termed freie Verwaltung, in which the authorities were free from legal restrictions in their dealings with the citizen: the government had the right to issue ordinances.23 This right, recognised by jurists,24 which may be termed the autocratic principle of the law, was an accepted part of the Hungarian legal system.25 The courts did not ask whether a measure introduced by the government or the local authorities was authorised by the legislature; they invariably applied government ordinances whenever in their view they did not conflict with consuetude or the enactments of decreta or later statute law.26 Even if the judge had been independent, as he was not before the 1860s,27 no one can be forced to do what the law does not prescribe.’ Western Liberalism, ed. E.K. Bramsted and K.J. Melhuish (London, 1978), p. 228. 23 Georg Jellinek, Gesetz und Verordnung (Freiburg, 1887), pp. 255–6. Jellinek dicusses the right in the context of the distinction between formal and substantive law, Pt. II, section ii, ch. 1, pp. 226 fff. 24 Virozsil, like others, argued that the presumprio juris (die rechtliche Vermuthrrng) was, in doubtful cases, on the side of the King and that the monarch’s government possessed the right to issue ordinance as long as it did not conflict with statute law, Das Staats-Recht., II, Sections 36 (esp. p. 5) and 46; Cziráky, less clear on the question of presumptio juris, stoutly endorses the monarch’s right to issue ordinances, Conspectus, Tom. II. Sections 323 and 442. Pál Szlemenics (in his History of Our Laws) listed some ordinances enacted under ‘special royal powers’ which ‘without ever being accepted by the diet have become a part of judicial practise and have been continuously in force, Pál Szlemenics, Törvényeink története (Buda, 1860), p. 136 25 The exercise of this right was presupposed in Art. XII of 1790. De legislativae et executivae potestatis exercitio, where the monarch promised to issue edicts only when the law was otherwise unafffected (in rebus legi conformibus) Also, the monarch promised that the ‘executive power in sensu legum … exercebitur. Law III of 1848 then stipulated that the executive power was to be exercised by the monarch (in his absence by the Palatine through an independent Hungarian ministry’ and it is implicitly maintained the autocratic principle. 26 Consuetudo, as Béni Grosschmid argued, in addition to statute law, set limits to the enforceability of a royal ordinance, but where those limits lay was left entirely unclear. Béni Grosschmid, Magánjogi előadások (Budapest, 1905), pp. 125–29. 27 Before 1848 the monarcil influenced the courts through benigna principis rescripta, see ibid., pp. 127, 191. montesquieu’s paradox on freedom 161 the judiciary could not have protected the subject. Under the autocratic principle of the law only detailed, comprehensive statutory provisions can establish the liberty of the subject, institutions that German jurists later called the Rechtsstaat. These did not exist in Hungary. All in all, and following Montesquieu, it could be argued that in Hungary before 1848 the constitution was free, but the subject was not.

The ‘Kinship Theory’

Few constitutions generated as much political controversy in nineteenth- century Europe as the Hungarian constitution. It could be said that its defenders, as much as its detractors, selected their arguments from only one side of the distinction on which Montesquieu had based his paradox (of which most of them, however, had probably never heard). ‘No other nation apart from the English and the Hungarian can be called free’—declared County Zemplén in its 1784 address.28 The claim of ‘kinship’ between the British and the Hungarian constitutions was the product of the nobility’s resistance to the ‘unconstitutional’ rule of the uncrowned ‘hatted king’, Joseph II. The exploration of the ‘parallels’ between the two constitutions (comparing, for instance, the Magna Carta with the Golden Bull of 1222) became a part of political discourse right down to 1918 whenever the issue was the defence or the extension of parliament’s rights towards the crown.29 Now, the origin of the ‘kinship theory’ unmistakably points to the direct influence of Montesquieu’s book, in which Adalbert Barits, a law professor in Pest and the earliest known propagandist of the ‘theory’, found that the British possessed the best constitution because it had clearly separated the legislative and the executive powers from each other.30 Furthermore, the paradox separated the believers in the ‘kinship theory’ from those who rejected it. The detractors of the Hungarian constitution, Austrian jurists and publicists, the Transylvanian Saxon Harold

28 A protest against Joseph II’s language ordinance, H. Marczali, Magyarország törté- nete II. József korában (Gáspár, 1888), II, p. 394. 29 From the large literature, see E. Hantos, The Magna Carta of the English and of the Hungarian Constitution (London, 1904), p. 208 30 G. Concha, ‘Az angolos irány politikai irodalmunkban a mult század végen’ (hereafter: ‘Az angolos…’), in Hatvan év tudományos mozgalmai között (hereafter Hatvan év) (Budapest, 1928), I, pp. 216 fff; G. Concha, A kilencvenes évek reformeszméi (Budapest, 1885), pp. 191 fff; F. Eckhart,A jog- és államtudományi kar története 1667–1935 (Budapest, 1936), pp. 208–12. 162 chapter four

Steinacker or the Scotsman R.W. Seton-Watson, dismissed the claim of similarities either as superfĳicial or being anidée fĳixe of Hungarian nationalists.31 The critics invariably found their arguments from the other side of Montesquieu’s paradox, pointing out the dearth of provisions in the Hungarian laws to protect the political freedom of the subject.32 As everywhere else in Europe, Montesquieu’s reputation as a political thinker declined in late nineteenth-century Hungary. Nevertheless the paradox retained its relevance to the country’s political institutions even after 1848, since the parliamentary tradition (which involved the relationships of the legislative to the executive branches of government) and the autocratic principle of the law (which afffected the relationship of the executive to the judiciary) remained the two dominant features of the Hungarian constitution and, as has been argued, they coincided with the two sides of Montesquieu’s paradox. In 1848 the nobility forced through major reforms of the ancient constitution at the diet. Serfdom was abolished, legal equality declared and representative government introduced on the basis of franchise. The diet, transferred from Pressburg to Pest, became a modern parliament to which the government was to be legally responsible. The executive power, hitherto exercised by the Chancellery and the Gubernium, and no longer reservata33 had to be discharged by the monarch through the ‘independent Hungarian responsible ministry’.34 The law introduced ministerial counter-signature. The minister had to appear and answer questions in both Houses and the law provided that parliament could impeach ministers.35 Although in 1848 the settlement between the ‘Crown and the

31 On the Austrian pamphlets which attacked the Hungarian nobility in the 1790s see Concha, ‘Az angolos …’, pp. 183 fff. Metternich described the Hungarian constitution in 1809 as a ‘mixture of Tatar nomadic and feudal traditions’, S. Domanovszky, József nádor élete (Budapest.1944), Vol. l/2, p.493, n. 6; H. Steinacker, ‘Über Stand und Aufgaben der ungarischen Verfassungsgeschichte’ (1907), in Austro-Hungarica (Munich, 1963), p. 36, n. 147; and H. Steinacker, ‘Nachwort’, in ibid, p. 70. Not only foreigners but many Hungarian jurists also, including Győző Concha, rejected the kinship theory in the nineteenth century as lacking a proper basis, and the theory was abandoned in the 1930s. 32 Scotus Viator [R.W. Seton-Watson] in his Racial Problems in Hungary (London, 1908), rejected the idea of ‘resemblances’ between the English and the Hungarian institutions as superfĳicial. See his chapter on ‘Association and Assembly in Hungary’, p. 274. 33 Cziráky wrote: ‘Cancellariae … a solo Rege dependentia adserta fuit’, Conspectus, § 652. The same principle applied to the Council of Lieutenancy (the Gubernium), § 664. Indeed, the principle that the monarch’s person could not be ‘separated’ from the government was vigorously defended by the government and the Upper House (against the challenge by the Lower House) at the diet in 1835. On the principle, see ibid, Sections 657–58. 34 Title, Law III of 1848. 35 Ibid., Sections 3–6, 29–37. montesquieu’s paradox on freedom 163

Nation’ was unsuccessful, the 1867 Settlement, a pact reached between the two sides in accordance with the norms of the diaetalis tractatus,36 created the institutional basis for a liberal constitutional order, the so- called Dualist system, which survived for half a century. The reforms introduced increased rather than reduced the discrepancies in the political institutions created by the coexistence of the parliamentary tradition and the autocratic principle of the law. Parliament acquired more influence after 1867. Legislation increased enormously. The statutes established free-market conditions, defĳined modern property rights and guaranteed personal freedoms. The government became politically as well as legally responsible to parliament. But the government’s responsibility towards the monarch remained strong. Thus even in the twentieth century political responsibility was strictly dualistic. No government could survive without the confĳidence of both Francis Joseph and the House of Representatives.37 During his fĳirst administration Sándor Wekerle had enjoyed a solid majority, yet he resigned in December 1894 because, as he declared in the House, he had lost the confĳidence of the crown. But the House destroyed more governments than the monarch. The fĳirst was Count Menyhért Lónyay’s in 1872. Parliament could throw out a government but the opposition was not able to replace it. The new government came from the ‘government party’. Governments were appointed fĳirst; elections were held afterwards. Count István Tisza, a unique case in Central and Eastern Europe, lost a general election in 1905—an event which created a constitutional crisis from which the monarch emerged as the winner on points.38 All in all, after 1867 the government was constitutional and responsible, politically and legally, but it was not parliamentary in the sense in which parliamentary government was understood in Western Europe. The main reason for this was not the narrow franchise (which was a fact) but that the source of the government’s authority was not the electorate (or the elected parliament) but the crown and parliament jointly. The government’s political responsibility towards parliament consisted primarily in its constitutional duty to maintain unimpaired Hungary’s rights and interests in relationship to the monarch and Austria, and

36 Péter, ‘The 1867 Constitutional Settlement’, pp. 232f, 240f below. 37 On the government’s political responsibility after 1867, see L. Péter ‘The Aristocracy, the Gentry and their Parliamentary Tradition in Nineteenth Century Hungary’, pp. 314–16 and 337–39 below. 38 For a concise summary, see C.A. Macartney, The Habsburg Empire 1790–1918 (London, 1968), pp. 762–63; Péter Hának, in MT, VII, pp. 599 fff. 164 chapter four thereby preserve the constitutional balance between the Nation and the Crown. Nevertheless, the Hungarian parliament had probably more influence on the government than parliaments had anywhere else in Central and Eastern Europe before 1918. To mention a single example, the Hungarian parliament was able to obstruct the implementation of the army expansion plans, said to be vital for the maintenance of the Monarchy’s great- power status, by refusing to pass two army bills, between 1902 and 1912. Arguably, neither the Reichstag in Vienna nor the Reichstag in Berlin wielded so much influence. This influence was, however, exerted at the expense of the majority principle rather than for its enforcement. The vigorous resistance which Hungarian parliamentarians mustered against the Austrian military in the ‘defence’ of the constitutional balance between crown and Parliament had been spearheaded by minority obstruction in the House, which eventually destroyed the government majority.39 After the collapse of the Habsburg Monarchy the Hungarian parliament lost its constitutional function as the defender of Hungarian interests. The House of Representatives was no longer the repository of ‘national rights’ in relationship to the Regent, the government and the military. The influence of parliament diminished. But it could still throw out governments and it ensured the survival of constitutional forms even during the Second World War, until October 1944, when elsewhere in the region the military had taken over. The autocratic principle of the law also remained a central feature of the Hungarian constitution after 1867.40 The courts became independent41

39 Obstruction, which has always been an essential part of the Hungarian constitution, was justifĳied by its promoters in parliament after Kálmán Tisza, Minister President from 1875 to 1890, had established ‘the system, by arguing that the electoral corruption had been practised by the government on such a large scale that it ‘falsifĳied the national will’. On the Tisza system, see Zoltán Szász,in MT, pp. 1211 fff. 40 Section 19, Law IV of 1869, On the Exercise of Judicial Power, ordained that judges had to proceed on the basis of statute law, ordinance, ‘based on statute law’ (törvény alapján keletkezett), and lawful custom. The judge, before application, had to establish whether or not the ordinance was lawful. In Hungarian judicial practice the courts invariably applied the rendelet (ministerial ordinance) whenever in their view it did not conflict with törvény (statute law). The Central Committee of the House replaced the ministerial draft with the requirement that the rendelet was ‘issued on the basis of specifĳic authorisation by the legislature’. The House, however, restored the ministerial draft. Képviselőházi irományok (1869–72), Vol. 1, pp. 59, 122, 125, 241 and Képviselőházi napló (1869–72), Vol. II, pp. 486–91. On the question of presumptio juris, see Grosschmid, Magánjogi előadások, pp. 162–73, passim. 41 The judges were left under the supervision of the Minister of Justice (Section 5, Law VIII of 1871), hut they could be removed from their post only by a procedure defĳined by statute law (Section 15, Law IV of 1869). montesquieu’s paradox on freedom 165 and they protected personal freedoms, property rights and private contracts. The press was, at least in the capital, more or less free.42 The established Churches were autonomous and there were independent associations. A great deal was accomplished from what Montesquieu had considered to be essential in order to protect the freedom of the subject. But the institutions of the Rechtsstaat were only partly established. Montesquieu did not, of course, know about the Rechtsstaat. Nor did he need it. The point here is that where, as in Hungary, the presumption of the law is on the side of the state authorities rather than on that of the citizen, it is not possible to secure the freedom of the subject in Montesquieu’s sense without the guarantees offfered by what was later called the Rechtsstaat in Central Europe.43 In Hungary governments, stout defenders of the autocratic presumption of the law, claimed that the State possessed the ‘right of supervision’. There was no statutory basis for the claim. Also, they argued, more realistically, that custom was on their side. Although they repeatedly promised legislation, especially before 1875,44 the bills were never introduced. The law did not defĳine the basic rights of the citizen. Instead of statute law, ministerial ordinances and orders issued by local authorities motu et potestate proprio at their discretion governed wide spheres of social life that interfered with the individuals’ and social groups’ liberties. The right of association45 and of assembly, the right to strike and, to a large extent,

42 The freedom of the press was protected by the liberal Law XVIII of 1848. But the government established supervision over the press by ordinances after 1867. The newspapers of the nationalities were harassed by the authorities, see M.T. Révész, A sajtószabadság érvényesülése Magyarországon 1867–1875 (Budapest, 1986), esp. pp. 204 fff., 220–27. 43 The Hungarian jurists, like many a politician of the Liberal era after 1867, championed the principles of the Rechtsstaat and detested the autocratic principle which, however, with even Béni Grosschmid, cf. note 40 above). The fĳirst section of the Penal Law (V of 1878) established the principle of nulla poena sine lege, yet the citizen’s rights of assembly, of association, of industrial strike, among many other matters, were regulated by ministerial rendelet rather than by statute law. Moreover, the law on offfences kihágások( ), Law XL of 1879, created a statutory framework within which government ministers could establish by rendelet new offfences so far as they were not in conflict with statute law; the same principle also applied to local government (Sections 1 and 7, Law XL of 1879). 44 Francis Joseph in his Gracious Speech, with which he opened the fĳirst parliament after the 1867 Settlement had been concluded, urged his Hungarian government to guarantee, as in Austria, the basic constitutional rights of assembly and of association and to set limits to the government’s supervisory powers, Képv. irom. (1869), I, pp. 1–3. 45 In the Dualist era Count Gyula Szapáry, as Interior Minister, began to standardize the licensing of associations by ordinance in 1873. The ministerial control was codifĳied by his successor, Kálmán Tisza (who combined the portfolio with the premiership for eleven years). Associations with purposes deemed ‘not objectionable’ (kifogás alá nem eső) could start functioning on a temporary basis forty days after application. As a blanket rule 166 chapter four even Church-State relations,46 notwithstanding the wide autonomy of the ‘received’ Churches, were left under administrative tutelage.47 In these and many other matters disputes were settled by ministry and local offfĳi- cials rather than by independent courts. The authorities frequently acted in a tolerant and sometimes even in a liberal manner, but they could also be brutal. Although in the rather tolerant Dualist era incidents of gross human rights violations were rare, the point is that the subject could be, to quote Montesquieu once more, ‘compelled to do things to which the law does not oblige him’ and ‘forced to abstain from things which the law permits’. Furthermore, the autocratic presumption of the law, which starts from the right of the state rather than from that of the citizen, allows the government (which is not hindered by another power!) to expand its regulations which interfere with the citizen where he is not protected by statute law. Indeed, administrative regulation praeter legem grew fast in the late nineteenth century.48 Its expansion, Montesquieu would have observed, was not checked by some other power. Győző Concha, a leading law professor in Budapest, complained as early as in the 1880s that ‘nowhere else would one fĳind the concentration of power that our government possesses’.49 Yet the authorities’ administrative power in the nineteenth century was only a dwarf compared with the giant it became during and after the First World War. If we consider the two dominant features, the parliamentary tradition and the autocratic principle, of Hungary’s nineteenth-century ‘modernised’ constitution we might again suggest that in Montesquieu’s terms it was free while the citizen was not. Again, when we examine the

political associations and trades unions were not allowed to have branches. Associations with ‘mixed objectives’ were not to be licensed. The County authorities were requested to seek out associations which were ‘engaged in unlawful and anti-State activities’, see S. Dárday, Közigazgatási törvénytár (Budapest, 1893),III, pp. 123 fff. 46 L. Péter, ‘Hungarian Liberals and Church-State Relations, 1867–1900’, in Hungary and European Civilisation, ed. G. Ránki (Budapest, 1989), pp. 99–102, 114–20. 47 The administrative court, the linchpin of the Rechtsstaat institutions, was set up in Hungary only in 1896 (Law XXVI). It was a sham rather than proper reform and neither individuals nor groups had access on civil rights issues to the court because its scope was defĳined so narrowly. 48 G. Concha, ‘A törvényhozás által adott felhatalmazás alapján kibocsátott minisztéri rendeletét szabad-e újabb felhatalmazás nelküI rendeleti úton megváltoztatni?’, in Hatvan év, I, pp. 400 f., 405, passim; A. Balogh, Politikai jegyzete (Budapest, 1905), p. 306; K. Molnár, Kormányrendeletek (Eger, 1911), esp. Ch.5. 49 Concha in 1882, Hatvan év, I, p. 417. montesquieu’s paradox on freedom 167 arguments advanced in the early twentieth century by the critics and the defenders of the constitution we fĳind that they largely selected their arguments from only one side of Montesquieu’s paradox.50

The Communists

The Communists once in power in Hungary, as elsewhere, rejected the principle of the division of power; Montesquieu’s discovery was declared to be ‘a piece of bourgeois ideology.51 ‘Democratic centralism’ was the basic principle of the single-party state which believed in undivided political power. Montesquieu’s paradox was no longer relevant. It had applied only to what he had termed moderate government. Where there was no division of powers, neither the subject nor the Constitution was free and the government was per defĳinitionem despotic. The philosophe would have been sceptical about the prospects of a despotic system, imposed from the outside, on the countries of East-Central Europe, which were endowed with diffferent political traditions. The Communist government systematically destroyed much that had been established by nineteenth-century liberals as institutions of civil society. It confĳiscated private property, instituted the state ownership of tile economy, obliterated the market and monopolised employment. In the early 1950s the government trampled most elementary personal rights. As an after-efffect of the 1956 revolution the government in the 1960s began to tolerate elementary forms of personal liberty. It still insisted, however, on the principle of the unity of political power. It did not tolerate the existence of independent social organizations. There was neither a free press nor were there independent associations nor even autonomous Churches. For forty years the Communists governed the country through party instructions and ordinances issued by the Presidential Council and

50 See notes 31 and 32, above. 51 E.g. O. Bihari, A szocialista államszervezet alkotmányos modelljei (Budapest, 1969), pp. 487 fff.; Mihály Samu, A hatalom és az állam (Budapest, 1977), pp. 186–7; The Állam és jogtudományi enciklopédia (Budapest, 1980), I, p. 100, briefly mentions the ‘separation of powers’ only to reject it. But the Spirit of the Laws was again translated into Hungarian A törvények szelleméről in two volumes, published in Budapest in 1962. 168 chapter four by the ministries. Parliament, into which, according to the 1949 and 1972 revised Constitution,52 sovereignty was vested, became an empty shell, a rubber-stamp Parliament with mock elections and mock procedures. Parliamentary sessions were reduced to two-day sittings. Parliament’s legislative role was largely taken over by the Presidential Council, which passed ordinances without debate. Sometimes the Council was not even called together and its members consented to enactments on the tele- phone (körtelefon).53 Although the regime became more tolerant in the 1980s, the parliament’s political weight was reduced even further. In the fĳirst four years of Communist rule between 1949 and 1953 parliament sat on sixty days and passed thirty-four laws. In the closing years of the system, between 1980 and 1985, in a period of fĳive years, parliament sat only on thirty-two days and passed altogether twenty-two laws (nemo contradictione (so to say)).54 Questions in parliament were rare and strictly under the control of the government. It is notable that the conventions were stifffer in the fĳirst half of the 1980s than before.55 Whatever independence the judges possessed, they lost in 1948.

After Communism

Montesquieu’s constitutional ideas bounced back to become a potent force once more when, in the mid-1980s, the Communist system ran into a crisis which turned out to be terminal. The government, facing economic bankruptcy, began to reform the state machinery. Instead of recovery, it collapsed under the weight of Gorbachev’s policies and the pressure of the Opposition which the crisis had generated, in the autumn of 1989. The collapse would not have surprised Montesquieu. The reform Communists turned out to be grave-diggers of the whole system; they forgot that a despotic system could not survive without fear—its principe.

52 Law I of 1946, On the Form of the State, declared Hungary a Republic and in nineteen paragraphs regulated the position of the President. Law XX of 1949 was the country’s fĳirst written Constitution (one may disregard the short-lived manifesto issued after the collapse of the Habsburg Monarchy in 1918). 53 G. Baló and I. Lipovecz, Tények könyve ‘89 (Budapest, 1988), p. 743. 54 Ibid, p. 744. For a proper account of parliament’s reduced role in legislation, see Z. Kerekes ‘Válaszúton az országgyűlés’, Medvetánc (1987), nos. 3–4, pp. 1 15–36 (statistics on pp. 117 and 125). 55 Ibid., pp. 117, 125–27. On the procedural changes, see I. Kukorelli, Az országgyűl- ésiképviselők jogállása (Budapest, 1989), pp. 190–98. Zoltán Király describes his personal experiences in M. Bihari et al., Kizárt a párt (Budapest, 1988), pp. 186–89 (the montesquieu’s paradox on freedom 169

Historians frequently label 1848 in Hungary as a ‘lawful revolution’; likewise, it has been said of 1989 that it was the year of Hungary’s ‘negotiated revolution’.56 These labels simply play with words; it is not my task, however, to examine the political transformation itself. Transformation it has undoubtedly been. The Communist political system has been supplanted by another, although the change-over has been continuous. There was no institutional discontinuity.57 ‘The transformation began in earnest when Minister President Miklós Németh declared in parliament that ‘the party-state has come to a dead end’.58 But the authority of the Nemeth government remained efffective to the very end of its tenure. In fact the government carried out a legislative programme which dismantled the system by agreement between the Com- munists and their opponents, who at that stage were practically without parliamentary representation. After the election in the spring of 1990 power was transferred in a most orderly fashion to the new majority.59 Paradoxically, of all the people’s democracies, it was in Hungary that mass demonstrations and violent disruptions were least important in efffecting

President of Parliament repeatedly violated the Standing Orders in suppressing an ‘interpellation’). 56 ‘tárgyalásos forradalom’. e.g. L. Bruszt, in Magyarország politikai évkönyve, ed. S. Kurtán et al (Budapest, 1990) (hereafter Magyarorsz. évk.), p. 160. 57 For an analysis of the transformation see R.L. Tőkés, ‘Hungary’s New Political Elites: Adaptation and Change, 1989–90’, Problems of Communism (November–December 1990). pp. 44–65 and his shorter piece in Valóság (1990), no. 12, pp. 1–13. 58 On 9 March 1989, see report in the Magyar Nemzet the following day. 59 The election campaign was fought with acrimony and venom between the supporters of the Hungarian Democratic Forum and the Alliance of Free Democrats. The matu- rity of the electorate and the parties was put to the test by the circumstance that a pogrom that took place in Tîrgu Mureş (Romania) at the height of the electoral campaign did not lead to nationalistic hysteria in Hungary. Of the sixty-six registered political parties (see J. Kiss in Magyarorsz. évk. (1991), pp. 519–31), six attained seats in the parliamentary elections, held under a moderately proportional electoral system, in March and April. The largest party, the Hungarian Democratic Forum with 164 seats, was followed by the Alliance of Free Democrats with 92, the Independent Smallholders with 44, the Hungarian Socialist Party with 33, the Alliance of Young Democrats with 22 and the Christian Democratic party with 21 seats. There were also a few independent deputies elected to the 386-member parliament. The turnout, sixty-fĳive percent in the fĳirst round, slipped down to forty-fĳive per cent in the run-offf. The Forum in coalition with the Smallholders and the Christian Democrats formed a government based on a comfortable majority. Election results and analysis: Z. Kerekes in ibid, pp.438–41; J. Kiss, ibid, pp. 537–79; L Bruszt and I Simon, ibid, pp. 607 fff. A Körösényi, ‘Hungary’, Electoral Studies (1990), pp. 337–45; A. Körösényi, ‘Revival of the Past or New Beginning?’, The Political Quarterly (January–March 1991), pp. 52–74 (on the Populist-Urbanist divide). 170 chapter four changes.60 Yet only in Hungary could the opponents of the Communist regime form a government without going into coalition with some Communists or former Communists.61 Indeed, since the formation of the Antall government, in May 1990, no politician with a Communist past has held a Cabinet post in Hungary—uniquely among the former Soviet satellites. The personnel of the ministries is, of course, still largely the old one. Radical though the transformation of the political institutions in eastern Europe may have been, the changes have not produced anywhere a ‘new’ political system. The former people’s democracies have returned to, or hope soon to return to, political institutions which they once possessed or aspired to. There is a singular absence of new ideas in today’s eastern Europe, even though political life has been flooded by professors and intellectuals as never before anywhere. The new leaders and their followers want everywhere to return to old, well-tried European methods and ideas.62 The political spectrum has been fĳilled with traditional beliefs, like the national principle, Populism, Christian democracy, civil society, social justice (through the redistribution of wealth by the State), market liberalism, Social Democracy. In this intellectual climate, what Montesquieu established two hundred and forty years ago about the division of powers seemed, quite plausibly, the best remedy against the monopoly of Communist one-party rule.63 Montesquieu’s ideas cropped up in Hungary’s

60 There were minor incidents involving students in the 1980s. The police habitually broke up demonstrations, on 15 March in the capital and elsewhere. There were no clashes at all, however, in 1989. The two mass demonstrations in that year were very orderly, happy afffairs which registered rather than initiated political change. 15 March was celebrated all over the country, in Budapest by about 80,000 people on the streets. The reburial of Imre Nagy on 16 June attracted around 250,000 participants. Both events were amply reported in the British press. In Hungary conferences on campsites, organised by intellectuals, like the ones at Monor and at Lakitelek, and negotiated pacts were the vehicles of change rather than mass movements. 61 Cf. Minister President Antall’s statement, reported in Magyar Nemzet (3 September 1990). 62 Timothy Garton Ash, summing up his book, observed that the revolutions of ‘89 sought ‘old truths and tested models’. ‘The ideas whose time has come are old, familiar, well-tested ones.’ T.G. Ash, We the People (Cambridge, 1990), pp. 156, 154; and see the debate on the point between him, Anthony Barnett and Neal Ascherson, esp. The Independent (26 April 1990), and The Independent on Sunday (29 April 1990). 63 Even in the Soviet Union, where institutional change was in the late 1980s slower than in some of the former satellites, Gorbachev claimed that Lenin had sought ‘a division of legislative, executive and political powers’, R. Service in The Times (18 March 1990). Catherine the Great, an early admirer of Montesquieu’s Spirit of the Laws, rejected the separation of powers principle. montesquieu’s paradox on freedom 171 samizdat opposition literature;64 they were regularly exploited by the reform Communists. Professor Géza Kilényi, chairman of the government commission on political reforms, recommended, by reference to the ‘much maligned’ French philosophe, that the main branches of the state ‘ought to be able to check each other’s power’ rather than merely providing a ‘division of labour’.65 The political transformation began with the reform of parliament in September 1987. After thirty-one years, parliament was called without the government setting a time limit to its session. In Law Xl of 1987 parliament carried out the fĳirst of many revisions of the Constitution. The remit of the Presidential Council, within which it could issue ordinances, was restricted.66 In the autumn session alone parliament passed twelve laws. In the course of 1988 parliament’s political power increased; debate became freer. The decisive change came in 1989 when parliament laid down in a statute the procedural rules concerning the motion of the so-called constructive no confĳidence in the government.67 The Németh government became politically responsible to parliament. The government’s dependence on the Communist Party centre grew weaker and then ceased. 1989 turned out to be a year of landslide. After a long drawn-out internal crisis created by the Imre Pozsgay-led reform Communists, the Party abandoned its claim to a ‘leading role’ and was prepared to compete for political power on equal terms with the opponents of the Communist

64 Although István Bibó, the intellectual guru of the Opposition, had held his 1947 inaugural lecture on the doctrine of the separation of powers in the Hungarian Academy (Összegyűjtött munkái, ed. I. Kemény and M. Sárközi (Bern, 1982), Vol. II, pp. 541–59), the political ideal of the samizdat intellectual was pluralistic democracy. But the separation of powers turned up in the ‘Társadalmi szerződés’ (Social Contract), published in the Beszélő in 1987, István Kemény, in Magyar Füzetek, Vol. XVIII (Paris, 1987), p. 118, and Vol. XIX/XX (1988), pp. 65–66. 65 In A1kotmány és alkotmányosság, ed. I. Kovács (Budapest, 1989), pp. 100–1; also P. Schmidt in Valóság (1990), no. 5 p. 3; K. Kulcsár in Human Rights in Today’s Hungary, ed. M.K. Soltész (Budapest 1990), pp. 16–22; A. Réz, A törvényesség és a közigazgatás (Budapest 1990). pp 11–12. 66 Baló and Lipovecz Tények könyve ‘89. p. 745. 67 The statutory provision for the vote of constructive no confĳidence (pozitiv bizalmat- lansági inditvány) which became Section 39A (1) of the Constitution, was adopted from Germany, where the Bundestag could vote the Chancellor out of offfĳice in mid-term only by simultaneously voting in another (this was how Kohl replaced Schmidt as Chancellor, the single; application of the rule); and see István Kukorelli’s report (11 March 1989) reprinted in his A jogállamért (Budapest, 1989), pp. 108–11. 172 chapter four system.68 Formally, the new laws revised the Constitution but in fact on 23 October the country received a new Constitution which declared Hungary to be a ‘republic’ and an ‘independent democratic Rechtsstaat’69 in which the principle of the division of the powers was to be realised concerning all three branches of state power.70 Parliament was no longer the sole repository of sovereign state power. Rules regulated the relationship of the legislature to the executive. The courts were declared to be independent of the government. The President replaced the Presidential Council, which was abolished. The authority of parliament, which passed fĳifty-eight laws in 1989, was restored.71 In the second half of the year the political opposition to the regime, which had meanwhile split into diffferent parties, played a crucial role in the preparation of legislation. Much has been made of the conflicts among the political parties by commentators in and outside Hungary. In fact, however, the parties co-operated. The Oppositional Round Table Conference worked out the political reform proposals on the basis of common consent in the summer of 1989. Without this the Opposition could not have compelled the government to accept the more radical reforms at every stage in the negotiations.72 The constitutional revision

68 The reform Communists accepted the ‘multi-party system’. However, as the principle meant diffferent things to diffferent people they had to shift their position more than once to reach an agreement with the Opposition. First they were prepared only to include some non-Communists in government. Later they accepted the idea of a coalition between themselves and the Opposition as equal partners. Agreement became politically possible only when the Pozsgay group accepted the principle of free competition for power. That w as enough for the Opposition and it reassured the Communists that they were to be given a fair chance with the electorate. Professor György Szabad, chief negotiator for the Forum in 1989, made these points in his lecture at SSEES on 25 March 1991; see also Béla Faragó’s comment in Valóság (1991), no. 3 pp. 1–2. 69 Law XXXI, Sections 1 and 2 (1). Section 2 also refers to the values of ‘bourgeois (or civil, polgári) democracy and democratic socialism’, a passage deleted at the next revision implemented after the general elections. Today only one or two lines of the original text of the 1949 Constitution have been left unaltered. 70 Parliament, elected for four years, was to elect the President for four years (a revision in the following year changed it to fĳive years). With proper regard to the separation of powers principle, in chapters II, III and VII, the rights of the legislature, the President and those of the government were set out, see G. Jutasi in Magyarorsz. évk. (1990), pp. 364–68. 71 I. Kukorelli, in Magvarorsz. évk. (1990), p. 196. 72 The ‘triangular negotiations’ among the Communist party delegates (all members of the government), the social organizations (still under Communist control) and the leaders of the Opposition groups took place between 13 June and 18 September 1989. See note 68 above and Baló and Lipovecz, Tények könyve ‘90, pp. 693–94; K. Vigh in Magyarorsz. évk (1990), pp. 231–36; ibid (1991), pp. 426–27, the text of the agreement. Kálmán Kulcsár insists that the government was excluded from these negotiations, Valóság (1991), no. 8, p.10. montesquieu’s paradox on freedom 173 passed by parliament in October was based on a ‘pact’ among the (extra- parliamentary) parties.73 Then a sharp conflict flared up between the two large opposition parties, Forum and the Free Democrats, over the election of the Republic’s fĳirst President.74 Since then the two parties have been at loggerheads.75 Nevertheless, the formation of the Antall government after the free parliamentary elections, in May 1990 was again based on pacts among the partners of the government coalition, as well as between the government and the leading opposition party, the Free Democrats (SzDSz). The constitutional revision carried out in July 1990 was once more based on an inter-party agreement.76 The rule that requires a two- thirds majority for constitutional revision undoubtedly helped to bring about these pacts.77 But there is more to it than that. An old tradition has come to life again. Legislation was based on party pacts in 1945—as well

73 ‘We failed to notice that consensus has broken out’ (ránk tört az egyetértés), observed Csaba Gombár in the autumn of 1989, Magyarorsz évk. (1990), pp. 36–7. 74 A party pact was the basis of Law XXXV of 1989, which laid down the procedures for the election of the fĳirst President by direct election rather than by parliament. The Law was never applied because, in the referendum initiated by the Free Democrats, the electorate decided on 26 November, by a wafer-thin majority, to postpone the election of the President after the parliamentary elections, ibid (1990), p. 375. On this issue sharp conflict developed between the Forum and the Free Democrats. The President was, after the general elections, appointed by parliament. However the choice was once more based on a party pact (Magyar Nemzet (26 June 1990)). The November referendum on the presidency precipitated the dissolution of the Workers’ Guards, the imposition of the ban on workplace party cells, as well as the return of the party property and assets to the state, measures which the Németh government had introduced in great haste immediately before the referendum was held (these issues were all included in the referendum). See E. Babus in Magyarorsz. évk (1990), pp. 209–13 and pp. 213–14 on the results of the referendum. On the fate of the party property see E. Babus, in ibid (1991), pp. 156–86, incl. documents. 75 Even some of the seasoned participants have been dismayed by the personal animus and aggravation which party politics have thrown up. (It probably takes time to accept that democracy is the form of government in which hatred is systematically organised) The ‘nationalist’ intelligentsia with strong provincial roots leading the Centre-Right which is now in government, and the Free Democrats, led by ‘cosmopolitan’ Budapest intellectuals (the labels are the opponents’) which provide the main opposition, are poles apart. The roots of this conflict between the mostly Jewish ‘Urbanists’ and the ‘Populists’ go back to the early years of the century. See statements on the conflict in Századvég (1990). no. 2, pp. 141–307. 76 Legislation on the so-called ‘fundamental’ (sarkalatos) laws, which required two- thirds majority, like the law on local government, could be and was put through the new parliament at great speed only because of ‘agreements’ (megállapodások, or perjora- tively, paktumok) among the parties, cf. Magyar Nemzet (1 August 1990) p. 5 (8 August 1990). 77 From 1949 the Constitution required a two-thirds parliamentary majority for its revision. A pact between the Forum and the Free Democrats (2 May 1990) made it possible for 174 chapter four as in the 1920s. Ferencz Deák’s politics in the 1860s was based on pacts and his political habits had been shaped by the procedures of the ancient constitution’s diaetalis tractatus.78 There is, as there has always been in the past, a deeply ingrained aversion to the enforcement of the majority principle in Hungary. What is new today is that for the fĳirst time the negotiated pacts generated a constitution which has acquired the support of most of the articulate, organised political forces in the country, including even the majority of the former Communists.79 The past was very diffferent. In the conditions of the ancient constitution the diaetalis tractatus between the crown and the ország could never bridge the conflicting views on the distribution of rights and duties between the two parties. The April Laws of 1848 were flawed by conflicting interpretations of fundamentals and the 1867 Settlement created a constitutional opposition from the start. The dictum, repeated by the defenders of the Settlement, that Francis Joseph was the ‘most constitutional’ monarch had a defensive ring about it. The collapse in 1918–19 did not produce viable political institutions and the restoration in 1920 created only a constitutional próvizorium.80 The new political order, established in 1945 on false premises, was undermined by the Communists. The 1949 Constitution was a sham. In October 1956 consensus emerged for a liberal democratic constitution, only to be destroyed by Soviet intervention, and Kádár, though at times popular with the new middle classes, could never create a political order based on consent at any one time during his thirty-two years’ dictatorship.81 People, wont to say that Kádár could easily have won even in a free election, were looking through the wrong end of the telescope.

parliament to prune the list in order to avoid a stalemate between the executive and the legislative powers, see report by I. Karacs, The Independent, 2 May 1990; the text of the pact: Magyar évk. (1991), pp. 428–29. 78 See above, pp. 81–82. 79 Many small local groups, registered as ‘parties’ (well over sixty, cf. note 59, above) and rejected by the electorate at the general election, were right-wing conservative and left-wing socialist, which may not all have accepted the Constitution. 80 For the balance-sheet of the provizórium, see Kálmán Molnár, A két világhaború közötti provizórium közjogi mérlege (Pécs, 1945) (an outright condemnation by a leading jurist of the ancien régime). 81 Kadar’s principle, announced in December 1961. that ‘he who is not against us is with jus’ implies tolerance, not political consent. On the policy and the slogan see Vonessa montesquieu’s paradox on freedom 175

The Jeremiahs and the professional pessimists about the prospects of the recent transformation should bear in mind that for the fĳirst time, in 1989–90, in propitious international circumstances and through a series of pacts, referenda and elections, a constitutional order has been born which has attained the consent of all, even including most of the former Communists. The right-of-centre parties won the general elections, held in the Spring of 1990, and were able to form a coalition government in May. The ruling parties and the centre-left parties,82 which provide the opposition, heartily dislike each other but, uniquely in Hungary, there is today no constitutional opposition. Only a myopic view of Hungarian politics, which ignores the long historical trends, would question Hungary’s fĳirm commitment to its parliamentary institutions. The past may be a poor guide to the future, nevertheless it is better than none at all. There are no solid reasons to doubt that, as in the past, parliament will be the centre of political life in the future. The country has in hand a legally valid, enforceable constitution which is generally accepted but which, nevertheless, is considered politically as temporary. Formally the Constitution is still Law XX of 1949 (the Communist Constitution), several times and radically revised. Although the changes have been so substantial that only a few passages of the original have been left unaltered, there is an understandable keenness among political leaders to endow the new democratic regime with its own constitution. The Preamble (from 23 October 1989) enacts the present law ‘until the enactment of the country’s new constitution’. Minister President Antall, on taking offfĳice, listed among the tasks of the government and the parliament the drafting of a new constitution. In a lecture in the School of Slavonic and East European Studies, University of London, the Speaker of Parliament, György Szabad, predicted that in 1993 a new constitution would be introduced.83

Bouhall, The Suppression of the Hungarian Revolution of 1956 and the Making of Kádár ‘s Alliance Policy (MA Diss., SSEES, University of London, 1991). pp. 33–34. 82 The Right-Left division has clearly emerged in Hungarian politics on moral issues and in ‘ideological’ subjects like the national question, the position of the Churches and birth control. The division is inadequate on economic policy (a key issue) where the Left—the Free Democrats—is Thatcherite (i.e. wants to privatise faster than the centre- right government coalition). 83 In his SSEES lecture, cf. note 68, above. Gábor Halmai produced strong legal arguments in favour of a new constitution, ‘Alkotmány és alkotmánybiráskodás’ in Magyarorsz évk. (1991), pp. 149–55. 176 chapter four

It is indeed not inconceivable that in the near future a new constitution will supplant the present one, although this is not very likely (unless the new document rearranges rather than substantially changes the provisions). Parliament’s timetable is overcrowded (during the fĳirst ten months of its existence the legislature passed well over a hundred laws and resolutions).84 Because of the two-thirds majority required for constitutional change, the proposed draft would have to attain substantial opposition support at a round table inter-party conference, which may not be easily secured. Politics are likely to be saddled with so many urgent tasks in the next few years that, when politically necessary, ad hoc revisions are more likely to be carried out than root and branch change. After all, most of what legal provisions can do to secure a ‘free constitution’ has already been done. If one looks at the other side of Montesquieu’s paradox (traditionally the vulnerable side of Hungary’s political institutions),85 the achievements have so far been modest. Simultaneously with the restoration of parliament’s authority some basic institutions of the Rechtsstaat were established. The aim was to protect the ‘freedom of the subject’ by statutory provisions, enforceable in law courts and guaranteed by the two-thirds rule and, correspondingly, by the reduction of the discretionary powers of the government and its agents.86 Much today is still not in place. No law as yet protects the freedom of the press and broadcasting.87 The police do not operate under statute law. Nevertheless, for the fĳirst time in its history, judicially enforceable, parliament-made statutes protect the citizen’s

84 György Szabad’s statement, cf. note 68, above, and Magyar Nemzet, (2 May 1991). 85 The reform Communist Kálmán Kulcsár, Minister of Justice, observed that the civil rights provisions of the country’s constitution had always been pitiable (szegényes), Valóság (1989). no. 4. p. 1. 86 The decisive moves towards a system based on the rule of law were made in 1989. The key offfĳicial in the drafting of the bills under the Németh government understood by the Rechtsstaat a system in which (a) the Constitution, as the highest source of law, contained the most important rules concerning the rights and duties of the citizens and the use of state power; (b) statute laws dominated over the enactments of the executive; (c) the discretionary power of the executive branch was substantially reduced; and (d) the courts played the central role in providing constitutional guarantees. Géza Kilényi, ‘A jogál- lamiság felé’, in Baló and Lipovecz, Tenyék könyve ‘90, pp. 79–83. 87 The government promised legislation to be introduced in the autumn session of parliament in 1991 montesquieu’s paradox on freedom 177 rights of, for example, association,88 assembly,89 strike,90 travel or emigra- tion. Most of these already amended laws need more detailed procedural provisions to secure the more efffective protection of individuals and groups. The Penal Law, radically revised, decriminalised political activity. A separate law was passed on political parties and another one on the system of parliamentary elections.91 Church-state relations have been regulated by a statute law, which declares liberty of conscience and the equality of religions, based on yet another paktum between two parties.92 These reforms substantially widened the scope of the judiciary. The courts acquired competence to deal with conflicts between the individual or the group on the one hand, and the state authorities on the other. Even decisions by the (executive) authorities which afffect the individual’s right to a passport, to emigrate or to immigrate can be challenged in the courts. The Law introduced a new institution by the creation of the Parliamentary Commissioner on Civil Rights (Ombudsman).93 The reforms to safeguard the Constitution by the strengthening of the judicial branch of the State have been completed by the establishment of the Constitutional Court. Another product of the negotiations between the government and the Opposition, Law XXXII of 1989 (based on Law I of 1989 which had amended the Constitution), created, in place of the Constitutional Council,94 the Constitutional Court. The ministerial motivation of the Bill stated that the purpose of the institution was to ‘ensure the mutual balance and control among the branches of state power’.95 However, it went on, because of its limitations of competence the Constitutional Court ‘will not impair the supremacy of parliament’ and

88 Law II of 1989 (passed in January after many redraftings). 89 Law III of 1989. 90 Law VII of 1989, passed in March. 91 Laws XXXIII and XXXIV of 1989 (in late October, part of the pact with the Opposition). 92 Law IV 1990, passed in January in agreement with Church leaders; the political background is discussed by John Eibner in Vallásszabadság szovjet módra, to be published in Budapest. 93 Section 32 (B). Law XXXI of 1989. Elected by the House on the nomination of the President, the Commissioner will investigate citizens’ complaints of bureaucratic incom- petence and injustice, report to Parliament annually and recommend the adoption of general measures. 94 A sham reform introduced in 1984. 95 Magyar Közlöny, (30 October 1989), p. 1289. 178 chapter four would act as ‘the tip of the scales’96 among the branches of state powers. The qualifĳications may obscure rather than clarify the purpose. Nevertheless, the law itself was clear: it endowed the Constitutional Court, as the fĳinal authority, with the task of deciding whether a statute law (before or after its promulgation) as well as other legal enactments were, or were not, in conflict with the Constitution.97 Today the legal-institutional conditions that are necessary for the separation of the three branches of state power in Hungary are in place. One has to ask whether the three branches will in fact separate from each other. Critics of the new Constitution point out that because of deeply- held suspicion towards the executive power the revised Constitution con- centrates too much power in parliament.98 The responsibilities of the President, elected by parliament rather than by the people, are too narrow. The formal powers of parliament are indeed too wide and there are people who believe that ‘parliamentary government’ ought to mean just that.99 But the weight this view may carry must not be exaggerated. Political rhetoric should be distinguished from institutional realities. The system today is transitory. Parliament has not yet become an efffective counterweight to the executive. The government is still the owner of the bulk of the country’s property; it is in charge of something like ninety percent of the economy and also of most of the social institutions.100

96 Mérleg nyelve, ibid, pp. 1289–90. 97 Section I (a) to (h) of the law lists the areas in which the Court is competent and chs. III and IV lay down sufffĳiciently detailed procedural rules. Short accounts: 1. Kukorelli, A jogállamért (Budapest, 1989), pp. 106–68: Magyarorsz. évk. (1990), pp. 368–69; G Halmai, in ibid (1991). pp. 149–55 on the functioning of the Court in the fĳirst year. 98 G. Jutasi in Magyarorsz. évk. (1990). p. 366, a concise summary. Peter Schmidt argued that in 1989 the parties had proclaimed the separation of powers principle but their fear of the executive branch was so strong that the separation was not carried through the revised Constitution. P Schmidt, ‘A hatalommegosztás és a köztársasági elnök jogállása’, Valóság (1990), no. 5. esp. pp. 3 and 6; also K. Kulcsár, Valóság (1991), no. 8, pp. 10–11. 99 Critics of the new regime sometimes argue that only the ‘élite’, the personnel of the government, changed in 1990 rather than the system. Also, the ‘party pacts’ are decried as undemocratic. The lack of direct democracy is lamented by György Szakolczay, ‘A paktum, a politika és a nép’. Magyar Nemzet (8 July 1991). Montesquieu begs to difffer: his comments on the corruption of democracy are instructive even today, see Montesquieu, Book VIII, ch. 2. 100 The government ‘within the sphere of its own authority’ regulated prices (Imre Kónya, Magyar Nemzet (1 August 1990), p. 5), reorganised the election of Enterprise Councils (András Sereg, Népszabadság (22 August 1990), p. 3), confĳiscated guns held by the montesquieu’s paradox on freedom 179

Today liberal democrats try to run the Communist command economy. Notwithstanding the constitutional reforms, the presumption of the law has not been shifted to the side of the citizen.101 The government can still issue ordinances lawfully in the economy and in many other fĳields.102 Some experts defend the government’s wide discretionary powers on the grounds that without them the government would not be able to supplant the command economy with a system based on the free market.103 Others envisage a Peronist authoritarian type of development in East-Central Europe based on state dirigisme.104 Should this happen anywhere both the freedom of the citizen and the freedom of the constitution would sufffer greatly. The economic costs would also be considerable. Obvious remedies exist for the not particularly strong danger of government by parliament and the more real threat of an overbearing executive: 1. The President’s powers could be strengthened with regard to the government. This could be done with the direct election of the President by the electorate—a method which Hungarian parliamentarians,

population under licence (the stilted language of the order issued by the interior minister was a throwback to the nineteenth century, P. Balla, Magyar Nemzet (31 August 1990)). The government’s right to make appointments for most social institutions is inordinately wide. Civil servants are still under the party political control of ministers, C. Gombár in Magyarorsz. évk. (1990), pp. 38–9. 101 Sections 35 (2) and 37 (3) of the Constitution. The presumption of the law and the separation of powers are discussed with clarity in a short article by János Sári, ‘A hatalom hármassága’, Magyar Nemzet (16 May 1991). 102 For good examples, see Károly Törő, ‘Reformtörekvéseink és jogszabályalkotásunk ellentmondásai’, Valóság (1990), no. 7, pp. 15–25; government ordinances sometimes appear to be in conflict with the civil rights provisions of the Constitution. 103 Arguing in favour of deregulating the economy, an expert, József Kőrösi, nevertheless opined that ‘a government which wants to change the [economic] system needs wide scope for action’ (szabad mozgás), Magyar Nemzet (16 July 1990), p. 4. Tibor Bogdán, permanent under-secretary in the Ministry of Justice, in an interview was in favour of wide governmental powers in order to deal with the economic crisis, Hajnalka Cseke, ibid (8 April 1991), p. 6; also L. Császár Nagy, ibid (23 March 1991). Research shows that a majority of the public wants ‘stronger government leadership’, R. Boyes in The Times (14 June 1991). There is a real conflict here: the economy demands rapid deregulation and a ‘minimal state’; on the other hand the appalling state of the economy requires a central industrial strategy. Also, the political pressures are interventionist in order to ‘protect’ social groups from the efffects of market conditions. 104 Especially (foreign) liberal economists, e.g. Alan Walters in The Times (29 August 1990). 180 chapter four

supported by the public, have clearly rejected. The use of the presidential veto in legislation and other powers vested in the offfĳice could be looked at again.105 It is unlikely, however, that the president’s powers will be widened in the near future. 2. The establishment of a second chamber would provide a counterweight to the power of the House of Representatives without strengthening the executive branch. This obvious remedy does not commend itself to the politicians: it is not in the interest of either the government or the parties106 and, besides, the Upper House in the ancien regime never fulfĳilled the role of a revising second chamber. Nor was it efffective in maintaining a constitutional balance after 1848. 107 3. As soon as parties alternate in offfĳice, the parliamentary control of the government becomes more efffective. When that will come about depends entirely on parliament and the electorate. 4. The wide autonomy of local government would provide a constitutional guarantee. (It is not yet possible to say how much power the Republic’s Commissioner will in fact exercise in the Counties.) 5. The constitutional balance between the legislative and the executive powers will have to be protected by the rule of law (by the setting up of administrative courts) and by the growing authority of the judicial branch. Within less than two years the Constitutional Court has already become an independent factor of power. Correspondingly, the Court has become unpopular, especially with the government. Any plan to widen the remit of the Court would run into political obstacles; the question today is whether it will be allowed to keep its present remit or whether its competence will be narrowed.108 It takes time to accept what (in Hungary at least) is an entirely novel institution. But knowing the country’s history, I believe it is vital to consolidate the

105 I. Kukorelli. ‘Alkotmányossági vétó’, Magyar Nemzet (18 May 1991). A constitutional conflict which emerged in the summer of 1991 between the President and the Cabinet over their respective responsibilities was resolved by the Constitutional Court largely in favour of the latter. The Court rejected a wide, ‘liberal’ interpretation of the Constitution on the President’s powers and opted for a literal, strict interpretation CC Decision 1991 no. 48 (261X), Magyar Közlöny, no. 103, pp. 21, 11–26. 106 Otto Habsburg suggested the setting up of a second chamber (but he would do that, wouldn’t he?). Magyar Nemzet (19 May 1990), as also did the Agrarian Alliance, ibid 25 February 1991). 107 See the article referred to in note 37, above. 108 See Kinga Pétervári, ‘Akik a törvény ellen ítélhetnek’, Magyar Nemzet (6 August 1991) (an attack on the purview of the Court). The cautious defĳinitions given by the Constitutional Court of the President’s powers in September 1991 (see note 105, above) inter alia points to a restrictive interpretation of the Court’s responsibilities. montesquieu’s paradox on freedom 181

position of an institution which has sufffĳicient authority to keep the other two branches on the straight and narrow if Hungary is to become a Rechtsstaat. 6. Finally, the country should ratify the Rome Protocol of the European Convention on Human Rights and accept the jurisdiction of the Euro- pean Court of Human Rights. This move will require the adjustment of Hungarian law in several particulars beforehand. I have listed only the formal-institutional remedies and have not considered the social guarantees of the new constitutional system, such as an adequate turnout of the voters at elections,109 the free press, the independent radio and TV, the emergence of a new business class, the growth of the spirit of tolerance, the integrity of academic research into politics, and many others. Montesquieu’s view is also relevant. He thought that a democratic system could not survive without political virtue (its principe): patriotism and the respect for equality.110 All in all, in 1989–90 sufffĳicient formal-institutional reforms were created to make a free liberal system possible. Whether in fact the institutions will stay on a liberal course or will veer towards authoritarianism, as some economists fear, we have no means of predicting.111 Nevertheless,

109 Hungary had more elections than any other former Soviet satellite. Between the end of November 1989 and mid-October 1990, in less than eleven months, the electorate was called upon to vote six times. Participation was predictably uneven: fĳifty-eight per cent turned up at the referendum in November 1989 (see note 74, above), sixty-fĳive per cent at the fĳirst round of the general elections and forty-fĳive per cent at the run-offf in the spring of 1990 (see note 59, above). A paltry fĳigure of fourteen (?) per cent turned up at another referendum foisted on the electorate by a segment of the Opposition in July 1990, which was followed by two rounds of local elections with forty percent and twenty-nine percent participation respectively. See András Kőrösényi’s articles (listed in note 59, above) and Gábor Vajda, ‘Valasztók és választottak’, Valóság (1991), no. 3, pp. 12–27 (an analysis). Recent by-elections do not indicate improvement. The country was flabbergasted by the 19.4 per cent turnout in the by-election at Szerencs held in August 1991, with Mihály Kupa, Minister of Finance, as the front runner. As the election was invalid the voting had to be repeated. In September minister Kupa was elected on the basis of a 25.25 per cent turnout (just above the minimum that the law requires at the second try), Magyar Nemzet (16 September 1991). The reasons for the low turnout are partly political and partly technical; the electoral law is too complicated for most voters, the fortnight between the fĳirst and the second round is too long; above all there is apathy in the electorate. 110 Bk III. ch. 3 and Montesquieu’s explanatory note no. I. 111 See note 104, above. Political observers, on the Left in particular, are afraid of the re-emergence of the ‘nationalist, populist, authoritarian Right’ in eastern Europe, see Neal Ascherson, The Independent on Sunday (29 April 1990 and 2 December 1990). Nicholas Denton noted the dissatisfaction in Hungary with democracy and the fear of ‘anti-parliamentary sentiment’. Financial Times (17 April 1991), cf. Magyar Nemzet (18 April 1991). 182 chapter four the fear that Hungarian politics will, as it frequently has in the past, take an authoritarian turn is unjustifĳied.112 The new political elite, an essentially tolerant group on both sides of the political divide, should be able to work the institutions so that both the ‘subject’ and the ‘constitution’ become free and the ghost of Montesquieu’s paradox, for Hungary, is at last laid to rest. For once it is not the political institutions themselves that create in tractable problems in Hungary. Ultimately the success of the new constitution will depend on politics: whether or not the government will be prepared to face the social upheaval that the rapid dismantling of the command economy will unavoidably create.

(1995)

112 ‘Outsiders’, including Hungarians living abroad, are frequently more optimistic than the locals, e.g. György Gábor Józsa’s comments in Magyar Nemzet (8 March 1991), p. 9. Also, the importance of the historical background is increasingly recognised. It is sometimes argued that Hungary, together with Poland and Czechoslovakia’ has a better chance of integration into Europe’s social system than the Balkan countries, either on the grounds that the country avoided centuries of Turkish occupation (e.g. ‘The Ottoman Factor in Europe’, The Independent (18 June 1990) or on the grounds that the country had always belonged to Western rather than Orthodox Christianity, e.g. Peter Millar, ‘Europe’s Final Frontier’, The Times (9 May 1991); András Kőrösényi, Magyar Nemzet (24 July 1991), p. 7. CHAPTER FIVE

LANGUAGE, THE CONSTITUTION, AND THE PAST IN HUNGARIAN NATIONALISM

Although the impressively large sociological literature which has grown since the Second World War on modern nationalism has markedly improved the understanding of the subject, it has yielded few generalisa- ble conclusions. We do not know why one group of people does and another does not develop a claim to be a distinct community endowed with its own special characteristics. The so-called objective criteria, like geography, economic interest, social institutions, modernisation, and likewise common descent, religion, even common language, or any combination of these factors, fail to furnish an adequate general explanation.1 If, however, we merely try to fĳind out what distinguishes a particular nation or, indeed, any community from an aggregate of individuals, we may assume that those who claim to belong to a community do so because they share a common vision of its future, based on the memory of a shared past. How the past is remembered and memorialised by the members of a group conditions their vision of the future of the community. The contents of these twin beliefs lend character to a community. The claim to a shared past is particularly important for national communities: it sanctions their continued existence. I have chosen this perspective for the examination of two prominent influences that in the nineteenth century lent character to the claim that the Hungarians formed a distinct national community: the Magyar language and the country’s ancient constitution. Both provided plausible claims to a past linked to a vision about the future. I could have selected other influences which involved shared memories: religion, Hungarian folklore, music, cuisine, national dress,2 the flag and the coat

1 See Anthony D Smith, Theories of Nationalism (London, 1971), esp. pp. 181–85. 2 The cultivation of the national dress against the German naj modi was, together with the Magyar language, an essential feature of the nobility’s opposition to Joseph II’s policy of ‘Germanisation’. John Paget, an English traveller, wrote in the 1830s: ‘It would be an unpardonable sin not to give a particular description of the Hungarian uniform; for, after the language, it is one of the most cherished of the Magyar’s nationalisms; and is considered so essential to his rank, that I believe the more ignorant scarcely believed us when we told them, that, as English gentlemen, we had no uniform. It has undergone its changes, 184 chapter five of arms,3 the national anthem4 or the relics attributed to St Stephen, the founder of the kingdom in AD 1000, his surviving dexter, and especially St Stephen’s crown. Memories of events, especially the 1848 revolution, and of great personalities, like Lajos Kossuth, have been powerful forces of integration. To various degrees, each of these sources provided some memorialisable collective past. Arguably, however, the language and the tradition of the ancient constitution were more potent sources of com- munal memory than any of the other sources.

Language

The idea that ‘nations exist in their own language’,5 a much-used proverb in the nineteenth century, is rooted in the earlier literature, associated with the Enlightenment. The ascendancy of the Hungarian language movement had small beginnings in the 1770s.6 The writer György Bessenyei broke new ground with a programme: the cultivation of the native tongue which, in his view, should replace Latin in public life. ‘Every nation’, he writes, ‘acquired knowledge in its own rather than in an alien language […]Every nation is primarily recognised by its own language. What would we call a nation that lacked its own language? Nothing.’7 For Bessenyei, the mother tongue, an inherited asset as much as the object of a social programme, through cultivation, enabled the nation to acquire knowledge. Language paved the way to the advancement of the nation.8 however, as well as other things; and its history is almost a type of the people’s. In early days it smacked strongly of Turkish taste […]; during the reign of Joseph it received a most unnatural and Frenchifĳied cut, and the coat and its wearers were very near losing their nationality together: it has now again assumed its antique proportions and original form.’ Then follows a graphic description: Hungary and Transylvania (London, 1839), vol. 1, p. 419. 3 Hungarian politics after 1867 periodically went through convulsions over titles, hyphens, coats of arms, army flags, badges, uniform and the language of command. These political issues all impinged on Austro-Hungarian relations. Critics of Hungarian public life (particularly foreigners, like H. W. Steed, the Vienna correspondent of The Times from 1902) were irritated by what they saw as an obsession with trivia. 4 Ferenc Kölcsey’s ‘Hymn’ (1823) ‘epitomized his views on Hungarian history’, writes Lóránt Czigány, The Oxford History of Hungarian Literature, (Oxford, 1984), pp. 111–12. 5 ‘Nyelvében él a nemzet’; see Béla Tóth, Szájrúl szájra (Budapest, 1901), pp. 200–201. The provenance of the proverb in Hungarian has not yet been established. 6 Czigány, History, p. 83; Domokos Kosáry, Culture and Society in Eighteenth-Century Hungary (Budapest, 1987), pp. 49f., 197f. 7 ‘A magyar nyelv felemeléséért’ in Bessenyei György válogatott munkái (Budapest, 1961), p. 37. Cf. Margaret C. Ives, Enlightenment and National Revival (London, 1979), pp. 98f. 8 ‘Az országnak tárgyairól’ in György Bessenyei, Prózai munkák 1802–1804, ed. György Kókay (Budapest, 1986), pp. 76–9. language, the constitution, and the past 185

His literary work was dominated by the past. A successful dramatist, Bessenyei took his subjects from Hungarian history. His manuscripts on ‘social philosophy’ from the 1770s were likewise historical, although, as the modern editor of these works suggests, Bessenyei was rather sceptical about the usefulness of history as discipline.9 Bessenyei and others’ programme of language renewal failed to coalesce into a movement, and for a while the programme had only a limited appeal to the landowning nobility- the dominant social force in the country.10 Attitudes within the nobility were gradually transformed by the French Revolution, the spectacular success of the nobility’s resistance to Emperor Joseph II’s policy of ‘Germanisation’, the 1790 diet and the experience of the Napoleonic Wars. A pointer to their changing outlook was the impact of Herder’s work on the nobility as well as on the literati. In his History of Mankind, he drew an unpalatable conclusion from the fact that Hungarian was spoken by a minority (well under forty per cent) of the kingdom’s population. Educated Hungarians experienced a shock when they read in Herder (1791) that the language of the Hungarians, who ‘amid the Slavs, Germans, Romanians and others constitute the smaller part of the inhabitants, may not be spoken in a few centuries’ time’.11 Herder’s ‘prophecy’ was to haunt generations of Hungarian intellectuals and had much to do with the Romantic vision of nemzethalál (the nation’s death) which was to torment the Hungarian nobility’s ‘great awakener’, István Szécsényi, and many other reform politicians. The movement to ‘renew’, in fact modernise and develop, the Hungarian language and didactic literature for the advancement of the nation began in earnest around 1800.12 Language, no longer the concern of just a few scholars, itself became the focus of intellectual interest. There was much to be done. Hungarians, like German language reformers, considered it necessary to invent Hungarian terminology for abstract and scientifĳic concepts (where earlier Latin or German words had been used). However, the language lacked precision for new concepts, while

9 Idem, Társadalombölcseleti irások 1771–1778, ed. Péter Kulcsár (Budapest, 1992), p. 49. 10 See Endre Arató, ‘A magyar “nemzeti” ideológia jellemző vonásai a 18. században’, in Nemzetiség a feudalizmus koraban, ed. György Spira and Jenő Szűcs (Budapest, 1972), pp. 171–72 and 178f. 11 ‘Nach Jahrhunderten wird man vielleicht ihre Sprache kaum fĳinden’, Johann Gottfried Herder, Ideen zur Philosophie der Geschichte der Menschheit (Riga and Leipzig, 1791), vol. 4, pp. 19–20. 12 ‘Modern’ and ‘korszerű’ (translated from the German ‘zeitgemäß’) appeared in the language in the 1830s. They were used in a wide sense for all Western European ideas and institutions, and were not yet contrasted with the ideas of Romanticism. 186 chapter five its grammar was irregular and unsuitable for the expression of the new ideas. The language reform, led by Ferenc Kazinczy, followed the German model but was far more extensive. New words were coined, the grammar was codifĳied and orthography was gradually standardised. As the movement grew, Latin was replaced by Hungarian in schools and in public life. The movement looked for inspiration from the past. The pioneers - the antiquarians, lexicographers and grammarians, the poets, playwrights, novelists and publicists—were preoccupied with Hungarian history, which, together with the cultivation of language, was a tradition inherited from the eighteenth century.13 Their history had strong contemporary political relevance. The two outstanding literary works of the period were József Katona’s play Bánk Bán (1820), which recreated an episode from the thirteenth century and had a strong anti-German message, and Mihály Vörösmarty’s epic The Flight of Zalán (1825), which gave a glorifĳied account of the conquest of Hungary by the Magyar tribes in the ninth century. Engagement with the Hungarian past meant more than the reception of a literary norm associated with Romanticism. The new literature created a vision of the past to support aspirations concerning the community’s future. And Hungarian literature has ever since tended to shape national desiderata by recreating a national past. As happened elsewhere in central and eastern Europe, the Hungarian language reform and the new literature produced by the movement created a sense of nemzetiség (nationality) based. primarily on language. This implied that all Hungarian speakers, irrespective of their social status, belonged to the nation. The presence of some language reformers in the egalitarian Masonic lodges strengthens this assumption.14 It is not at all clear, however, that, apart from a few writers, anybody else understood by nemzetiség a language community which embraced all social groups. Moreover, there were a few educated people, like József Hajnóczy, in late eighteenth-century Hungary who, under the influence of the French Enlightenment, understood by the ‘nation’, irrespective of language, the whole population.15

13 See the survey by Domokos Kosáry, Művelődés a XVIII. századi Magyarországon (Budapest, 1980), pp. 571–84. 14 On the freemasons, who believed in legal equality and who drew support from the educated nobility and the professions, see ibid., pp. 323–9, with references to recent publications by Éva H. Balázs, p. 324, n. 1. 15 Hajnóczy József közjogi-politikai munkái, ed. Andor Csizmadia (Budapest, 1958), pp. 239–40. language, the constitution, and the past 187

The nobility itself had been for centuries a powerful community which, together with the honoratiores (educated county offfĳicials and other professionals), formed the natio Hungarica, the magyar nemzet, from which, however, not only the town burghers and the serfs but sometimes even the aristocrats (the titled nobility) and the Roman Catholic hierarchy were tacitly excluded. The natio (nemzet) of the exceptionally large Hungarian (untitled) nobility which embraced nearly fĳive per cent of the population was, as Marxist historians emphasise, a social class rather than a nation in any present-day sense.16 Yet it has been frequently argued that at least its incipient form the ‘modern nation’, which included all Hungarian speakers, might have been the social ideal of all nobles and honoratiores who supported the language movement. That shrewd observer of events, Zsigmond Kemény, noted in retrospect in 1851 that what he termed the ‘philological revolution’ had from its inception been a political movement produced by deep discontent with existing social conditions, and that the movement through the renewal of language had created a public receptive to new ideas. For Kemény, the language reform had inevitably led to the new literature and that in turn to the reform of society and the state.17 This might have been so. But Kemény presupposed continuity where there was in fact discontinuity. Philology has not so far yielded a point d’appui whence it is admissible to read the appellation magyar nemzet as the single community of all Hungarian speakers. The term was much older than the birth of the language movement. The fact that in Hungarian there is a single word for ‘Magyar’ and ‘Hungarian’ does not help either. Nor does the term ‘nationalism’, whose morphological appearance clearly preceded the uses to which the term is normally put today. In an unambiguously derogatory sense, the councillors of the Staatsrat referred to the Nationalismus prevailing in the royal Hungarian administration in the 1760s.18 The word

16 In denouncing the Emperor as a suppressor of Hungarian liberties, László Záborszky complained bitterly in a pasquillus in 1787 that the nobility was not even allowed to speak Hungarian any more. But this noble from Liptó County wrote his pamphlet in Slovak and probably did not know much Hungarian. See Endre Arató’s comments in Nemzetiség a feudalizmus korában, pp. 156–57. 17 Forradalom után, etc. (Budapest, 1908), pp. 226–8. ‘Social modernisation’, pace soci- ologists, cannot explain Hungarian nationalism, which had flourished for decades before the idea of social reform took root in the country. 18 Councillor Borie complained in 1762 about “dem daselbst praevalirenden Nation- alismus’ of the Hungarian Chancellery; see Sándor Domanovszky, József nádor élete (Budapest, 1944), I/i, p. 68, n. 31. G. de Bertier de Sauvigny has pointed out that nouns with the sufffĳix ‘ism’ usually appear fĳirst in pejorative senses (referring to something 188 chapter five here clearly meant separatism, lack of cooperation. There is an early example of its use in an afffĳirmative sense from 1809: Ferenc Kazinczy, in a letter to Count József Dessewfffy, referred to Count Ferenc Széchényi as an ‘ardent supporter of the Hungarian language and nationalismus’.19 Even this example is unlikely to have much to do with the new semantic content of the term. ‘Nationalismus’ appeared at least in one Hungarian dictionary (in 1818), which defĳined it as ‘national character’.20 Thus, for Kazinczy, ‘nationalism’ possibly meant the character of the nobility-based nation of which language was the fundamental attribute. However, very little direct research has so far been carried out on the subject.21 The fact that the editor of the newspaper Hazai Tudósitások, István Kultsár, felt it necessary to write an article in 1807 with the title ‘Who are Hungarians?’ indicates that the social. defĳinition of being Hungarian was changing.22 Having established that, ‘legally’ speaking, all magnates, nobles, indigena (foreigners who had acquired nobility) and the burghers of the towns were to be considered Hungarian, Kultsár then went on to argue that the magyar nemzet was the country’s ruling nation by virtue of its rights and, likewise, by virtue its size because the majority of the population spoke Hungarian (a piece of wishful thinking on his part). Instead of adducing other, similarly ambiguous examples, it could be suggested as a plausible hypothesis that the term magyar nemzet may not have acquired its modern senses before the language movement of the literati fused with the political reform programme that emerged within the nobility to establish a civil society based on the principle of legal equality. Well before that happened, however, the nobility had wholeheartedly identifĳied with the aims of the linguistic literary movement. Reference to threatening) before settling down to descriptive senses: ‘Liberalism, Nationalism and Socialism: The Birth of Three Words’, Review of Politics, 32 (1970), 143–66. 19 On 21 January 1809: Kazinczy Ferencz összes művei, ed. János Váczy (Budapest, 1895), vol. 6, p. 193. 20 József Márton, Lexicon trilingue Latino-Hungarico-Germanicum, 2 vols (Vienna, 1818); see A magyar nyelv történeti-etimológiai szótára, ed. Loránd Benkő (Budapest, 1970), vol. 2, p. 991. 21 An important reason why the uses of ‘nation’ in the early nineteenth century have not been properly studied is the assumption that the concept already existed in a socially wide sense. Most historians treat the Rákóczi revolt (1703–11) as a national rising which united all classes. Undoubtedly, many peasants and burghers fought in Rákóczi’s army against Habsburg rule, but the great insurrection invoked the ius resistendi of the nobility rather than the national principle. 22 ‘Kik a magyarok?’, 21 March 1807, Hazai Tudósitások, ed. Katalin S. Varga (Budapest, 1985), pp. 35–38. language, the constitution, and the past 189 the past was crucial. The nobility claimed that Hungarian should replace Latin in public life on the basis of ‘historic right’. As the character of the kingdom had always been Hungarian, Latin being an interloper, it was time that ‘the rights’ of the Hungarian language be ‘restored’ through legislation at the diet. The change was brought about, piecemeal. The replacement of Latin by Hungarian involved conflicts at the diet among the Hungarian and Croat deputies and the Court. The Serbian, Romanian and Slovak national movements had no representation at the diet, and their language claims were ignored. County deputies had already argued at the 1790 diet for the replacement of German by Hungarian, rather than by Latin, in the public administration. The majority, however, supported the reintroduction of Latin nunc adhuc.23 Two years later, article VII of 1792 introduced Hungarian as an ordinary subject in grammar schools, and the fĳirst steps were made towards a change to Hungarian in the administration. Article IV of 1805 permitted the counties to correspond with the royal dicasteria in Hungarian and Latin, and the same rule, using Hungarian and Latin side by side, was introduced at the proceedings of the diet. Article VIII of 1830 ordered the dicasteria to use exclusively Hungarian in its correspondence with those counties that wanted the change. Paragraph 4 of the Law required knowledge of Hungarian for all administrative appointments in Hungary proper in the future. There were heated debates about whether the same rule should apply to Croatia. Hungarian began to be introduced in the High Courts, and the monarch permitted the military to receive correspondence from the civil authorities in Hungarian. Article III of 1836 declared the Hungarian text of the laws (rather than the Latin) to be authentic until 1844, when Law II made Hungarian the sole language in which laws were enacted. The language of the diaetalis proceedings, the whole civil administration and the judiciary also became exclusively Hungarian in Hungary; a few exceptions were made for Croatia. In addition to the measures through which the claim to Hungarian ‘language rights’ was asserted with respect to the political institutions, legislation also aimed at spreading Hungarian in the kingdom’s multilingual population. Paragraph 4 of article III of 1836 ordered parish registers of births to be kept in Hungarian wherever the sermons were held in that

23 See the draft royal script of the Chancellery, 21 September 1790, in Gyula Szekfű, Iratok a magyar államnyelv kérdésének történetéhez 1790–1848 (Budapest, 1926), p. 224. Szekfű pointed out Councillor Sándor Pászthory’s role in the insertion of the phrase, pp. 50f. and 138. 190 chapter five language. Paragraph 7 of article VI of 1840 extended this rule to all church registers, irrespective of the language of sermons. Paragraph 9 of article II of 1844 announced as a blanket rule that in the (grammar) schools of Hungary proper, the language of tuition was to be Hungarian. In contrast to the changeover to Hungarian in political institutions, legislation which aimed at the Magyarisation of society was unenforceable and largely inef- fective. Its chief result was to exacerbate the conflict between the non- Hungarian intelligentsia and the Hungarian movement. Nevertheless, the Hungarian national movement rapidly gained strength. The national movements of the non-Hungarians were small and inefffective. The critical factors that fortifĳied Hungarian nationalism were its openness to newcomers and its ability to combine successfully the ‘philological revolution’ with liberal social reform. ‘All inhabitants of Hungary to be given civil status’ (polgári lét) was how Count István Széchényi in 1833 summed up the programme of creating a Western European civil society based on the principle of legal equality.24 Social reform was to serve a national end. Ferenc Kölcsey, liberal leader in the lower chamber of the diet, noted in his diary: ‘the government wants urbárium [peasant reform] for its own sake whereas Wesselényi [a liberal magnate] and his friends want a nation through the urbárium’.25 As Kemény observed, the linguistic-literary movement had already taken fĳirm root before the nobility (or even a part of it) assimilated the liberal ideas of social reform - a not untypical progress towards liberal nationalism in many European countries. All in all, the magyar nemzet concept which attracted loyalty from all classes, rather than from the nobility only, emerged when, and to the extent that, after 1830 a growing proportion of the nobility accepted Széchényi’s vision of the future: the creation of a Hungarian civil society.26 This was a programme rather than a fact. The social and cultural gap between the nobility and the peasantry remained wide even after the emancipation of the serfs in 1848 and the introduction of legal equality later. Social integration even within the Hungarian-speaking population remained so incomplete that the question of whether a ‘Hungarian society’ had existed at all became for decades a frequently discussed topic in the political literature even in the

24 Stadium, published in Leipzig because of censorship in Hungary. Széchényi István válogtott irásai, ed. István Barta (Budapest, 1959), p. 189. 25 Ferenc Kölcsey, Összes művei (Budapest, 1960), vol. 2, pp. 398–9. 26 Civil society (polgári társaság) was understood by the reformers as the Western European social order based on a single legal system whose norms applied equally to all. The concept and the term were eighteenth-century borrowings from German. language, the constitution, and the past 191 twentieth century.27 Arguably, the popular song ‘Lajos Kossuth sent the message…’ helped national integration more efffectively than the introduction of equality before the law. The magyar nemzet should be distinguished from the politikai nemzet, a product of the 1840s, which attained its clearest formulation in the Preamble, drafted by Deák, of Law XLIV of 1868 ‘On the Equality of Nationality Rights’: ‘all citizens of Hungary, according to the basic principles of the constitution, form, in the political sense, a single nation, the indivisible unitary Hungarian nation of which every citizen of the fatherland, to whatever nationality he may belong, is a member with equal rights’.28 In contrast to the magyar nemzet, the politikai nemzet, a quasi-legal concept to support the claim that the Hungarian state had to be unitary, did not become a community which attracted loyalty.29 The population remained divided largely along linguistic lines right up to the dissolution of the Monarchy in 1918.

The Constitution

Between 1790 and 1918, the nobility’s ancient constitution, avita constitutio, provided a potent and enduring source of a shared Hungarian past. The claim to historic rights vested in the constitution lent shape to the idea that the Hungarian nation had been in continuous existence for over 800 years. This is a subject which scholarship has not entirely neglected. Half a century ago, Domokos Kosáry published his study on Lajos Kossuth’s political nationalism in the 1840s.30 However, Kosáry’s work has not been followed up since the Second World War (at least in Hungary). The locus classicus on the constitution’s role in lending character to the magyar nemzet can be found in Lajos Kossuth’s article published in his paper Pesti Hirlap in 1842. Like other nationalists, Kossuth assumed that

27 See László Péter, ‘Volt-e magyar társadalom a XIX. században? A jogrend és a civil társadalom kepződése’, in Endre Karátson and Péter Várdy (eds), Változás és állandóság: tanulmányok a magyar polgári társadalomról (Amsterdam, 1989), pp. 50–99. 28 See László Péter, ‘Law XLIV of 1868 “On the Equality of Nationality Rights” and the Language of Local Administration’, p. 349 below. 29 Nevertheless, a few (educated) individuals were attracted to the idea. R. W. Seton- Watson dedicated his work on Racial Problems in Hungary (London, 1908) to the ‘Hungar nemzet’, which comprised all non-Hungarians as well as Hungarians. 30 Domokos Kosáry’s seminal study, ‘A Pesti Hirlap nacionalizmusa 1841–1844’, Századok (Budapest, 1943), pp. 371–414, was republished by the author in his Nemzeti fejlődés, művelődés – európai politika (Budapest, 1989), pp. 23–50. 192 chapter five the concept of nation was ‘fundamentally tied to the mother tongue’.31 However, he argued emphatically that language was not the single criterion which distinguishes a nation: Nationality is a historical fact of which language is not the sole factor. For a people to qualify to be a nation, it is also necessary to possess a common constitution, common sentiment, interests and the common need for progress and development. It is necessary that we should be tied to each other by the shared memories of a great age. This nation presupposes a degree of education and active consciousness as well as the ability to manifest in given circumstances these qualities and acquire a standing which is independent of all other nations. The nation presupposes material and moral forces, without which it cannot obtain, as well as the rights which time and history have sanctioned. Kossuth then explained that in Hungary a single nation, the Hungarian, possessed these qualities, and that to develop any other nation ‘would amount to the destruction of the historical order’.32 For a century after 1842, the passage became the canon of Hungarian politics. The constitutional issue, which dominated political discourse up to 1918, largely concerned the national aspiration to attain Hungarian ‘independence’ by reference to pre-existing constitutional rights: national desiderata were habitually read into laws already on the statute book. The historic right argument, as an interpretation of the Hungarian past, explained and forcefully legitimised a vision of national individuality and independence concerning the future. The nationalism of Pesti Hirlap represented a new departure from old attitudes; it replaced an oligarchic ideology with a popular one. Earlier, the ancient constitution had unambiguously belonged to the nobility. Although the Hungarian nobility, comprising nearly fĳive per cent of the population, was one of the most populous in Europe, its ‘ancient’ constitution could not attract loyalty from social groups outside the natio Hungarica. Nevertheless, the nobility’s constitution possessed qualities like flexibility and openness to newcomers which enabled it to widen its social appeal. The Hungarian constitution, although parts of it were indeed old, was not all that ‘ancient’. Some fundamental noble privileges, together with the ius resistendi against unbridled royal power, had been asserted as

31 ‘Nyelvünk ügye’, 9 January 1841, in Gr. Széchényi István, A kelet népe, ed. Zoltán Ferenczy (Budapest, 1925), p. 113. 32 Quoted in Kosáry Századok, p. 384 language, the constitution, and the past 193 early as the Golden Bull which was imposed on Andrew II in 1222 and which nineteenth century champions of the constitution compared to the Magna Carta. County jurisdiction appeared in the thirteenth century and the system of Estates in the fĳifteenth. The diet and the counties became largely independent of the Crown, acquired by the Habsburg dynasty during the sixteenth century when a large part of the kingdom was occupied by the Ottomans. The county became the ‘bastion of the constitution’ during the reign of Joseph II. The crucial innovation was the emergence of the concept of the Hungarian constitution itself. Hungary’s educated nobles, like other élites in Europe, discovered in reading Montesquieu’s Esprit des lois (1748), a very popular book in Hungary,33 that they possessed a ‘constitution’ rather than just a collection of customary rights sanctifĳied by immemorial tradition.34 The term meaning the fundamental rules of the social and political order became a part of political discourse in the late 1780s. Article X of 1790 enacted that the kingdom had to be ‘ruled and governed according to its own laws and customs’ because it had its own character and constitution (propriam habens consistentiam et constitutionem). This was the fĳirst statutory reference to the ‘constitution’, and the avita constitutio had become a stock phrase only a few years before the fĳirst railways were built. The Hungarianalkotmány , a calque from the Latin, earlier meant something assembled, a building in particular. Even after the word had acquired its new, juristic sense (possibly in the 1780s), it retained something of its old meaning. In the popular image, alkotmány was associated throughout the nineteenth century with a building. The constitution was a ‘castle’, vár, which the nation defended against hostile outsiders, Vienna in particular. Built of rights, each being a ‘stone’, the constitution, ‘erected’ over the centuries, possessed ‘walls’, ‘arches’, ‘ramparts’, ‘bastions’ (the counties), ‘turrets’ and a ‘citadel’. The constitution, by cementing new guarantees into it, could be ‘reinforced’. For instance, Kossuth argued in 1841 that legislation introducing Hungarian in every aspect of public life would be the ‘cornerstone’ that cemented the German royal towns ‘in the legal edifĳice of the

33 On Montesquieu’s popularity in Hungary, see Sandor Eckhardt, A francia forradalom eszméi Magyarországon (Budapest, 1924), pp. 22–9; Éva H. Balázs in Magyarország törté- nete, ed. Zsigmond P. Pach et aI., vol. 6, pp. 846, 1428–9; László Péter, ‘Montesquieu’s Paradox on Freedom and Hungary’s Constitutions 1790–1990’, pp. 156–57 above. 34 The word ‘constitutio’ earlier appeared usually in the plural, meaning statute law of the diet or the county. ‘Verfassung’ appeared in government papers, meaning the social and political structure of the country. 194 chapter five

Hungarian constitution’.35 On the other hand, the constitution may be weakened by lack of vigilance; its ‘ramparts’ can ‘fall down’. In a crisis, the constitution, ‘besieged’ by its ‘enemy’, may be ‘engulfed in flames’. Through defeat, the constitution can be ‘ruined’ and the natio, ‘dislodged’ from its abode, then has to fĳight for its ‘reinstatement’ through ‘litigation’.36 There is an obvious analogy between this popular notion of the constitution and the nobility’s preoccupation with property rights. The untutored view of the constitution as a building which the nation possessed implied that it was a forbidden place for the king, although few people would have said this in so many words. The uneducated masses of the nobility, helped by the crude but graphic imagery of the constitution-castle, assimilated a socially transmitted vision of a glorious past. The nobility developed inflated claims about its ancient constitution. ‘No other nation apart from the English and the Hungarian can be called free’, declared the county of Zemplén in its address sent to Joseph II protesting against the German language ordinance in 1784.37 The intellectual resources available to the nobility at the end of the eighteenth century may have been rather limited, yet in the 1790s alone some 300 works—mostly pamphlets in Latin, Hungarian and German—were published on the constitution. Although, when censorship tightened in the early years of the nineteenth century, publications slumped, they became more numerous again in the 1820s. As liberal nationalism appeared, the ancient constitution, the object of pride and intense loyalty for a narrow segment of the population, began to attract loyalty from other social groups. The liberal reformers in the wake of Széchényi’s movement aimed to ‘modernise’ social institutions (making them korszerű) by the adoption of Western European standards. The emancipation of the serfs, the reform of the towns, the introduction of general taxation, the franchise and ministerial responsibility and, above all, the substantially widened autonomy for Hungary within the empire, all formed parts of a new vision of the future. The ‘drawbridge’ of the constitution-castle was to be lowered to allow the plebs—the

35 Kossuth Lajos iratai (Budapest, 1906), vol. 12, pp. 217–18. 36 Pál Somssich, a leading Conservative who joined Deák, referred to the constitution on 18 May 1861 at the diet as a ‘transmitted but lost ancient inheritance’; he argued that the fĳirst responsibility of his generation was the ‘preservation of this inalienable entail’. Az 1861. év april 2. Pesten egybegyűlt országgyűlés képviselőházának naplója (Pest, 1861), vol. I, p. 184. 37 Henrik Marczali, Magyarország története II. József korában (Budapest, 1888), vol. 2, p. 394. language, the constitution, and the past 195 non-nobles—to enter. When Kossuth makes the claim that Hungary ‘belongs to the Hungarians’38 and refers to ‘our constitution’,39 the referent is no longer the nobility but the nation led by the nobility. Those who are willing to be identifĳied as Hungarian by sharing a view of the past and a new view of the future, irrespective of their social or ethnic background, form the new nation. In the spring of 1848, the Hungarian liberals had their chance: they ‘let the people into’ the constitution, transformed by the April Laws which broke the back of the old social order based on hereditary right and introduced independent, representative and responsible government. Although the revolution and the War of Independence failed conspicuously, they set a standard for Hungarian politics that outlasted even the Monarchy. The conflicts, the civil war in the south (with the Serbs and with Croatia) and later the war with the Austrian and the Russian armies, the reprisals taken after the defeat and the imposition of an Austrian, centralised, ‘absolutist’ government in the 1850s turned the years of 1848 and 1849 into the great historical experience, a memorialised past, that left permanent marks on the new Hungarian national mentality. In the 1867 Settlement, the lost constitution was ‘repossessed’ and a new balance was created between the Crown and the nation. Although the drawbridge of the constitution was lowered in 1848 and in 1867, the gates were not flung wide open: neither the nationalities nor the bulk of the Hungarians walked through. The political franchise was confĳined to around six per cent of the citizens, and nearly half of the population remained illiterate. The aristocracy and the gentry landowners retained their ascendancy in Hungarian society even in the twentieth century.40 Nevertheless, the country’s reformed oligarchic constitution was able to attract loyalty from a growing proportion of the public, the educated Hungarian middle classes in the towns and the landed peasantry in the countryside. During the protracted constitutional crisis of 1905–6, the political elite was able to count on the enthusiastic support of the Hungarian public. This was possible even though parliament’s remon- strances, the royal audiendum verbum, the vis inertiae practised by the counties, the restoration of order by royal commissars helped by army

38 Kossuth Lajos iratai, vol. 12, p. 336; cf. p. 410 (concerning Hungarian language rights by reference to the constitution). 39 Pesti Hirlap, 9 January 1841, in Gr. Széchényi István, A kelet népe, ed. Ferenczy, pp. 113–14. 40 László Péter, ‘The Aristocracy, the Gentry and their Parliamentary Tradition in Nineteenth-Century Hungary’, pp. 328f below. 196 chapter five units and the political truce based on a pact between the Crown and the ‘nation’ were methods inherited from the seventeenth century rather than borrowed from nineteenth-century liberal constitutionalism. An inordinately large part of national energies went into the exploration of the constitutional past. Scholarly output during the Dualist era probably exceeded 2,000 works, mostly dealing with historic right arguments of one kind or another. The constitution was not regarded by Hungarians merely as the branch of law which dealt with the distribution and the use of state power. For the Hungarian politician, the jurist and a large part of the educated public, the ‘thousand-year-old’ ancient constitution was precious, unique and possessed a mystical quality. Kossuth set the tone even after 1867. The Great Exile insisted in his much-read memoirs not only that the Hungarian constitution was the oldest in Europe but also that the Hungarians were the only truly constitutional nation on the Continent.41 The scholars followed the sage. Elsewhere, they claimed, political authority was ‘patrimonial’, ‘feudal’ and ‘absolutist’. By contrast, in Hungary the constitution had possessed a ‘public law’ character centuries before other countries discovered the concept of the State in the nineteenth century. The constitution was the manifestation of the national genius, the palladium of Hungary’s historic rights, independence and integrity, and the guarantee of national survival. It is not, therefore, at all far-fetched to suggest that in the nineteenth century the claim to a unique and continuous constitutional tradition was as closely bound up with the claim to a national individuality as the Hungarian language itself.

Epilogue

In 1918 the world collapsed around the Hungarians. With the dissolution of the Habsburg Monarchy, the kingdom lost two-thirds of its territory and well over half its population. The Trianon Peace Treaty (1920) established independent Hungary with 6,000,000 Hungarians, but 3,000,000 of their kinsmen were assigned to Hungary’s new neighbours. Hungarians, like, Austrians although in an entirely diffferent form, experienced a crisis of perception about their future. Pessimism was widespread. The dissolution of the Monarchy and ‘historic Hungary’ undermined the efffĳicacy of the two crucial influences which had hitherto helped to defĳine Hungarian nationality. Whereas before 1918 practically all Hungarians had lived in

41 Lajos Kossuth, Irataim az emigrációból (Budapest, 1881), vol. 2, p. 239. language, the constitution, and the past 197 the kingdom, the Trianon Treaty put a third of all Hungarians under foreign governments: nation and state diverged. Also, after the dissolution of the Monarchy, the constitution, which had essentially concerned conflicts and accommodations between the crown, its empire and Hungary, largely lost its raison d’être. In the inter-war years, concern with the past shifted to the territorial aspects of the kingdom’s history. The central aim of the government supported by the public, was the restoration of the nation by the revision of the Trianon borders, and this aspiration was once more justifĳied by reference to historic rights. National energies, instead of concentrating on the constitution, now focused on the hazy questions ‘What is Hungarian?’42 and ‘In what sense do all Hungarians constitute a single nation?’ Intel- lectuals and journalists turned to the recent and the remote past for enlightenment.43 They discovered mistakes, failures and tragedies, and were fĳilled with a sense of injustice, insecurity and fears for the future.44 The worst was yet to come. With the help of Mussolini and Hitler, Hungary regained some of her lost territories during the Second World War, only to lose them once more in 1945 when the country was occupied by the Soviet Army. The Trianon borders were restored in the 1947 Peace Treaty. National morale was at lowest in the immediate post-war years, when Hungary was turned into Soviet satellite and its Communist leaders, in their zeal to reject ‘bourgeois nationalism’, made ‘the nation’ carry the opprobrium for being the last ally Hitler’s Germany and for the exter- mination of half a million Hungarian Jews. The ersatz-historicism of Hungarian ‘progressive patriotic inheritance’ did not generate much support in the population. A world event (although once more a spectacular failure), the Hungar- ian revolution of October 1956 restored national morale. Never before had a movement united all social groups in Hungary so efffectively as did the revolution. Its nationalism was anti-Russian; there was no sign of territorial revisionism. For once, Hungarians were looking forward rather than back to the past. But national morale slumped after Khrushchev’s tanks moved back in November; and when under Kádár, years later, political discourse became freer than it had been in the 1950s, the composition of

42 See e.g. Gyula Szekfű (ed.), Mi a magyar? (Budapest, 1939). 43 Gyula Juhász, Uralkodó eszmék Magyarországon 1939–1944 (Budapest, 1983), reveals the extraordinary extent to which political questions were discussed by reference to the past. 44 See István Bibó’s classic analysis, ‘A keleteurópai kisállamok nyomorúsága’ (1946), in Zoltán Szabó (ed.), Harmadik út (Rome, 1960), pp. 109fff. 198 chapter five fĳine essays on the ‘confusions’ and ‘disorders’ of Hungarian ‘national identity’ became a habitual pastime of the literati. The collapse of communism in 1989 did not bring much change in national morale. A ‘wounded nation’ whose intellectuals exude pessimism, Hungarians are today more preoccupied with the past than with their future. But party conflicts (which have emerged within a parliamentary system as fĳirmly established as anywhere in the former Soviet satellites) reveal alternative conceptions of ‘nation’. The question still hangs today whether the 10,000,000 citizens of Hungary, or all those who consider themselves to be Hungarian wherever they live, form the national community. If it is the latter, what sort of common future can they expect to have? What is quite clear, however, is that Hungarian nationalism is communitarian and cultural rather than territorial. Hungarians have learnt from their past failures, and their politicians, in government and in opposition, and the public accept the Trianon borders. They want cooperation with their neighbours and the protection of Hungarian minorities rather than confrontation through demanding border changes. It is much less clear, however, when, if ever, they will digest the traumatic experience of losing their historic kingdom seventy-fĳive years ago.45 This essay has characterised national, indeed all, communities as social groups that possess a vision of a common future. It is a vision that requires a shared view of the past. For Hungarians the attachment to memories has perhaps been a more potent force than it has been for many other national communities.46 An unusually large proportion of today’s political élite, including the Premier and the Foreign Minister, were practising historians before 1989; perhaps they can help in the readjustment of national orientation. Hungarians should come to terms with their own past, which requires a critical analysis of their experiences in the last two centuries. That in itself, however, is not enough; they will be able to overcome the preoccupation with their ‘national identity’ only if they achieve collective success in the present which can provide inspiration for the future.

45 József Antall said at a party conference on 2 June 1990: ‘Legally speaking, on the basis of the constitution, I am the Prime Minister of Hungary’s 10,000,000 citizens, but in spirit and sentiment I wish to be the Prime Minister of 15,000,000 Hungarians.’ 46 Because maps of the historic kingdom are selling like hot cakes in Hungary today, foreign journalists all too frequently jump to the conclusion that once again Hungarian territorial revisionism has raised its ugly head. This does not follow at all. No clauses in the Trianon Peace Treaty awarded the past, together with the land and the people, to Hungary’s neighbours. CHAPTER SIX

LAJOS KOSSUTH AND THE CONVERSION OF THE CONSTITUTION

The proposition that the world changed in 1848 may be questioned elsewhere – but not in Hungary. Quite rightly so. The creation of the fĳirst Hungarian responsible ministry, the passing of the April Laws, the National Assembly and, above all, the War of Independence were the formative events in the birth of modern Hungary. 1848 has become emblematic of national identity. The revolution (always in the singular rather than the plural) is credited with the creation of Hungarian civil society out of social groups that were both legally and culturally diverse. Furthermore, the revolution became a focus of national aspirations to attain independence. The revolution also generated conflicts and civil war within the kingdom between the Hungarian and the rival Slav and Romanian movements and these conflicts, too, became a legacy of 1848. The Hungarian constitution, in the widest sense of the term, was undoubtedly transformed in 1848. The change can be looked at from a variety of perspectives. The ancient constitution offfers one vantage point and so does Marxist social theory or ‘modernisation’. Yet what I dare call the conversion of the constitution offfers a more adequate perspective on the subject than any alternative. Why do I believe that? The ancient constitution consisted of the mutually recognized rights and obligations of two actors: the crown and the nobility organized in the counties, and the diet of the ország. Their constitution went through conflicts and accommodations by tractatus, agreements, in 1608, 1681, 1711, 1790 and 1848, leading to the Settlement of 1867.1 A historical analysis

1 There is more than a grain of truth in C. A. Macartney’s assessment of the 1867 Settlement: ‘there was nothing essentially new in the Dualist System. It simply adapted to parliamentary conditions relationships which went back far in the history of the Habsburg Monarchy. It was not in 1867 that Hungary fĳirst achieved legal recognition of her independence of the Habsburgs’ other territories, except in respect of defence and foreign afffairs. This had been assured her by many solemn promises, including those made by Charles VI or III in connection with the Pragmatic Sanction and Leopold II’s laws of 1790–91. It was also a fact that when the Hungarian constitution had been annulled, as by Leopold I, or ignored, as by Joseph II, Hungary had fought back and had recovered it. Her 200 chapter six based on the vocabulary of the customary constitution like privilege, gravamina, postulata, diaetalis tractatus reserved rights, fundamental laws and so on, sheds much light on the process. But explanations based largely on such terms would get bogged down in continuities whereas it was the discontinuities that lent character to 1848. Marxism provides a vantage point that places all the emphasis on discontinuities: the revolution replaced ‘feudalism’ with ‘capitalism’, abolishing serfdom and introducing ‘bourgeois parliamentarism’ in place of ‘feudal absolutism’. For me these are large claims that have to be unpacked. The vocabulary of Marxist metaphysics does not penetrate the subject of the constitution and it is not much use even for understanding social change. How can it be, for instance, that in the new 414-member House fewer than ten non-nobles faced the landed gentry and the aristocrats who together made up a robust 74 per cent of the membership? What is commonly regarded by historians as a polgári forradalom, ‘bourgeois revolution’, created a one-class parliament dominated by the landed gentry, the bene possessionati. In 1861, the preponderance of the aristocracy and the landed gentry in the House rose to 77.3 per cent with the nobility as a whole securing 80 per cent of the seats. In the House that passed the 1867 Settlement the proportion of the landowning nobility rose to almost 79 per cent. That is to say their proportion in the House from 1848 to 1867 actually rose.2 Where was the bourgeoisie? Modernization theories (Marxist metaphysics in sheepish form) are even less helpful in understanding of social or constitutional change. Ministerial responsibility, the concentration camp and the doctrine of mutually assured destruction are all ‘modern’. What do they have in common? And what on earth do the very diffferent societies that are lumped together as ‘traditional’ have in common beyond the trivial point that we would not fĳind Esso gas stations in any of them?

‘April Laws’ of 1848, which formed the Hungarians’ point de départ in the later negotiations, had been questionable in their treatment of the ‘common subjects’, but not in asserting her complete internal independence nor, indeed, were they so questioned in Vienna itself, when fĳirst enacted. ‘The Compromise of 1867’, in Studies in Diplomatic History, eds. R Hatton and M. S. Anderson, 1970, London, p. 299. 2 See Ernő Lakatos, A magyar politikai vezetőréteg 1848–1918, Budapest, 1942, pp. 29–34, 49–50, László Péter, ‘Die Verfassungsentwicklung in Ungarn’, in Die Habsburgermonarchie 1848–1918, eds. Helmut Rumpler and Peter Urbanitsch, Vienna, 2000, VII. P. 344 (hereafter: ‘Verfassungsentw.’). lajos kossuth and the conversion of the constitution 201

The term ‘conversion of the constitution’ covers a cluster of interre- lated theses and seems to me a more adequate analytical tool to unpack and elaborate the constitutional transformation of 1848 and after than any offfered by other schemes because it penetrates the core of the subject. After 1830 liberal nationalism became the driving force of Hungarian politics. The reformers, Széchenyi, Wesselényi, Kölcsey, Deák, Kossuth, Eötvös wanted to create a Hungarian civil society through legislation. Indeed, the liberal nationalists understood by ‘civil society’ (polgári társadalom) a community based on statute laws which applied equally to everybody rather than, as Marxists would have us believe, the capitalist system. What I refer to as conversion here is the contemporary alkotmányos kifejlés or kifejtés, Entwicklung, and for the liberal nationalists primarily meant the replacement of the constitution, based on rights, by another system based on statute laws. Or to put it less formally, the system of privileges was to be replaced by a social order based on legal equality. Also, some of the monarch’s reserved rights were to be shared with the nation so that representative government could be introduced without the nobility losing its ascendancy in Hungarian society. The central aim of liberal nationalist nobles was, in close connection with the creation of a Hungarian civil society, the establishment of an autonomous Hungarian state within the Habsburg Monarchy. Looking at it from this perspective, conversion meant the transition from the customary constitution based on the bipolarity of the ország and the crown to the all-embracing legal system, called the State, created by statute law. Also, conversion had a territorial aspect: the medieval precept of the inalienability of the crown was converted into the integrity of the ország (a point to which I return below). Finally, the conversion afffected the distribution of social power: it inaugurated a shift within the country’s landowning elite. Hitherto the aristocracy was in a dominant position; from 1848 onwards the gentry was in the saddle.3 All in all, and with the benefĳit of hindsight, the conversion from the system of rights to that of statute laws was a change not fully carried through in nineteenth century Hungary. The reformers, in general, were committed to the west European idea of civil society, polgári társaság, in which every individual possessed

3 László Péter, ‘The Aristocracy, the Gentry and Their Parliamentary Tradition in Nineteenth-Century Hungary’, pp. 305–42 below. 202 chapter six the same rights and duties. Civil society was a political order founded on a unifĳied legal system in which statute laws, which applied equally to the nobles, the clergy, the bourgeois and the serfs, replaced the segmentary, ‘barbaric’, ‘feudal’ society based on serfdom, the hierarchy of privileges, legal inequalities, local and provincial customary rights. Equality under the law, personal security, freedom and the right to own property became the new social ideal. The methods used to achieve this were the policies of érdekegyesítés, interest-amalgamation, and of jogkiterjesztés, the extension of rights (the latter turned out to be a confused hybrid). All this sounds like a liberal social reform package—which it was not. The reform served an end: civil society was to be national. As elsewhere in Central Europe and beyond, liberalism and nationalism, although philo- sophically incompatible, appeared politically combined: both served the goal of social integration. Through legislation the reformers planned to create a single Hungarian community of citizens out of legally and culturally diverse social groups. The ország transformed and converted into the Hungarian nation, demanded an autonomous position in the Empire. This programme of nation building was successful before 1848. In early nineteenth century Hungary less than forty per cent of the population was Hungarian speaking. However, the national-liberal program had a wide appeal in the German speaking towns and particularly among smaller ethnic groups like the Jews, Armenians, Zipser-Saxons, Bunjevici and others. But in spite of rapid voluntary magyarisation, the national- liberal program was also fraught with conflict. It put Hungarian politics on a collision course with Vienna. Magyarisation left unafffected the large blocks of Slavonic groups on the periphery which had their own national movements. The diet, overriding strong Croat objections, put through language laws which replaced Latin with Hungarian as the offfĳicial language of the counties, the dicasteria, the diet and the courts. In 1836 Hungarian became the offfĳicial language of statute law. From that year, the laws also provided for the extension of the use of the Hungarian language among the non-Hungarian population, enactments that were as inefffective and unenforceable as they were capable of generating conflicts with the non-Hungarian intelligentsia, which they undoubtedly did. But national conflict was probably unavoidable in multilingual Hungary. What makes the nineteenth century transformation of the country’s constitution so peculiar is that an ever-growing proportion of a hidebound provincial gentry was inclined to accept the abolition of serfdom and the nobility’s prerogatives, including the tax privilege, the principle of equality before the law and even the introduction of political franchise. lajos kossuth and the conversion of the constitution 203

The county gentry accepted the social reforms to the extent that they were subordinated to the national program whose implementation would meet their social aspirations.4 The objective of the national movement was no less than the building of a unitary Hungarian state, under gentry leadership, with representative institutions covering the whole territory of the kingdom and even beyond. Croatia-Slavonia, the Militärgrenze, Transylvania with the Partium and also Dalmatia and Galicia were to be merged with Hungary proper, the ország. The programme to absorb into Hungary both Transylvania and Croatia – two separate regna for centuries – was based on a claim to pre-existing state-right. From the king’s obligation, enshrined in the coronation diploma, to reconquer and reincorporate all lost territories in the kingdom and its adjoined parts, a single regnum, Hungary, derived the claim to ‘repossess’ the other regna. Upon conversion, the inalienability of the crown, appeared as the ‘integrity’ of the ország, and the merger of Transylvania with Hungary as ‘reunion’.5 The last objective appeared politically viable. Transylvania’s Romanians objected to Union, but they lacked political rights. Two out of Transylvania’s ‘Three Nations’ (estates), the county nobility and the Szekels, both Hungarian-speaking, were potential supporters of Union. Only the third ‘nation’, the Saxon universitas, opposed it. By contrast, in Croatia only segments of the nobility, the magnates, the yeomanry of Turopolje and, for a while, Count Zagreb were ‘magyarones’. The bulk of the educated nobility and honoratiores supported the Croat national (Illyrian) party under the spirited leadership of the radical Croat intellectual, Ljudevit Gaj. The Sabor rejected the Hungarian claims: Croatia, for eight hundred years a separate regnum under the Hungarian crown, had never been a part of the ország. The Croat nationalists argued that the terms found in the decreta, partes subiectae and adnexae, in fact meant socia regna. As Hungary and Croatia were ‘associated Lands’, the Hungarian diet did not have the right to legislate for Croatia except on the basis of mutual consent and interest. Indeed, in the past, and even in 1790, the diet had not enforced the majority principle. That was why the Croat Sabor (not the three Croat counties directly) sent deputies to the diet without putting Croatia’s separate position in jeopardy. By the 1840s,

4 Péter, ‘Verfassungsentw.’, pp. 262–65. 5 See the usage of ‘crown’ and ország in Ferenc Eckhart, A szentkorona-eszme története, Budapest, 1941, pp. 268–96. 204 chapter six however, the Hungarian county deputies at the diet were quite prepared to ‘majorize’ minorities, particularly on language issues.6 But the crucial question underlying the language issue was the status of Croatia itself.7 Lajos Kossuth came from a rather humble background in the landless nobility; his father was a solicitor. He started as a brilliant journalist in the 1830s, before playing a major role in the conversion of the constitution. He had a rapid rise in Hungarian politics. The journalist became leader of the Opposition between 1841 and 1847. The key to his success was the ability to be ahead of others on both fronts: social reform as well as national aspirations.8 A strong case could be made that the conversion of the constitution carried out in 1848 was to a large extent based on Kossuth’s policies. Take serf-lord relations fĳirst. The Laws of 1840 introduced ‘optional emancipation’, i.e. permissive arrangements through which the peasant could redeem all servitudes against a one-offf payment to the landlord. Kossuth argued in his Pesti Hirlap that the Law should be implemented whenever the peasant wanted it and could affford it. On taxation he argued that the nobility should start paying tax in the form of the local rates, to the cassa domestica acting as a bank to fĳinance peasant emancipation. On economic policy Kossuth sought to introduce a protective tarifff system against Austrian produce (Kossuth swallowed Friedrich List’s nationalist political economy) in order to develop industry in Hungary. He argued that the towns should have proper representation at the diet on the understanding that they magyarize. As regards magyarization he distinguished the ‘public sphere’ from the ‘private sphere’. Only the former

6 Mihály Horváth described the diet’s behaviour as ‘idiotic’ (eszélytelen), Huszonöt év Magyarország történetéből 1823–1848, 3 vols., Budapest, 1868 (hereafter Huszonöt év) II, pp. 396–98, 406–23, esp. 406 (the enforcement of the ‘resolution’ by one cahmber of the diet was, as the Personalis pointed out, in conflict with lawful custom). 7 The largely defensive Croat constitutional position was contractualist and, like the Hungarian claims, based on historical rights: Coloman, king of Hungary, was elected to the throne by the Croat nobles on the basis of pacta conventa in 1102 AD (an obvious anachro- nism). The Croat territorial claim extended to Slavonia and Dalmatia, with whoch it constituted the ‘Triune Kingdom’. On the Croat diet, see Mirjana Gross ‘Der kroa- tische Sabor (Landtag)’ in Die Habsburgermonarchie 1848–1918, eds Helmut Rumpler and Peter Urbanitsch, Vienna, 2000, VII/2, pp. 2283f; Gyula Miskolczy, A horvát kérdés története és irományai, 2 vols. 1927–28, Budapest, I, pp. 44, 61, 67, etc. (with heavy Hungarian gloss). 8 On the rise of Kossuth in Hungarian politics, see Domokos Kosáry, Kossuth Lajos a reformkorban, 1946, Budapest, esp. Pp. 326f; Istvan Deak, The Lawful Revolution, New York, 1973 (hereafter: Lawful Revolution), pp. 52f. lajos kossuth and the conversion of the constitution 205 should be Hungarian but there was a rider: the defĳinition of ‘public’ was too wide (e.g. it included the ‘new’ economy, railways, banking and so on).9 Kossuth wanted to maintain the county system (against central government—even against responsible government) but the county had to be democratized even though gentry leadership in it was to be preserved. Over the introduction of representative government Kossuth came into conflict with Eötvös and the Centralists whom Kossuth initially opposed. He subsequently changed his mind and the conflict was patched up in 1847. The independent and responsible ministry became a desirable aim though not yet a specifĳic programme in the oppositional declaration drafted by Kossuth and Deák. Kossuth’s rhetoric in setting up a Hungarian State constructed from the three regna of the Hungarian crown was more sweeping than the rhetoric of other politicians. From December 1847 onwards, Kossuth, by then as leader of the Opposition in the diet, repeatedly questioned the very existence of Croatia as a Land.10 He insisted that under the Hungarian Holy Crown a single nation existed: the Hungarian, and there had to be therefore a single legislature. His speeches, made shortly before the revolution, created an atmosphere which later made any cooperation between Croat and Hungarian politicians improbable. In the run-up to the revolution Kossuth was not at all radical on the imperial connection. Instead of any shift to demanding ‘personal union’ with the rest of the Empire (which in the summer of 1848 was to become his chief concern), it was ‘common interests’ and ‘common relations’ between Hungary and the other Lands of the Monarchy that became part of his political rhetoric. This was because Kossuth, and indeed the other Hungarian liberals, now assumed that constitutionalism would be (sooner or later) introduced in all parts of the Monarchy and when that happened tractatus with the monarch would have to be complemented by contacts with the other Lands. The oppositional declaration had

9 See Domokos Kosáry, ‘A Pesti Hírlap nacionalizmusa 1841–1844’, Századok, 77, 1943, esp. p. 382. 10 Kossuth flatly denied that Croatia existed. He argued onj 11 December 1847, and aslo on 7 and 8 January 1848, that the three ‘Croat’ counties in fact constituted Slavonia while Croatia was partly still under Turkish rule and partly governed as Militärgrenze, Kossuth Lajos összes munkái, Budapest, 1951 (hereafter: KLÖM), XI, pp. 382–83, 434–35, 438–40. In late March 1848, that is after Croatia had refused to have any contact with the Battyhány government, Kossuth shifted his position without any explanation and once more recognized Croat nationality and a Croat constitution: speech on 28 March 1848, ibid, pp. 696– 97. As Mihály Horváth observed, by then it was too late; Huszonöt év, III, pp. 301–303. 206 chapter six already alluded to this point which then Kossuth made in his speech at the Circular Session on 22 November 1847 and in his draft Address. The Lower House now declared that ‘the fullest expansion of the Hungarian constitution’ and ‘common status relationships’ could, if Law X of 1790 was respected, coexist and the seemingly divergent interests could be settled ‘in the management of the common imperial state connections’ on the basis of parity.11 We may note that these were the terms and concepts that reemerged in the 1960s – facts ignored by historians who censure Deák for abandoning Hungary’s rights in 1867. Notably, however, while Kossuth in 1847 envisaged tractatus on the ‘common relations’ with the Austrian liberals as well as the Court, Deák in the 1860s entered into tractatus solely with the monarch. Even after the collapse of the July Monarchy in Paris in February, the Kossuth-led diet remained moderate in demanding the expansion of the constitution through the introduction of ‘national government’ but also calling for a settlement (kiegyenlíteni) of the common interests with the other Lands as well as recognizing ‘our legal relations with the empire as a whole’.12 The Hungarian position became more radical after the collapse of the Metternich system. Now the liberal leaders wanted to secure greater autonomy for Hungary than had been envisaged by Kossuth and others even a few weeks earlier. However, well before the collapse of the Metternich system, Kossuth, with an eye to the main chance, had on 3 March dragged the diet away from the politics of small measures. His Address speech had a single theme: the constitution’s kifejtés (Entwicklung), the establishment of national government, a system where the executive power would be responsible to a parliament elected by the nation.13 The draft Address clearly stated that ‘we regard the conversion of the dicasterial (‘collegiá- lis’) governmental system to a Hungarian responsible ministry the essential requirement and guarantee of all the other reforms’. The draft then asked the king to send to the diet members of the Gubernium who enjoyed his confĳidence and who would be responsible (to the diet) for the implementation of the reforms. The Lower House passed the Address on the same day, the Upper House only on 14 March, the day after

11 KLÖM, XI., pp. 316f and 327. 12 ‘az összes birodalom iránti törvényes viszonyaink’, KLÖM, XI, p. 625n c. 13 KLÖM, XI, pp. 619–28 esp. 626. Kossuth’s speech was not about ‘the tasks of the diet’, as generally claimed; its sole subject was the transformation of the system of government. Even the Address was largely about reform of the system of government. lajos kossuth and the conversion of the constitution 207

Metternich fell. By then the situation had changed. The Lower House, under Kossuth’s spell, reported to the counties that it expected ‘the strengthening, the expansion and the transformation of the constitution’.14 Indeed, the fĳirst attempt to transform the monarch and theország’s rights into a liberal legal order, the April Laws, or rather what was read into them in Pest after their enactment, was a more sweeping conversion of the constitution than subsequent attempts and, although it failed conspicuously, it set a benchmark for Hungarian politics that outlasted even the Monarchy. The events in Europe, Kossuth reported to County Pest, ‘had shaken to its foundations the edifĳice of the ancient constitution’, which had proven to be too constricting. ‘Only two pillars remained standing intact and strong enough to bear a (new) capacious structure, the king and the free legislature’15 (a dangerously unstable situation, one would have thought). By free legislature Kossuth meant the Lower House, which was about to become a House of Representatives, rather than the diet as a whole. For the collapse of the Metternich system crushed the authority of the Upper House and deflated even that of the counties. Neither institution ever recovered its former place in the constitution. On 14 March the Lower House declared that even before its reconstruction it could perform its duties only as ‘the representative of the whole nation rather than that of a separate class’.16 The claim of the Lower House to act as a constituent assembly, a declaration of gentry ascendancy over the aristocracy, was realized in the 31 laws of the 1848 decretum. The April Laws broke the back of the old social order based on hereditary right and laid the foundation of the new Hungary. Ország rights were converted into the rights of the Hungarian nation, to which at least those who were given the franchise could claim to belong. In the process the rules of diaetalis tractatus were repeatedly broken. The foundations, improvised, incomplete, and in part temporary, also contained durable rules, notwithstanding the speed with which the whole corpus was pushed through. In the preamble of the April Laws the estates, defĳining the aims of the decretum listed in the fĳirst place the intention to ‘unite the interests, under the Law, of the whole Hungarian people’.17 Yet the Law did not

14 15 March, ibid., p. 659. 15 Móric Szentkirályi and Lajos Kossuth’s report, 16 April 1848, KLÖM, XI, p. 740. 16 Ibid., p. 659. 17 1836–1868 évi törvénycikkek (Márkus edn.) Budapest, 1896, p. 217. 208 chapter six declare the principle of legal equality. Nor was nobility annulled as a legal status. All in all, legal equality, the principle that all individuals possess the same rights and duties, and personal freedom inspired the legislator in 1848; they were elements of the reform program rather than rights established by statute law. The emancipation of over nine million peasants in Hungary and in Croatia from their servile condition was the most signifĳicant, albeit incomplete, step towards civil society taken in 1848.18 Law XI abolished the patrimonial authority of the landlord over the serf. Laws IX and XIII rendered void urbarial obligations and the tithe. The private landlord was to be paid compensation out of public funds to be determined by the new parliament; the tithe went without compensation. Law III established ‘independent and responsible’ government. While the authority of the Hungarian ministry may not have been properly defĳined, the April Laws nevertheless created a coherent system of government in so far as this was politically feasible in the spring of 1848. The chief reason why the April Laws did not last lay not in the Law itself, incomplete and in places ambiguous though it might have been, but in the fact that the partners, after its enactment, embarked on policies governed by irreconcilable aims. Kossuth and Prime Minister Batthyány read ‘personal union’ into the April Laws. The so-called ‘personal union’, as understood by Kossuth, was a fĳig leaf for the claim to a separate Hun garian State. The Austrian response was the claim to the existence of a Gesamtstaat, read into the Pragmatic Sanction, which then justifĳied the demand for the revision of the April Laws.19 The new rival conceptions of the State destroyed the constitutional settlement. No constitutional reform should be expected to solve intractable political conflicts. After Radetzky’s victory in Italy the Austrian Government and the Court felt secure enough to embark on a policy of ‘restoring the supreme

18 Over half of the serfs possessed urbarial land, but most of them had at least a household plot. The Law lifted obligations only on urbarial land. János Varga, A jobbágy- felszabadítás kivívása 1848-ban Budapest, 1971, pp. 167, 339–40. The Transylvanian diet likewise abolished urbarial obligations and the state was to compensate the landlord; Laws IV, V and VI 1848 of Transylvania. 19 The Denkschrift prepared by Staatsrat Pipitz for Ferdinand on 27 August read ‘Einheit in der obersten Staatsleitung’ into the Pragmatic Sanction, see László Péter, ‘Old Hats and Closet Revisionists: Reflections on Domokos Kosáry’s Latest Work on the 1848 Hungarian Revolution.’ The Slavonic and East European Review, 80, 2002, pp. 296–319, (309, n. 48). lajos kossuth and the conversion of the constitution 209 government’ in the Monarchy and, as far as Hungary was concerned, they were prepared to assert their constitutional claims by armed force. In the crisis in September the Batthyány government disintegrated; Kossuth became a parliamentary dictator. It was the rival conceptions of state that destroyed the monarchic union of Lands on which the Habsburg dynasty had founded its empire. The intractable constitutional conflict turned into war. After fĳighting began between the Imperial and the Hungarian revolutionary armies, Ferdinand abdicated on 2 December. His successor Franz Joseph soon cleared away the constitutional rubble left over from 1848 as well as the precepts of Hungary’s ancient constitution. Franz Joseph’s Manifesto and the announcement of the Imperial Constitution by octroi20 of 7 March 1849, rather than after tractatus of any sort, opened a new chapter in Hungary’s relationship with the empire. The new monarch, by alluding to his 2 December Manifesto, declared that the guarantee of the future lay ‘in der Wiedergeburt eines einheitli- chen Österreich’ – a program based on the presumptive claim that the Habsburg Monarchy constituted a single State.21 In contrast to the Pillersdorf Constitution the new constitution applied to all Kronländer of the Austrian empire, including Italy and Hungary. Centralisation was the cornerstone of the constitution. There was to be common citizenship, a single legal system and central parliament (in addition to a local diet for each crown Land). The constitution broke up the kingdom of Hungary. It severed the connections between Croatia-Slavonia, Transylvania and Hungary proper and it carved out the Serbian Vojvodina as a separate territory. Each became, like Hungary, a separate Kronländ. Section 71 emasculated the April Laws, without formally rescinding them, and ended Hungary’s special position in the empire. Die Verfassung des Königreiches Ungarn wird insoweit aufrecht erhalten, dass die Bestimmungen, welche mit dieser Reichsverfassung nicht im Einklange stehen, ausser Wirksamkeit treten.22

20 ‘aus freier Bewegung und eigener kaiserlicher Macht’: Edmund Bernatzik, Die öster- reichischen Verfassungsgesetze, Vienna, 1911, p. 148. 21 Ibid. The term ‘Gesammt-Monarchie’ had already appeared on 2 December when the monarch hoped that his policy would lead to the ‘Verjüngung der Gesammt-Monarchie’. The context in all these cases is prescriptive. 22 Sections 1, 72–74, ibid., pp. 150, 159–60. Section 75 restored the position of the Grenze. 210 chapter six

Although this constitution was not fully implemented anywhere in the empire before its cancellation in 1851 (and for Hungary it largely remained a blueprint), its announcement afffected the course of Hungarian politics. It enabled Kossuth and the national radicals on 14 April 1849 to put through the rump parliament at Debrecen, where it had moved because of the advancing imperial army, a resolution that Hungary was an independent European State.23 This move was a direct response to the imperial announcement of 7 March.24 Undoubtedly there were other factors. Görgey and the other generals’ brilliant spring campaign leading to the recapture of the capital boosted morale. Also, Kossuth, quite unrealistically, hoped that an ‘independent’ Hungary would attract foreign support. Further, by forcing parliament to burn its boats, Kossuth successfully wiped the floor with the ‘peace party’.25 Based on the House’s resolution of 14 April, ‘The Hungarian Nation’s Declaration of Independence’ was enacted on 19 April.26 It began with a general statement:

We, the National Assembly legally representing the Hungarian State,27 in this solemn declaration – whereby we restore Hungary to its inalienable natural rights together with all the parts and territories belonging thereto, installing it amongst the ranks of the autonomous, independent states of Europe and declaring the perfĳidious House of Habsburg-Lorraine dethroned before God and the world – recognise it as our moral duty to announce in public the reasons for this decision, so that it may be known throughout the civilized world… The declaration went into history, listed the nation’s grievances and the violations of Hungary’s independence enshrined in Article X of 1790. It gave a blow by blow account of the House’s ‘perfĳidious acts’ in 1848 (not sparing even Palatine István), ending with the announcements of 7 March 1849. The four enacting clauses at the end of the document declared Hungary to be an independent European state whose

23 KLÖM, XIV, pp. 873–87. 24 The Declaration itself refers to the Manifesto of 4 March, ibid., p. 908. 25 Zsigmond Kemény and others doubted if the majority of the rump parliament would have passed the resolution after any debate (which they did not have), Gusztáv Beksics, Kemény Zsigmond, a forradalom s a kiegyezés, Budapest, 1883, pp. 114–21. 26 KLÖM, XIV, pp. 894–912. 27 ‘magyar álladalom’, the new term, occurs three times in the text. lajos kossuth and the conversion of the constitution 211 territorial integrity was inviolable; ‘deposed, debarred and banished’ the Habsburg House in the name of the nation; declared peace with all neighbours; and left the determination of the form of the State to the following parliament and appointed ‘by unanimous acclamation’ Lajos Kossuth as Governor-president.28 The constitutional import of the Independence Declaration went beyond the deposition of the dynasty. For the fĳirst time the claim to statehood, based on historic right, was unambiguously expressed in an authoritative document. Hungary, not just a Land, possessed all the attributes, external as well as internal, of an independent European state. The new term álladalom, soon to be shortened to állam in political discourse, expressed the claim to Hungary’s new constitutional status.29 Kossuth was closely identifĳied with the new view,30 and his influence on the modern Hungarian national outlook has been more enduring than that of any other politician. The Gesamt-Monarchie and the magyar álladalom were political programmes based on rival claims to statehood. Both trampled on centuries- old traditions although they were dressed up in historic guise. The state in the eighteenth century meant the institutions based on monarchic rights; the ország-rights existed separately. Neither the court nor the ország claimed to possess a unitary, legally unrestricted, all-ebracing system of public law. Nonetheless, this was the claim that the court and Hungary both clearly asserted during the revolutions. Neither had any chance of being realized.31 In relation to the Gesamt-Monarchie it took a decade to fĳind this out. The same truth about the magyarálladalom became obvious by 1849 when Hungary’s leaders tried to attain the impossible. All the facts were against them, yet facts hardly ever shape history—ideas do. It is ideas not facts, that men’s behaviour.

28 ‘Kormányzó elnök’: ibid., p. 911. 29 On the etymology of ‘status’, ‘álladalom’ and ‘állam’, see Ferencz Schedel [Toldy], Törvénytudományi műszótár, Pest, 1847, 2nd ed., p. 433; Loránd Benkő; (chief ed.) A magyar nyelv történeti-etimológiai szótára, Budapest, 1967, I, p. 137. 30 Notably, not the liberal Centralists, who mostly went to ground after the September crisis, but the national radical Kossuth, who had earlier sneered at ‘State theories’ when they theratened county autonomy, became most closely identifĳied with the concept of the Hungarian State. 31 Zsigmond Kemény clearly understood this in 1851. In his Még egy szó a forradalom után he denounced the two state theories as pedantic, arrogant and impractical: Baron Zsigmond Kemény, Forradalom után, Budapest, 1908, p. 397. 212 chapter six

Kossuth, a nagy száműzött, the ‘great exile’ in Turin after 1867, mourned for the eclipse of the ‘Hungarian State’ which he, its last representative, tried to ‘restore’ in 1848. Was he truly its last representative, rather than its creator? Did the engineer of the constitutional conversion from the ország to the state really believe this? Leaders sometimes harbour misconcep- tions about their own contribution. CHAPTER SEVEN

THE DUALIST CHARACTER OF THE 1867 HUNGARIAN SETTLEMENT1

‘A constitution’, declared Napoleon laconically, ‘should be short and ambiguous’. Had he lived long enough to witness the enactment of the Hungarian Settlement, enshrined in Law XII of 1867,2 he should have been satisfĳied if not with its length at least with its ambiguities and lacunae. The difffĳiculties of a clear interpretation were compounded by the discrepancies and contradictions between the Hungarian Settlement Law, and the so-called Delegations-Gesetz3 of the imperial Dezember-Verfassung enacted in the same year. In the future, these two instruments, the Ausgleich laws, were together to order the relationship between Hungary and the Habsburg Empire in a dualist system. The term ‘dualist’ seemed appropriate because, in addition to the common, formerly imperial, institutions, ‘the kingdoms and lands represented in the Reichsrat’ (called Cisleithania) and the lands of the Hungarian crown (called Transleithania) each had a separate legal system and government. The obscurities and contradictions in the two laws provided ample fodder for divergent and contrary interpretations by generations of politicians with conflicting purposes in both halves of what in 1868 became the Austro-Hungarian Monarchy. The jurists were as divided as the politicians: manifestly along national lines. Austrian German, Czech, Hungarian and Croatian jurists were at loggerheads on basic questions of interpretation. Even within a single

1 I am grateful for comments I received on the manuscript from my colleagues Lóránt Czigány, Peter Sherwood, Trevor Thomas, and, particularly, from Robert Pynsent. 2 Hereafter the Settlement Law or the Law. See D. Márkus’s edition of Magyar Törvénytár, 1836–1868 (the Laws of Hungary, 1836–1868), Budapest, 1896, pp. 325–44. This edition is used for all references to Hungarian statutory laws. Strictly speaking, the whole corpus of the 12 laws, sanctioned on 12 June and on 28 July and enacted as a decretum, from the Settlement. 3 The proper title of the law is: Gesetz betrefffend die allen Ländern der österreichischen Monarchie gemeinsamen Angelegenheiten und die Art ihrer Behandlung. (E. Bernatzik, Die österreichischen Vervassungsgesetze, 2nd ed, Vienna, 1911, p. 439, fff.) I shall use the term ‘Ausgleich’ when I mean both the Hungarian Settlement and the Delegations-Gesetz. ‘Hungarian Settlement’, depending on the context, could mean the Settlement Law, or, more properly, the fĳirst twelve laws of Hungary enacted in 1867, or, the Settlement as a political rather than a legal fact. 214 chapter seven national group, no consensus on principles emerged among jurists while the Ausgleich laws were in force between 1867 and their overthrow in 1918. Since the break-up of the Habsburg Monarchy, historians have either been nonplussed by the riddles of these laws and largely ignored discussion of constitutional questions, or have merely reiterated arguments found in legal and political works written before 1918. The legal and constitutional questions left to posterity by partisan jurists cannot be solved today. Rather than make what amount to normative inquiries into the laws of the Dualist system long after it has disappeared, normative questions should be discarded altogether if one is to explore the ideas the law-makers might possibly have had in 1867. It is feasible to re-construct the legal maxims and principles to attempt to under-stand better the 1867 Settlement’s historical character rather than to try to establish its juridical nature. So much may be plainly true. The jurists’ knowledge of the Settle- ment is, however, not merely unhelpful: it is an obstacle to historical reconstruction. Juristic concepts have been transmitted from the Dualist era to the present by historians who implicitly accept the assumptions of the so-called modern dogmatic law school, an outlook that became general among the Monarchy’s jurists during the 1880s. The new outlook owed much to the jurisprudence of Imperial Germany, in particular, to the works of Law Professor Paul Laband. The jurists subjected the 1867 Ausgleich laws to a strictly statutory interpretation with the aim of discovering a valid constitutional law. The analysis of the statutes rested on two cognate postulates: the State, assumed to be the repository of all public law, and its corollary, legal sovereignty, understood as legally unlimited state power. Within this new modernistic conceptual frame the laws of 1867 were construed to be a Settlement or Compromise between Austria and Hungary. The jurists sought to establish whether the Dualist state was a unitary or a composite state, and whether over and above the two states of Austria and Hungary there existed a super- state (Gesamtstaat or Staatenstaat) by trying to locate legal sovereignty in the Monarchy. These concepts, the jurists’ vocabulary of the State, had a lasting influence on historians, and this influence has distorted their perception of the 1867 Ausgleich. I hope to remove some of these distortions. I shall argue that the modernistic terms and assumptions became common currency in Hungary some twenty years after the 1867 Settlement had been enacted, and that there is no solid evidence that the authors of the dualist character of the 1867 settlement 215 the Settlement, Ferencz Deák and the vast majority of his supporters, or Deák’s negotiating partners, including Franz Joseph, thought in terms of the State as the repository of all public law in 1867. Nor did the negotia- tors, i.e. the lawmakers, think in terms of legal sovereignty. Rather than being conceived in modern legal terms, there is overwhelming evidence that the Hungarian Settlement, when it was made, rested on an old, legally split, i.e. dualistic, view of the body politic according to which the Land, the ország of Hungary, and its monarch coexisted as two distinct repositories of law, or ‘subjects of right’. Legally and constitutionally speaking, it was not Hungary as a State that settled up with Austria: the fĳirst twelve laws of Hungary of 1867 enacted an agreement between the ország, Hungary as a Land, and its monarch, the Habsburg crown. Subsequently the other Lands of the Habsburg crown also became a party to the agreement. Deák ‘derived’ the dualism of Austria and Hungary from the mutual rights and obligations that had legally bound the Habsburg crown and the ország to each other. The legally dualistic Hungarian constitution and a monarchic union or empire created in its own image rather than a legal conception of the State should be considered as the underlying assumption on which the Dualist constitution rested when it was established in 1867. The aim of this essay is to account for the genesis of the Hungarian Settlement and its bearing on the Dezember-Verfassung of 1867 as well as on the union of the Lands of the Monarchy. A review of the Delegations- Gesetz and other Reichsrat laws is not necessary for my purpose. I shall examine briefly the ideas of constitutional dualism, the precursors of 1867, before trying to reconstruct the connections between Hungary, its monarch, and this monarch’s other Lands as they were reformulated in the 1867 Settlement Law. My aim is to reconstruct the Hungarian law as its authors saw it in 1867; this involves dispensing with the juristic knowledge or gloss which through conflicting interpretations and acrimonious disputes accrued to the public laws of the Monarchy after 1867. The reconstruction will not clear up the ambiguities of the 1867 Settlement Law; it may even reveal new ones. It may, however, show that many of the insoluble legal problems and celebrated puzzles which kept a large army of jurists busy before 1918 were of those jurists’ own making: they had a good deal less to do with the Settlement than is generally thought. The Settlement Law may have made more sense in 1867 than posterity has been prepared to admit, and Napoleon might not, after all, have been so pleased with it. 216 chapter seven

The Quasi-Legal Character of Politics in the Monarchy and the Gloss on the 1867 Settlement

The jurists in the Monarchy had an unenviable problem. Ambiguity, or at least uncertainty, of what the public law of the whole empire was existed not as a temporary but a permanent and structural condition. The empire, an aggregate of political communities, Kingdoms and Lands, was brought under a single ruler by the Habsburg dynasty. The legal system and the political institutions remained fragmentary in the Habsburgs’ empire, which failed to develop a single public law and still less a constitutional system that was recognised as such by all. The Lands and Kingdoms were held together by institutions that rested on the rights of the monarch. There was no public body that could authoritatively determine what the Monarchy’s public law was. There was no High Court or any other constitutional arbiter with properly defĳined powers which was competent to take decisions in disputed cases. There was not even a procedure laid down for resolving the sorts of conflicts that occur so often in the lives of states. The fĳinal arbiter in the empire was, in principle, the monarch himself. His word was fĳinal in disputes in that he frequently settled conflicts politically without resolving juridical points. On constitutional matters the monarch did not speak with one voice to all the empire either before or after 1867. The authority of the monarch was limited in the empire by diffferent customs, laws and conventions in the various Kingdoms and Lands. In Hungary, monarchic power flowed through the traditional channels recognised both by custom and enacted law. The sovereign’s powers, however, were nowhere defĳined; they were largely customary. And, at the highest level of public afffairs, the entire empire was governed on the basis of the monarch’s customary personal rights rather than by stable and coherent public laws. Not unexpectedly in the light of this, the interpretation of public rights in the Monarchy spilled over into politics. Politics in the empire were quasi-legal: ever since the Vormärz—the years when the demand for constitutional government appeared— political debate had been as much about how the existing laws ought to be interpreted as about how they ought to be changed. Austrian German, Czech, Hungarian, Croat and other national party manifestos and programmes, parliamentary debates, the daily press, periodicals, and political tracts were replete with legal interpretations of the existing laws in addition to plans to reform them. Leading politicians, especially Hungarian, habitually made declarations, and published political articles the dualist character of the 1867 settlement 217 and tracts and even lengthy books in which they interpreted constitutional law. The law professor’s lectern was placed next to the politician’s hustings. The latter’s passionate and often vigorously expressed interest in legal interpretations was matched by an inordinate number of textbooks and monographs published (especially, again, in Hungary) by university and law schoolteachers. Their works, too, were largely polemical, and they dovetailed into political programmes. Before, as much as after 1867, the juridical nature of the connections between the various Habsburg domains, the Lands and Kingdoms held together by the dynasty, was at the centre of the politicians’ and jurists’ debates. In the Vormärz, the demand put forth by the educated classes in Vienna, Prague and Pest for constitutional government unavoidably sharpened the interest in the question of whether the empire consisted of a mere conglomerate of states held loosely together by the dynasty, or whether the kingdoms and lands constituted a closer union in some legal sense: whether Hungary, or Bohemia, was tied to the empire in a ‘personal’ union or in a ‘real’ union.4 In 1848–49 and during the constitutional experiments that began after Solferino in 1859, the question of whether the empire should have a Centralist, a Federalist or a Dualist constitution was at every turn being afffected by arguments concerning the juridical nature of the union. After the empire’s Dualist reorganisation, interest shifted to the question of whether the enactment of the 1867 Settlement changed the nature of the union: whether Hungary had left, remained in, had entered the ‘empire’, or had never belonged to it; whether the empire was a unitary or a composite state and, if it was the latter, whether it should be classifĳied as a federal state or a confederacy, i.e. a Bundesstaat or a Staatenbund; whether dualism and the principle of parity between the two parts of the empire had any precise meaning in law. After the 1870s the question concerning the juridical nature o1 the Monarchy was put in terms of the State concept: whether the Settlement created (recognised?) the dualism of two legally independent states: ‘the empire of Austria’ and the ‘kingdom of Hungary’; or whether there existed a ‘super- state’ over both Austria and Hungary. Interest focused on the whereabouts of legal sovereignty in the Monarchy. Merely to list the divergent positions behind which Austrian Centralists, Federalists, Hungarian 67ers, and Hungarian and Croat Independentists managed to barricade themselves with the help of modern juristic vocabulary would fĳill a

4 The German jurist Johann Pütter introduced the distinction in the literature in 1770. 218 chapter seven volume or more. Foreign observers held views as diverse as those found inside the Monarchy and occasionally outsiders injected new terms into the debate. Gladstone argued the case for Irish Home Rule in the British Parliament in 1886 by reference to the relationship of Norway to Sweden and of Hungary to the empire.5 Other observers, however, thought either that the Hungarian Settlement had not provided as wide an autonomy as was meant by ‘Home Rule’ or that it had provided something wider than that. The grounds on which politicians and jurists argued out points were not at all confĳined to the interpretation of the 1867Ausgleich laws. Before 1918 constitutional claims were habitually based on the so-called historic right argument, a tradition which historians have not entirely abandoned since. Innovation made by reference to pre-existing rights was a device commonly used by jurists in the Monarchy well before the nineteenth century. In fact, the old attitudes to law were never supplanted by the legal dogmatic method: modern legal dogmatism and historic right arguments went hand in hand. Constitutional claims were gleaned from medieval decreta, old dynastic contracts, election conditions, royal oaths and inaugural certifĳicates. The promulgation of the Pragmatic Sanction in 1713 (for Hungary, 1723), the laws for Hungary in 1790 and in 1848, the October Diploma of 1860 and the February Patent of 1861 were worked over again and again. Likewise, the assumption of the hereditary title of the Emperor of Austria by Francis through a patent issued in 1804 and his renunciation of the title of Holy Roman Emperor two years later were contested subjects. After the 1867 Settlement, Franz Joseph, in a rescript to ‘Baron Beust’, established his own new titles, the short version of which was: ‘Emperor of Austria and Apostolic King of Hungary’. Likewise he ordered that the entirety (Gesamtheit) of the lands ‘constitutionally united’ under his sceptre be referred to alternately as the ‘Austro-Hungarian Monarchy’ and the ‘Austro-Hungarian Empire’.6 Neither this change, nor those that followed in 1889 and after introducing ‘imperial and royal’ into the names of institutions under the control of the monarch, yielded answers to the enigma of the Monarchy’s juridical nature. Notwithstanding historic right arguments, whether or not a coherent view of the Dual Monarchy’s legal structure could be arrived at depended ultimately on the possibility of discovering the juridical nature of Ausgleich

5 Gladstone, in presenting the Bill on Irish Home Rule to Parliament in 1886, Hansard’s Parliamentary Debates, IIIrd Series, CCCIV, (8 April 1886), col. 1046–48. 6 Bernatzik, Die österreichischen.., p. 52. the dualist character of the 1867 settlement 219 laws themselves. The fog surrounding this question was, however, as dense, the failure of modernistic interpretations as complete as on other issues. Some jurists argued that the Settlement consisted of parallel, politically co-ordinated laws, enacted by two legally independent and sovereign states, which were otherwise, legally, unconnected; that in principle, either the Reichsrat7 and the Emperor, or the Hungarian legislature, king and parliament together, were, without any reference to each other, fully competent through the ordinary process of sovereign legislation to revise or repeal any part of either the Delegations-Gesetz or Law XII of 1867. Other jurists insisted that the 1867 Ausgleich laws, or parts of them, had to be considered as a binding agreement or contract by both Austria and Hungary, and that the Settlement could be lawfully revised or repealed only by common consent rather than by either party at will. Since, however, consensus could never be obtained among politically sharply divided jurists on the Monarchy’s juridical nature, attempts to establish what kind of interdependence the law may have assumed were bound to fail. Nor was there much hope of ascertaining what kind of co-operation, in case of revision, the law would have expected from the (putative) partners of the 1867 Settlement. Until 1918 it remained unclear whether the Ausgleich laws were to be regarded as a bilateral internal state contract, a set of entirely independent statutory laws, an international treaty enacted by two sovereign legislatures, and binding upon each party only as such, or some goulash of all these elements. In fact, all these possibilities were amply explored by jurists and publicists whose works ran into easily four fĳigures during the last half century of the empire. Such was the division among the jurists that no consensus could be reached even on the identity of the ‘parties’ to the Settlement. Neither the names of offfĳices, the monarch’s titles and coats of arms, nor even the offfĳicial style of the Monarchy itself ever acquired forms which won general acceptance.8 Arguably, the great divider which led to the paralysis into which the interpretation of the Monarchy’s public law permanently fell, was political nationalism. The roots of the competing nationalisms were diverse: nationalism was sometimes predicated on the Estates of a particular land,

7 As the Delegations-Gesetz was not termed a Staatsgrundgesetz, it did not have the formal protection accorded to the parts of the Dezember-Verfassung enacted as ‘fundamental laws’, Bernatzik, Die österreichischen.., pp. 309, fff. 8 The changes in the offfĳicial style in 1868 and after were not even published in the Reichsgesetzblättern (Bernatzik, Die österreichischen.., p. 53). They were offfĳicially published in Hungary in D. Márkus, Magyar Közjog (Hungarian Constitutional Law), Budapest, 1907, pp. 323, 355. 220 chapter seven at other times on a social class, at other times on a cultural community based on language or religion or both. The arguments the champions of national causes deployed were again diverse. The jurists sometimes invoked historic right, at other times borrowed arguments from the natural law school, at other times, under the influence of the dogmatic law school, speculated on the nature of the State. Frequently, they mixed dif- ferent arguments according to the requirements of their political conclusions. Austrian German legal literature was more erudite and showed greater diversity than its rivals. However, the German jurist’s zeal to discover a Gesamtstaat in some form, over and above the dominions, and elements of an imperial sovereignty (above ‘Hungary’ and ‘Austria’) in the 1867 laws, was as much an exercise to shore up political claims as was his opponents’ insistence on Bohemian state rights, or on the legally intact sovereignty of the Hungarian, or Croat, state. A historian today may be aware of this, yet still too close to the particular national claims expounded by jurists before 1918; he may hold on to some ‘valid’ interpretation of the Monarchy’s law and it is not my intention to argue him out of such an attitude. Nevertheless, nationalistic, ‘tribal’ interpretations are suspect today. The historian is likely to think that the failure of the jurists to agree on any one interpretation of the public laws is to be expected precisely because of the intense national rivalry within the Monarchy. But nationalism in itself, although a necessary condition of what needs to be explained, cannot as such provide a sufffĳicient explanation. National movements take many forms in the modern world: sometimes they are revolutionary; sometimes nationalists demand reform of the laws. The question worth asking is why nationalism took the particular form it did in the Monarchy and why it involved the interpretation of the existing law with such tenacity. This tenacity was a dominant feature of Hungarian politics: the demand to change the law in order to attain national desiderata was never as strong in the Hungarian parliament as the appetite for constitutional innovation by reinterpreting the law already on the statute book.

The Statutory View of Public Law

The fĳirst step after the conclusion of the Settlement towards a new constitutional outlook was the appearance of a ‘statutory view’ which regarded public law as essentially parliament-made rather than rooted in the dualist character of the 1867 settlement 221 customary right. Antal Csengery, Deák’s right-hand man in the drafting of the Settlement Law, insisted in parliamentary committee sittings on a strictly statutory interpretation of the law as early as 1867.9 Dezső Szilágyi established a political reputation by construing the sense of Law XII as narrowly as possible in speeches in the House of Representatives in the late 1870s.10 The corollary of the statutory view was the so-called Szilágyi thesis which he put forward as Minister of Justice in a prepared statement in 1893: the Settlement was not a contract between Hungary and Austria in any legal sense, but rather a ‘simple law’ that could be amended just like any other law created by an independent act of the monarch and parliament, the two factors in which legislative power was vested in the Hungarian State.11

The Concept of the State

Pari passu the acceptance of the statutory view, Hungarian public law was predicated on the állam (the State) the legal concept which came to supplant the ország. The April Laws of 1848 and the Declaration of Independence issued at Debrecen in the following April were important antecedents in the changeover from ország to magyar álladalom (the Hungarian State).12 But after Világos, the imposition of the Centralist Stadion Constitution on all domains of the Habsburg monarch and its replacement by an equally Centralist bureaucratic regime in 1851 made the concept of állam as dangerous for Hungarian constitutional liberties

9 See below, p. 227 and note 111. 10 E.g. Szilágyi’s interpretation of the King’s right to prorogue parliament (29 June 1877), of §61, Law XII of 1867 concerning the renewal of the Customs Alliance, (28 January 1878) and of the administration of Bosnia (11 November 1879), Képviselőházi napló (Journals of the House of Representatives), 1875–78, IX, p. 332, XIV, p. 259, and ibid., 1878–81, VIII, pp. 74 fff. 11 On 12 October 1893, Képviselőházi napló, 1892–96, XII, pp. 116 fff. Szilágyi’s ‘prepared statement’ was made during the debate in the House over Franz Joseph’s ‘Kőszeg speech’ (17 September 1893) in which the king himself warned against attempts at undermining the 1867 Settlement. (A ‘bilateral agreement’ [kétoldalú mgállapodás], Gróf Tisza István képviselőházi beszédei [Count István Tisza’s speeches in the House of Representatives], ed. J. Kun, Budapest, 1930, vol. I, pp. 270–71.) Szilágyi applied the statutory view to the Pragmatic Sanction of 1723 and the 1839 Hausgesetze in the debate on the bill concerning Archduke Ferdinand’s morganatic marriage declaration on 6, 12 and 13 November 1900. (Képviselőházi napló, 1896–1901, XXX, pp. 266–67, 270, 363–64 and 391. 12 D. Pap, Okmámytár Magyarország függetlenségi harczának történetéhez (Documents on the Hungarian War of Independence), 1869, II, pp. 417–18. 222 chapter seven as birodalom (empire) or even császárság (empire, emperorship). For the adjectival epithet of all these terms throughout the 1850s had to be ‘Austrian’. Deák based Hungary’s constitutional claims on ország rights, and spent the best part of his political career rejecting the idea that Hungary had ever been part of, or was ever going to accept being part of, an osztrák birodalom (Austrian Empire). Yet he emphatically defended the view, after 1867 as well as before, that Hungary together with the other Lands of the monarch formed a birodalom.13 This was without question, the view of the vast majority in parliament in the 1860s, and of the Andrássy Cabinet. The Hungarian Minister President had argued for the change in the Monarchy’s offfĳicial style that was fĳinally introduced in November 1868 on the grounds that the proposed new form expressed the ‘állami összetartozandóság [Zusammengehörigkeit] of the two halves of the empire’.14 However, the use of állam to denote all Lands under the Habsburg sceptre did not become widespread in Hungary after 1867 except in compound nouns, as for instance államfél (state-half) and két államterület (two state territories). Within a few years following the Settlement the use of magyar állam, denoting the competence assigned to the government of Budapest under the Settlement, became general. Insofar as the two governments of the Dualist monarchy were to deal with each other on equal terms they appeared as két állam (two states). The legal dogmatic view of the State became fĳirmly established in the course of the parliamentary debates that followed the Eastern crisis and the occupation of Bosnia by the Monarchy under the Treaty of Berlin in 1878. Again, Szilágyi played a prominent role. In his speeches, magyar állam, as a subject of public law, embraced foreign relations and the army: subjects that involved the monarch’s reserved prerogatives. At Szilágyi’s prompting the President of the House rebuked the Chairman of the Judicial Committee who during the budget debate in January 1885 referred to ‘Austria that forms with us a single Monarchy’. ‘I am obliged to declare, as the President of one of the Houses of Hungary’s parliament that the Honourable Member is mistaken’ (loud, general and prolonged approval). ‘According to our public law’, the President went on, ‘the Austro-Hungarian Monarchy does indeed exist but it (the term) stands for the Austrian empire and the Hungarian empire…’ (general approval). Szilágyi rose: he explained that ‘monarchy’ did not mean ‘empire’ in the strict sense of

13 See below p. 253 and note 90. 14 See note 91. the dualist character of the 1867 settlement 223 the latter term in which it was an equivalent of ‘the State’. ‘Monarchy means the connection which, by virtue of our constitution, exists between the two separate states of the Monarchy’ (general approval). Then he went into a fuller explanation.15 The claim that the Settlement had established links between two legally independent states became communis opinio in Hungary in the 1880s.

The Concept of Legal Sovereignty: The Doctrine of the Holy Crown

The acceptance of the assumption that the Hungarian State was legally entirely separate led to the related assumption that legislation was legally unlimited (that is, parliament and the king jointly possessed legislative sovereignty). Count Albert Apponyi, a confessed follower of Szilágyi in matters of constitutional principle, played a distinguished role in pushing the latter’s doctrine further. He applied ‘the postulate’ of state sovereignty to the common army: as Hungary was a fully sovereign State, Apponyi argued in 1886 during the debate in the House about the Jansky Afffair, ‘the Supreme Commander of the Army can be only the constitutionally crowned king of Hungary’.16 Apponyi then inferred the demand from his postulate that the spirit of the army ought to be in harmony with the spirit of the Hungarian constitution. Within three years Apponyi and his party, in the course of the Great Defence Debate of 1889, explicitly rejected the view that the reserved rights of the monarch were outside the legal competence of the Hungarian legislature.17 The Great Defence Debate was a watershed in the history of the 1867 Settlement.18 Teofĳil Fabiny, Minister of Justice in the Tisza Cabinet, who had manfully defended the monarch’s army reservata, had been forced out of offfĳice even before the Defence Debate in parliament

15 Sándor Körösi, Chairman of the Judicial Committee, spoke on 29 January 1885; Imre Szalay (Independence Party) attacked the speech because of its terminology. On the following day Kőrösi repeated the offfensive phrase for which he was rebuked forthwith by the parliamentary Chairman, Tamás Péchy. Szilágyi spoke later on the same day.. (Képviselőházi napló, 1884–87, III, pp. 315, 319, 336–37, and 339.) The word ‘state’ was explained on the basis of Article X of 1790, according to which Hungary propriam habens consistentiam, et constitutionem. Márkus’s edition of the laws of Hungary (Magyar törvény- tár, 1740–1835), Budapest, 1901, pp. 158–59) translated the phrase as ‘saját állami léttel és alkotmánnyal bíró’ (having state existence and a constitution). 16 11 October 1886 (Képviselőházi napló, 1884–87), XIII, p. 188 fff. 17 2 March 1889, ibid, 1887–92, IX, p. 176. 18 László Péter, ‘Angyal Dávid a történész’, introduction to Dávid Angyal, Emlékezések, London, 1971, pp. 19–20, 27n, p. 39fff, p. 109. 224 chapter seven was over.19 His successor was none other than Dezső Szilágyi. The debate undermined Kálmán Tisza’s authority; he could not save his government. The stability of Hungarian politics gave way to instability generated by the politics of creeping constitutional radicalism. The transformation of Hungarian jurisprudence was part of this change. Ernő Nagy, professor at the Nagyvárad Law School, and later the University in Budapest, was the jurist who fĳirst applied Laband’s dogmatic method to the interpretation of Hungarian constitutional law.20 In the fĳirst edition of his textbook published in 1887 Nagy discussed public law in terms of state sovereignty.21 Somewhat inconsistently, however, he gave a traditional account of the monarch’s shared and reserved sovereign rights.22 Nagy changed his mind in the second edition of his textbook published, as it was, after the Great Defence Debate, in 1891.23 Since 1867, he now argued, the division between the shared and the reserved monarchic rights had disappeared: statutory law, i.e. the expression of the sovereign will of the state, was the legal basis of all monarchic rights.24 Győző Concha, professor of Constitutional Politics at the University of Kolozsvár, who moved to Budapest in 1892, criticised Nagy’s view, and in the course of the debate between the two jurists the doctrine of the Holy Crown was constructed.25 Nagy, wrote Concha, ‘in order to make Hungarian public law appear modern and juristic had sacrifĳiced its spe- cifĳic Hungarian character’. Nagy, his critic claimed, failed to grasp that the reserved monarchic rights had always (before 1867 and after) difffered from the shared rights in that the former had been exercised by the king through the government without involving parliament. But parliament and the king were, as they had always been, competent to legislate on any subject, including the reservata. Fabiny, as Minister of Justice, ‘made a

19 Fabinyi spoke twice: on 5 and 6 March 1889 (Képviselőházi napló, 1887–92, IX, especially pp. 215 and 249.) He resigned his post on 22 March, and left offfĳice on 9 April. 20 I. Csekey pointed out the influence of Laband on Nagy and that in expounding Hungarian public law Nagy ‘had broken completely new ground’ (‘Nagy Ernőés a magyar közjogírás új iránya’ [Ernő Nagy and the new course in Hungarian jurisprudence], Magyar Jogászegyleti Értekezések, XVII, 1926, pp. 143, 168 n. 4, 169.) The fĳirst edition of Nagy’s textbook (see next note) was praised by G. Schvarcz, a leading member of the Moderate Opposition, in the House. (Ibid, p. 169 n. 2.) 21 Ernő Nagy, Magyarország közjoga (államjog) (The Public Law of Hungary), Budapest, 1887. 22 Ibid, p. 152. 23 The date given in the Preface to the second edition: October 1890. 24 Ibid, 2nd ed, Budapest, 1891, p. 171. 25 It is, in my view, a mistake to attribute, as many historians do, the doctrine of the Holy Crown a theory of Hungarian state sovereignty, to Imre Hajnik. the dualist character of the 1867 settlement 225 mistake’, remarked Concha, when he denied this.26 In Britain the monarch’s prerogative was converted to become the nation’s; in Hungary the king’s reservata became the rights of the Holy Crown.27 The Hungarian Constitution had, for centuries, possessed the unique feature of having the nature of public law;28 ‘the subject of sovereignty was the Holy Crown’ which comprised the crowned king and, ‘in former times through ennoblement, today through the franchise’, the members of the crown. Jurists abroad, went on Concha, had recently discovered a view that Hungarians had, always held: that neither the Monarch nor the People but the State itself ought to be regarded as the subject of state sovereignty.29 Nagy adopted this view from foreign jurists, Concha claimed, and failed to see that state sovereignty in Hungary had always been vested in the crown. Concha adduced historical evidence to support his thesis: the joint law- making by king and diet, the monarch’s obligation to enact the Inaugural Diploma at his coronation, and the passage from Werbőczi’s Tripartitum in which the sixteenth century jurist described the reciprocal relationship and mutual dependence of the king and the nobility, i.e. the ‘members of the Holy Crown’.30 Concha’s innovation was accepted by Nagy31 and most other jurists, including Ákos Timon32 who, in the light of Concha’s doctrine, refash- ioned mediaeval Hungarian constitutional history, As could be expected, Count Albert Apponyi, the great parliamentarian, in speeches and no less in his numerous publications, proved to be a most ardent apostle of the Holy Crown doctrine. By any standard, save historical veracity, the creation of the doctrine of Hungarian state sovereignty was a considerable achievement on the part of the Law Faculty of Budapest University at which most of the jurists involved had chairs. The doctrine radically rejected the dualist division

26 Ibid, p. 616. 27 Ibid, p. 617. 28 Ibid, pp. 558–59. 29 Ibid, pp. 585–86. 30 Ibid, pp. 586–90. 31 Ferenc Eckhart has pointed out that the third edition of Nagy’s work (1897) had been the fĳirst textbook in which the Holy Crown doctrine had been expounded. (Ferenc Eckhart, A szentkorona-eszme története [The History of the Concept of the Holy Crown], Budapest, 1941, pp. 322–23.) 32 Timon was the fĳirst holder of the Chair in Hungarian Constitutional and Legal History created by the Minister of Education at Budapest University in 1890. Timon was appointed on 1 February 1891. Concha moved to the same Law Faculty in 1892 and Nagy in 1912. 226 chapter seven of rights between king and ország—for centuries a central feature of the Hungarian constitution. The innovation was made at a time when crown and parliament were coming into conflict, and the doctrine helped the latter side. For all its efffectiveness, which should not be overrated, the Holy Crown doctrine remained (even in Hungary) a contested product of the dogmatic law school as did many doctrines in Cisleithania.

Political Crises and the 1867 Settlement

The assertion of rival constitutional theories based on modernistic assumptions increased uncertainty. Outsiders frequently abandoned the hope of understanding how the Monarchy’s institutions worked. The editor of The Times thought in 1897 that the Dual Monarchy is a paradox which defĳies explanation by any political theory accepted among men. The more we study the extraordinary compli- cations and contradictions out of which some sort of working administration has to be evolved the more we are reminded of the line in which some ingenious person once summed up the Hegelian philosophy—‘Nothing is, and nothing is not, but everything is becoming’. In most political systems some dominant idea or some paramount force may be found round which other things may be grouped more or less logically and satisfactorily. We can see fairly well what is and what is not, and why the combination works. But in the Dual Monarchy everything is uncertain, everything is fluctuating, and every rule perpetually overwhelmed by exceptions. Yet, the system, incongruous and incoherent as it seems, somehow holds together, and everything necessary is always becoming, although we cannot tell how it came there, or what is to fĳill its space tomorrow.33 Jurists, too, in the West found conditions in the Monarchy perplexing. James Bryce discussed Austria-Hungary in modern legal terms. He was unable to discover ‘any one Sovereign’ in Austria-Hungary in order to score against the Austinian view of the state.34 Foreign scholars invariably looked for answers in terms of statutory law and the concepts of the State and legal sovereignty. Louis Eisenmann’s work on the 1867 Settlement,35 notwithstanding the accolade it has received from historians over the

33 The flippant yet sympathetic editorial, published in the silly season, accompanied Lavino’s report form Vienna on national conflicts and constitutional paradoxes during the Badeni crisis. (The Times, 31 August 1897) 34 James Bryce, Studies in History and Jurisprudence, Oxford, 1901, II, pp. 91–92. 35 Louis Eisenmann, Le Compromise austro-hongrois de 1867, Paris, 1904, pp. 639 fff, 659 fff. the dualist character of the 1867 settlement 227 years, sufffered badly from the modernistic assumptions of the dogmatic law school. Because of Eisenmann’s book, Austria-Hungary began to be regarded in Western Europe as if, by virtue of the 1867 Settlement, it consisted of two legally sovereign states. This view is evident today. Only a few years ago, K.C. Wheare discussed the constitution of Austria-Hungary in sovereignty terms.36 Legal interpretations of the Settlement received much publicity during the Badeni crisis of 1897, and even more during the protracted ‘Hungarian crisis’ which began towards the end of 1902. Conflicts between the Austrian and the Hungarian governments, the political pressure building up in Hungary to redefĳine the terms of the Settlement in her favour, and the more dangerous conflict between Parliament and the Crown over army rights laid bare to a wide audience, within and without the Monarchy, the uncertainties which surrounded the interpretation of the basic laws of the Dual Monarchy. During the constitutional crisis between January 1905 and April 1906, the gaps between the Delegations- Gesetz and Law XII of 1867 acquired a political signifĳicance of the fĳirst order. They were clearly set out by the conscientious scholar of the dogmatic law school, Edmund Bernatzik. He threw up his hands in despair: the discrepancies, ambiguities and contradictions were so fundamental that it was quite fruitless to ask questions about the juridical nature of the relations between Austria and Hungary.37 The limelight thrown on the 1867 Settlement during the constitutional crisis did not help make it better understood. The Settlement acquired the reputation of being a particularly incongruous piece of statecraft; it became a scapegoat for the lack of coherence in public law, although it had not been coherent even before 1867. The authors of the Settlement were blamed for the insoluble constitutional problems of the early twentieth century, for the aspirations of a new generation of politicians and jurists. The most damaging comment the Settlement ever received, as a legal document was the sneer that, back in 1867, it had been drafted with deliberate ambiguity. The army rights of the monarch and the interpretation of Section 11, Law XII of 186738 was at the centre of the conflict between parliament and the crown. Ferenc Kossuth, joint leader with Count Albert Apponyi of the Independence Party, intimated in early 1906 to Henry

36 K.C. Wheare, Federal Government, 4th ed, Oxford, 1963, pp. 5–6, 29. 37 The fĳirst edition of Bernatzik’s work (see note 3) appeared in 1906, its preface being written at the height of the crisis in February. 38 See p. 270 below. 228 chapter seven

Wickham Steed, who represented The Times in Vienna and was the most influential foreign correspondent, that Deák and Andrássy had intended Section 11 of the law to be ambiguous so that Hungary could exploit that ambiguity in future disputes.39 This was a detraction that increased the muddle. Because of partisan journalism, the Austro- Hungarian constitutional system became something intelligent men did not need, after all, to take quite seriously. The infatuation with the state dogma in the old Monarchy was immortalised after its collapse in Robert Musil’s Der Mann ohne Eigenschaften. Musil’s satire on obscurantist public life in Kakania, the identity problem involved in being an ‘Austrian’, might serve as an epitaph to the modernistic interpretations which accrued over the decades before 1918 to what Deák, Franz Joseph and others had accomplished in 1867.

The ősi (Ancient) and the Korszerű (Modern) Constitution

There is not enough evidence to suggest that the authors of the 1867 Settlement thought in modern legal terms; a surprising amount, however, shows them to have been under the influence of the ősi (ancient) constitution. Customary rights rather than statutory laws formed the basis of social organization in Hungary, and to Deák, his associates and negotiating partners it was axiomatic that the country’s laws were to a great extent customary. Legislation, which grew out of mediaeval statute making by the king and the diet, had a limited sphere and existed side by side with customary rights. Lawmaking was not viewed in sovereignty terms. The monarch exercised customary rights vested in the crown, and the diet exercised corporate rights and privileges vested in the noble ország: the land or Hungary as a subject (or possessor) of rights. There was a public sphere (of so-called ‘shared rights’) within which the laws were made by agreement between the two owners of rights: the lawfully crowned king and the ország diet convoked in accordance with custom. It was a sphere limited, on the one hand, by the reserved (customary) rights of the crown and, on the other, by the fundamental (customary) rights reserved to the

39 The Times, 6 February 1906. H.W. Steed, in his The Habsburg Monarchy (1913), referred to ‘the, perhaps wilful, obscurity of the Hungarian Statute’, p. 20. The detraction (for which there is not a shred of contemporary evidence) found its way into historical works. Professor G.E. Rothenberg wrote of Section 11 of the Hungarian Law that its ‘language was deliberately obscure’. (‘Toward a National Hungarian Army: The Military Compromise of 1868 and the Consequences’, The Slavic Review, 1972, p. 807.) the dualist character of the 1867 settlement 229 ország, which as they were vested in diffferent hands, balanced each other symmetrically. The iura maiestatica reservata left to the king’s discretion a wide sphere within which the monarch could act freely. Likewise the fundamental rights, the iura regni, carved out a sphere of law for the ország, and were even referred to as ‘prerogatives’,40 in other words a ‘no- go area’ for the monarch’s administration. In the same way, the king’s reserved rights could not be interfered with by the noble ország. It was widely held that not even the king and the diet together were entitled to change fundamental ország rights, nor to take anything away from the rights reserved to the monarch, although, as we shall see, the two sides hardly ever agreed as to what these were. Central to the political institutions was a duality: the crown of Hungary and the noble ország existing side by side as two distinct and largely separate repositories of (public and private) right. The land of Hungary, the ország as a subject of right and the magyar nemzet of the nobility (Hungarian nation) were coterminous. The crown of Hungary, in addition to Hungary, ruled over other lands, notably Croatia-Slavonia and Transylvania, both of which had their own distinct dualistic systems of rights. The State as an integrated system of law was, by and large, non- existent. For centuries, the kingdom of Hungary was an acute case of legal-institutional bipolarity (Doppelpoligkeit)41 or ‘structural dualism’— an almost endemic condition—which had a lasting efffect on the Hungarian political mentalité. In the course of the nineteenth century, under the impact of ‘Western’ ideas institutions were ‘modernised’. ‘Korszerű’42 and ‘modernizál’ (modernise) became parts of the Hungarian political vocabulary and have been key words ever since. To make the constitution korszerű, it was held in the 1840s, government responsibility and franchise had to be introduced. The reforms introduced in and after 1848 involved, as we shall see, the transformation, or conversion of some rights hitherto held either by the crown or by the ország separately. Yet the reforms did not undermine the crown- ország division. Old and new coexisted, and this coexistence allowed the

40 The terms ‘praerogativa’ and ‘cardinalis’ (sarkalatos) rights of the ország (also of the nobles) were synonymous. 41 O. Hintze, ‘Typologie der ständischen Verfassungen des Abendlandes’, in Staat und Verfassung, Leipzig, 1941, p. 113; O. Brunner, ‘Das Haus Österreich und die Donaumonarchie’, Südost-Forschungen, XIV, 1955, pp. 126, 134 fff,idem , ‘Der österreichisch-ungarische Ausgleich von 1867 und seine geschichtlichen Grundlagen’, in T. Mayer, ed, Der österrei- chisch-ungarische Ausgleich von 1867, Munich, 1968, pp. 21 fff. 42 See p. 245 below and note 54. 230 chapter seven possibility of looking at the country’s laws and institutions from two dif- ferent vantage points, each permitting diffferent descriptions. It all depends on our assumptions: the 1867 Settlement, on the old structurally dualistic assumptions, will appear as a constitutional Settle- ment between the crown and the ország; on modern legal, in other words, Western-European, assumptions it will have to be regarded as the laws that governed the relationship between ‘Hungary’ and ‘Austria’. On the structurally dualistic assumptions Deák and the parliament could claim that they had attained in a durable settlement with the crown full ország independence within a reformed monarchic empire; they could, on the legal dogmatic assumptions, be criticised as having abandoned in a ‘compromise’ some of Hungary’s state rights. Viewed from its structurally dualistic basis, the political conflict informing so much of the Monarchy’s history will appear as alkotmánypolitika (constitutional politics); it will concern the relationship between the monarch and parliament. If, on the other hand, the conflict is viewed from the legal dogmatic vantage point, it will appear as the közjogi kérdés (die Frage des öfffentlichen Rechtes): a conflict between the two states of the Monarchy. In political usage, however, alkotmányos (constitutional) and közjogi. were largely interchangeable. The diffference was not substantial. It was substantial, however, when we inquire into the character of the political institutions of the Dualist era. On the structurally dualistic assumptions, we shall see the old system within which the conflict between the crown and the országgyűlés (diet) was still relentlessly going on. On modernistic assumptions, the system will be classifĳied as parliamentary (and as such might be condemned as a corrupt specimen). The dominant political ideology of the age will likewise appear to be Janus-faced. One can see it as the habitual antagonism between a gentry class-parliament and its alien crown in modern disguise; or as a specimen of modern nationalism – an attempt to overcome the old bipolarity. It all depends on the assumptions we choose to adopt. Even the concept of the constitution – which is central to my inquiry – reveals the same ambiguity. If we examine the Hungarian constitution from its ancient foundations, it appears to have been a system of mutually recognised rights and duties of crown and ország. Described in modernistic terms (following, for instance, Montesquieu), the Hungarian constitution will be a system of formal legal and informal conventional rules about the distribution and use of state power among the legislative, the executive and the judicial branches of government. The assumptions of the ancient system were contractualist, as two distinct subjects of right, the monarch the dualist character of the 1867 settlement 231 and the ország, faced each other. In contrast, the modern legal view, which predicated all public right on the State and rejected a view that involved two legal subjects, did its best to explain away the contractualist foundations of the Hungarian constitution. To sum up: the ancient view of the constitution rested on the structural division between two foci of authority, whereas the modern legal view of the constitution rested on the postulate of the State.’ Each of these alternative perspectives on the constitution was associated with a number of institutions: the modern view, inter alia, with the principle of the equality of all citizens before the law; with a unifĳied court system; with franchise for elections in the megye (county) and the országgyűlés; with the bill system in statute-making and a view of legislation as statute law-making; and with an ‘independent Hungarian responsible ministry’ and its corollaries: countersignature, budget making, the answerability of the government to parliament, and legal provisions for the impeachment of ministers. These korszerű Western institutions were grafted onto the ősi institutions during the nineteenth century by stages, with the abolition of some, and the strengthening of others, without, however, the dislocation, let alone destruction, of the dualistic structure. It would be a mistake to think that the ‘ancient constitution’ already existed in the Middle Ages. Only parts of the ősi institutions were centuries old; other parts developed in the eighteenth century. The essential elements included the rules for succession to the throne; the House of Habsburg’s indivisible and inseparable possession of Hungary together with their other lands (Arts I and II of 1723); the coronation of the king, his taking of the Oath, and the issuing of an inaugural certifĳicate called the Diploma through diaetalis tractatus (országgyűlési egyezkedés); the king’s right to rule and govern the country, his duty to defend its territory and its inhabitants, to recover and reattach lost territories to the ország, as well as his obligation to maintain intact its ancient custom. These maxims and procedures rested on the privileges of the Church and of the nobility (itself a hierarchy of legal conditions defĳined by conferment of right and custom); the inherited rights and obligations of noble families and those of the ország, the legal repository of the nobility’s corporate rights; the self-government of the nobility: the megye, and their participation in statute making together with the king through tractatus at the diet. There were also the fundamental ország rights, including the right to be governed by the monarch according to the ország’s own laws and customs, the right of the ország to a standing separate from the ‘other Lands’ within the Habsburg realm with which it was in union through the monarch 232 chapter seven and through the institutions within the crown’s sphere of authority. The ország had the duty to assist its monarch against all his enemies. Having briefly outlined the ancient as well as the korszerű sides of the constitution, I shall now examine the institutional basis on which the 1867 Settlement was founded.

The Dualism of Crown and Ország

The institutional links between the crown and the ország were tenuous. The royal administration and the judiciary had few tentacles in the regions where comitat authority was, as a last resort, counterbalanced by the imperial army stationed in the country. Politics was essentially about conflicts: the upsetting and the restoring of power and of right through civil war, local skirmishes and political bargaining between the representatives of the crown and of the ország – facing each other as two separate, if unequal, foci of power. County authority lent muscle to the diet which was the pivotal institution. The bargaining which took place there according to the refĳined customary rules of diaetalis tractatus now and again restored peace and harmony between the two sides. A decretum enacted at the conclusion of a diet was a package of heterogeneous measures, heavily couched in terms of the rights on which the measures touched, all ‘linked’ together and going only as far as complete consensus could be attained through ‘messages’ between the Upper arid the Lower Tables, and the king (rescripts and addresses). Joint deputations (members of the diet and crown offfĳicials) drafted the text (concertatio). In the decreta (which preserved elements of a dialogue between the partners) the Court traded offf promises to redress grievances and ‘consider’ desiderata (gravamina et postulata) in return for recruits and taxes (essential items of the royal propositiones). For the nobility the diet served as a forum of redress against royal encroachment on their rights, and their quid pro quo consisted of offfering only so many soldiers and a little cash in return for putting grievances aright. In this exercise, the contingent of recruits supplied to the army was the most efffective lever in negotiating with the Court. Deák particularly excelled in its use before 1848. It is highly misleading to regard the decreta as statutory laws made by a legislative body. The view that decreta were consuetudines promulgated by the king in agreement with the diet, rather than the products of a legislature vested with the power to make laws, survived well into the nineteenth century. Furthermore, the decreta did not do much to help refĳine the dualist character of the 1867 settlement 233 constitutional rules. They hardly ever set out the mutually recognised rights and obligations of crown and ország—which the constitution was essentially about. They presumed their existence. Instead of defĳining, penetrating and integrating (not to mention: replacing) the system of rights and duties into a unifĳied statutory legal system, thedecreta alluded to, referred to (and in some sense, even borrowed their legal authority from) the rights held in consuetudo. Nor was there any other general arbiter of rights that today we would consider ‘public’ rather then ‘private’. There was no independent judiciary to settle disputes between the king and the ország. The royal courts were dependent on the monarch; the county sedria represented locally held views. The storm caused by the ‘revision clause’ concerning usu et intellectu of the nobility’s rights inserted in the Oath of Joseph, neorex at the diet in 1687, and the subsequent history of the clause in the eighteenth century (when its strength was gradually whittled down by the diet) reveal that, in the nobility’s view, basic rights were not subject to revision or even interpretation. They existed in tacitus consensus populi and in usus. Even Art. XII of 1790 ‘On the Exercise of Legislative and Executive Power’ (a widely misunderstood law) did not change the position of statutory in relation to customary law as regards basic rights. The immutability of basic rights was reafffĳirmed in Art. III of 1827 and in Ferdinand’s Diploma of 1830. The decisive change came in 1848 when many fundamental rights of the nobility were abolished by the April Laws. There never was a valid, generally accepted view of the ősi Hungarian constitution, nor did the working of the political institutions require it. The exercise of authority depended on a balance of customary rights, changing circumstances and de facto distribution of power between the two sides rather than on general principles. The crown never accepted the nobility’s claims regarding the distribution of rights between itself and the ország, and vice versa. As there was no forum with authority to resolve conflicting claims, it is not surprising that structural dualism led to widely diffferent views on the extent of iura maiestatica and iura regni by the two sides. Court offfĳicials’ complaints that counties or the diet usurped the sovereign’s rights were as frequent as the diet’s gravamina protesting and remonstrating against royal encroachments. The gaps were unbridgeable and the conflicts arising from them at every turn afffected the manner in which the ancient constitution operated. The question of the legitimacy of monarchic rule well demonstrates the wide gap. Leaving out short-lived aberrations, the crown accepted that it ruled Hungary as a limited monarchy rather than a province of an 234 chapter seven autocrat. The dynasty and the ország could also agree that succession to the royal throne was iuxta antiquam censuetudinem; this, however, the crown claimed meant iure hereditario, whereas the ország-diet insisted that it involved libera electio. Even after Arts II and III of 1687 had established agnatic succession in the dynasty the nobility did not abandon its views. In the eighteenth century, not everyone accepted the crown’s claim to hold Hungary as a hereditary land. Views conflicted also over the Pragmatic Sanction, the nature and the substance of the inaugural Diploma, and whether or not royal sanction or promulgation gave legal force to decreta, to mention just a few examples. Conflicts over practical issues were more important. The crown’s reluctance to reattach liberated territories to the ország (in the south, the Partium, and so on), interference by non-Hungarian government agencies in ország afffairs, and acts of violence by army units stationed in the country proved an unending source of disagreements in the course of which counties and diets never tired of distinguishing between what had come to be de facto and what they claimed de iure. There were intermina- ble debates on whether the monarch’s right to fĳix the price of salt was one of his reservata or whether he had to secure the diet’s consent to so doing. In the eighteenth century, the literature on Hungarian public law, as far as it existed, largely represented the views held in the Court. While the old constitution was in force, neither Count Antal Cziráky, Lord Chief Justice from 1827 and President of the University of Pest, nor Anton Virozsil, rector at the same University, managed to secure permission to print their substantial works on Hungarian public law. In the government’s view the distinguished authors leant too far towards the wrong side in their interpretations.43 The Court and the leaders of the nobility were keenly aware of the conflicting views formed on their respective rights, and even tolerated these diffferences up to a point, developing the art of fĳinding formulae which allowed each side to reserve its claims intact without offfending the other. There was a long conflict at the diet in 1840 over the political trials and imprisonment of Wesselényi, Lovassy, Kossuth and others, which also brought to the fore the issue of parliamentary free speech. To get out of the stalemate, which put all the work of the diet into jeopardy, a compromise was worked out by the Palatine and some of the politicians at the diet—Deák among them. Accordingly, the Palatine reported the

43 Their manuscripts were eventually allowed to be published as historical works and as such only in Latin in the early 1850s. the dualist character of the 1867 settlement 235 release of the prisoners to the diet in a brief statement that neither recognised nor explicitly denied the grounds on which the Lower Table had vainly been demanding redress for a whole year.

The Habsburg Empire and the Conversion of the Rights and Duties of Crown and Ország into Constitutional Laws

The nobility, living in conditions of structural dualism, had always seen their ország as separate from the Habsburg Empire. For them the empire, lodged (or hidden) within the wide sphere of the ruler’s reserved rights, existed on a diffferent plane. The fact that the monarch’s rights to ‘rule and govern’ Hungary were limited in a sense that did not apply elsewhere in the empire made little diffference, since the monarch’s imperial sphere (his control of foreign policy, the imperial army and fĳinance) did not impinge on fundamental ország rights by defĳinition. In short, the central Habsburg state apparatus, including the large standing army, grew up under the umbrella of that autocratic set of rights—the monarch’s—that stood in direct opposition to the ország’s. From this perspective the ország was truly ‘separate’ from the empire to which it was linked through its relationship to the crown. The ország’s union with the ‘other lands’ was monarchic, too. The Pragmatic Sanction extended Habsburg hereditary succession to all cognates of the dynasty’s main branches. It stipulated that the order of succession to the crown of Hungary was to be the same as in the other hereditary lands ‘in and outside Germany’, lands with which Hungary was possessed indivisibiliter ac inseparabiliter. The preamble set out the purpose of the Pragmatic Sanction as a defence against the Monarchy’s external and internal enemies. Arts I and II of 1713 were seen—as early as the eighteenth century—as a solemn unchangeable contract that bound the ország to the House of Austria; in return, ország rights and prerogatives were expressly confĳirmed in Art. III of 1723 which followed the laws of succession. As the ország was connected (or, mediated) to the empire through the crown’s reserved rights, Hungary’s contacts with the ‘other Lands’ remained a part of the crown-ország relationship. The imperial link necessarily acquired a new dimension with the demand for the introduction of modern Western constitutional forms. Under constitutional government, some of the rights previously exercised in an autocratic manner by the monarch as reservata had to be converted into communicata (shared rights). Conversion (átalakítás) was to create a 236 chapter seven new sphere of public right, one in which legislation would be shared between the monarch and elected representatives from all the Habsburg Lands, and executive power would be exercised through ministerial, responsible government. In this sphere of public right, the monarch could share power with social groups within unitary institutions, or federally, so to say, Land by Land, or in some combination of these two ways. Under any arrangement devised, however, the price of acquiring constitutional government was for the ország to come into contact with the other lands, something it never had to have before—unless constitutional government was to be introduced only in Hungary and nowhere else in the Monarchy. There was great reluctance in Hungary to accept this. At any rate, the authority of the ország-diet based on county power was stronger than that of the Stände elsewhere in the Habsburg lands where they were mostly etiolated shells. Moreover, in the years preceding the introduction of constitutional forms, the diffferences between Hungary and the other lands were actually growing. For though after 1790 government in Hungary, as elsewhere, was still part of the monarch’s reservata, in contrast to the other Lands, legislation in Hungary (so far as it existed before 1848) became unambiguously communicata. Once conversion was carried out in the other Lands, they too would become the ország’s partners in tractatio with the monarch in matters which were converted into communicata (e.g. the system of imperial defence and fĳinance). The fĳirst attempt to carry out a constitutional conversion of the monarch’s rights was more sweeping than any subsequent attempt and although it failed conspicuously, it set a standard for Hungarian politics that outlasted even the Monarchy. In an unprecedented revolutionary situation in the spring of 1848, the prospects of wholesale social and constitutional reform suddenly opened up in the Monarchy. Predictably the diet of Hungary was the pacesetter. Its reforms broke the back of the old social order based on hereditary right and laid the foundations of the new Hungary. Ország rights were converted into the rights of the Hungarian nation, to which at least those who were given the franchise could claim to belong. The diet was transformed into a modern legislature and an ‘independent Hungarian responsible’ ministry was wrested from the panic- stricken court. The conventions of tractatus politics were repeatedly broken. The April Laws split the monarch’s rights between the absentee king and the Palatine in the vaguest possible manner. Furthermore, though the executive power was converted into communicata, (it became a shared right) there was no complementary arrangement to regulate the now visible ‘relations’ (kapcsolatok) between Hungary and the other lands the dualist character of the 1867 settlement 237 which had also acquired constitutional government. In the preamble to the April Laws, the ország recognised the Pragmatic Sanction, and §2 of Law III stated that, ‘the unity of the crown and the imperial connection’ was to be maintained unimpaired. However, just what that unity and connection consisted of the law did not explain. Nor did the law defĳine with any clarity what was and what was not converted. At any rate, radical Hungarian nationalists were determined that the ‘union’ of the various lands should fĳind expression in nothing more than the physical person of a shared monarch. Imperial fĳinance including the state debts, the army and much else required equitable arrangements to be reached through consent. The Batthyány Cabinet, smarting under the pressure of the radicals in parliament, was less than willing to co-operate with the new government in Vienna. The Court, in making concessions, probably acted in bad faith from the start. As soon as its political position allowed (after Radetzky’s army had routed the Piedmontese), it was ready to claw back much that had been given away in the spring. Meanwhile the new Kossuth-dominated parliament at Pest was stretching the interpretation of the April Laws in the opposite direction. Moderates led by Minister President Batthyány worked for a settlement with the crown with little chance of success, although the term kiegyenlítés cropped up in government announcements and in the newspaper, the Pesti Hirlap. Civil war ensued, between the nobility-led parliamentary army and the army under imperial command. The April Laws were suspended by the crown; the dynasty was dethroned and Hungary declared an independent state (status, álladalom) by the rump parliament at Debrecen. After Világos, bureaucratic imperial government was imposed on the country by stages. Constitutional principles fared no better in the western half of the Monarchy after 1849. But the repudiation of constitutional government was but a temporary impasse for the Monarchy; its great-power status could be maintained only by the reintroduction of constitutional forms. It was not so much the pressure exerted by the German Liberals, or the Hungarian or Czech nationalists that induced Emperor Franz Joseph to embark on political experiments (and their primary aim was not to satisfy the demands of this or that land or social group) as the requirements of Austria’s great-power statue. After Solferino, fĳinancial houses in western Europe refused to lend more to Austria without the security of public accountability for government expenditure. And accountability was contingent on at least a limited degree of constitutional control over fĳinance. Hence the press campaign for a constitution inspired by bankers in Vienna, which put life 238 chapter seven into liberals and nationalists alike in the lands. The crown was the active agent in constitution making between Világos and the conclusion of the 1867 Hungarian Settlement; the other forces only responded to its initia- tives. The autocrat put the questions rather than the politicians. This process was diffferent from what happened in western Europe. There, constitution making in the nineteenth century involved fĳinding the recipe with the best chance of uniting the politically articulate classes and the various regions in a common allegiance. The road to such a system was strewn with failures but, emulating Britain and Belgium, about half a dozen countries in western and northern Europe had attained parliamentary government by the end of the century. The problem in Austria (and in Prussia and Russia) was very diffferent. There the purpose of reform was not to meet the political demands of the articulate social groups; if constitutional reforms satisfĳied some of them that was incidental. What Franz Joseph wanted to know was what kind of reforms, all being Western European inventions, were necessary to shore up, protect and enhance the position of the Monarchy as a European power against its rivals without sacrifĳicing essential monarchic rights. In his search for an answer he never accepted parliamentary government in the political sense, and the autocratic principle—that is, the preservation intact of essential reservata—remained the limiting factor in any of the number of conversion plans he contemplated adopting. For all that, unilateral constitution making by the crown did not work in Hungary in 1860–61 (or at any other time for that matter), just as unilateral (revolutionary) constitution making by the ország did not work in 1848. That was the main reason for the failure of the 1860 October Diploma. Its authors believed it to be a ‘permanent and irrevocable fundamental state law.’44 However the bulk of Hungarian politicians responded to it as an initiative by the crown which enabled them to demand a negotiated settlement with the monarch through diaetalis tractatus. When this became obvious to the other side even some of the ‘concessions’ of the Diploma were retracted in the February Patent in 1861—another unilateral act. In Hungary, not a single elected politician was prepared to defend

44 Bernatzik, Die österreichischen.., p. 225. Scholars have been critical of the constitutional provisions of the October Diploma as was contemporary public opinion: see the assessment by J. Redlich, Das österreichische Staats- und Reichsproblem, Vienna, 1920 (II, 1926), I/1 pp. 650 fff. and more recently by P. Hanák, ‘The First Attempt at the Austro- Hungarian Compromise—1860’, Etudes Historiques Hongroises, 1975, I, pp. 594–96; on the impact of the Diploma on Hungary: G. Szabad, Forradalom és kiegyezés válaszútján, 1860– 61 (At the Crossroads of Revolution and Compromise), Budapest, 1967, pp. 77 fff. the dualist character of the 1867 settlement 239 the Patent and only a few, the Hungarian Conservatives, supported the Diploma in the parliament convoked in April. The monarch and the imperial government had a conversion plan. They read modern legal concepts into the institutions of the past, insisting that the ország, ever since the Pragmatic Sanction, had been tied to the empire as a state in a ‘real union’; this way, they could argue that Hungary had a clear obligation to send representatives to the Reichsrat to which the imperial government was to be made responsible. This was the essence of the Centralists’ conversion plan. Deák and the whole parliament, following a centuries old tradition of diaetalis politics, would have liked to work out a settlement (kiegyenlítés) with the crown in 1861, but because of the latter’s intransigence, they were in no position to put forward a specifĳic conversion plan. Parliament demanded prior restitutio in integrum, including the recognition of the April Laws, before beginning egyezkedés (tractatio) about anything. It rejected the demand to send representatives to the Reichsrat, insisting that Hungary’s union with the empire had, ever since 1723, been ‘personal’. However, ‘personal’ in 1861 did not mean the physical person of the incumbent. Parliament’s constitutional outlook was strictly moderate. In the two Addresses sent to the monarch, parliament explicitly recognised that (1) the crown of Hungary had reserved rights, that (2) the nation and the king were tied to each other through ‘mutually dependent conditions’ (viszonos föltételek; viszonyok) and that (3) by virtue of the Pragmatic Sanction (an indestructible fundamental contract) the ország had ‘common relations’ (közös viszonyok) with the other lands. For, as Deák’s second Address (‘unanimously’ approved by both Houses!) admitted: ‘Surely the personal union, too, is a connection from which common relations derive.’45 Thus in 1861 parliament was already inclined to accept the logic of constitutional conversion within the empire. This attitude provided the basis on which, four years later, Deák could set out his constitutional principles and offfer a conversion plan. In 1861, however, the monarch did not yet accept a settlement on terms that Hungarian politicians were likely to agree to and parliament, convened in the spring, was sent packing by August. The obstacles did not spring from the government’s fear that too

45 ‘közös viszonyok származnak’, Manó Kónyi, ed, Deák Ferencz beszédei, 2nd edition, Budapest, 1903, III, p. 243. Many historians who insist that Deák defended Hungary’s state rights in 1861 and that he abandoned them, or some of them, in 1865, ignore this crucial point in Deák’s Address. 240 chapter seven many of the autocratic rights might be converted into communicata; there was no trace whatsoever of radicalism in the Addresses, nor did Vienna think there was. The obstacle was the imperial government’s attachment to the unitary treatment of an inflated view of közös viszonyok. The gap between the two sides narrowed sufffĳiciently to reopen negotiations after a constitutional provisorium that each side considered temporary. In late 1864, Franz Joseph reluctantly reached the decision that unless Bismarck was checked by force the empire would lose its position in Germany. At the same time, the monarch came to the view that the Reichsrat had failed lamentably to provide the army with the funds that he considered vital to the success of the German policy that he now resolved to embark on.

Deák’s May Programme of 1865

In 1865 the monarch, arguably, still preferred a ‘federalist’ conversion. (Why it did not come about—and never had a sporting chance—does not concern me now.) Franz Joseph was now willing to abandon the centralist plan as regards Hungary and sent Baron Augusz to Pest to have confĳiden- tial talks with Deák. This gave rise to the ‘Easter article’ in the Pesti Napló.46 In the article Deák did not (as so many historians have claimed) suggest giving up some of Hungary’s constitutional rights but indicated willingness, on his part, to carry out a conversion of monarchic rights through a negotiated settlement that would not involve excessive institutional separation between Hungary and the rest of the empire. This was the import of Deák’s statement that, of the two principles, the security of the empire and the constitutional independence of Hungary, the former was paramount. Deák claimed ‘lawful’ ország independence for Hungary – not state independence. This was the message, not the whittling down of Hungary’s ország rights. ‘We are always prepared to harmonise our laws, through legislation, to guarantee the empire’s secure existence.’47 In practical terms this meant

46 The connection between Augusz’s visits and the article is emphasised by P. Hanák in ‘Deák húsvéti cikkének előzményei’ (The Antecedents of Deák’s Easter Article), Történelmi Szemle, 1974, esp. p. 589. 47 Kónyi, Deák Ferencz.., III, p. 408. Many historians judge Deák’s political principles in the light of Kossuth’s views on the 1867 Settlement (rather than in their own right); e.g. E. Molnár, ed, Magyarország története (A History of Hungary), Budapest, 1967, II, pp. 67, 69, 71–72; E. Kovács, ed, Magyarország története 1848–1890 (A History of Hungary 1848–1890), Budapest, 1979, pp. 736, 755 fff, 767–68, 778. the dualist character of the 1867 settlement 241 willingness to amend the April Laws on those points where, at least in the monarch’s view, they either had failed to carry out conversion with precision, or threatened the empire’s security. When the Easter article was well received by the Court and the government, Deák announced his (and his political friends’) programme in the Debatte.48 This was a conversion plan, although more of an outline than a blueprint for a constitutional settlement. Deák reiterated his rejection of a centralist conversion: Hungary would never send representatives to the Reichsrat; the country would have to be governed according to its own laws by its own government. The starting point for solving the Hungarian question—argues the programme—should be the Pragmatic Sanction which created the empire and provided the most important guarantee of Hungarian state right. It was to it that the legislator should turn for guid- ance as to what the Monarchy’s new circumstances demanded, and as to whether there were indeed közös ügyek (common matters) for all the lands (valamennyi ország) of the Monarchy. According to the 1848 laws and the Addresses of 1861 such did exist. In listing these common matters and suggesting ways of dealing with them Deák arrived at the most sensitive points. The two Addresses in 1861 had not offfered a conversion plan; the April Laws had largely dodged the problem and, before 1848, the legal basis had been largely customary. Above all, given structural dualism, monarch and ország had sharply conflicting views on the nature and the boundaries of their respective rights and duties. Only segments of the monarch’s reserved and shared rights, and only some aspects of the viszonos föltételek between king and ország would appear—once they underwent constitutional translation—as közös viszonyok and consequently, as közös ügyek shared by Hungary and the other Lands. These had to be distinguished from the rest of the reserved and shared monarchic rights. This was where the Pragmatic Sanction could be turned to good account. German Centralists, Bohemian Federalists and Hungarian Conservatives alike had used it as the legal foundation from which to conjure up the very diffferent constitutions each happened to cherish. Deák turned the tables on them by teasing a whole panoply of converted ország rights out of the Pragmatic Sanction along with ország obligations towards the empire. The Pragmatic Sanction, wrote Deák, should be the criterion by which the közös ügyek was defĳined. What was common was common only to the degree which the maintenance of the Monarchy’s safety unavoidably

48 Kónyi, Deák Ferencz.., III, pp. 422–29. 242 chapter seven required. Since by virtue of the Pragmatic Sanction the Monarchy’s Lands (országai) owed allegiance to ‘one and the same’ monarch, their fĳirst common matter was the monarch’s household. As the Pragmatic Sanction laid the obligation of mutual defence upon each part of the Monarchy, foreign policy and the army were common, too. Foreign policy, continued Deák, had to be uniform and ‘common in every respect’. The army, on the other hand, did not have to be common in every particular. Here the programme carefully distinguished between reserved and shared rights. Internal army matters were under the supreme warlord’s authority (legfőbb hadúr hatásköre). Length of military service, enlistment, the levy, quartering of the army and similar rights were to remain parliamentary. In these respects there had been diffferences between Hungary and the other Lands in the past and the security of the Monarchy had not sufffered. Provided that these rights were preserved in the future, közös megálla- podás (understanding or agreement) could govern Hungary’s share in providing recruits in times of peace and war. But again, parliament and the Hungarian government had to reserve the right to order enlistment in the country (a hányad kiállítása). Common expenses and a common credit system would fĳinance theközös ügyek. Hungary’s share of the costs, supplied by her parliament and government, was to be passed on to the common minister of fĳinance who, Deák implied, had to operate outside Hungary. He remarked here that all ‘government agencies’ in Hungary were to be subordinated only to the Hungarian ministry. Economic policy was also to be common. But Deák did not derive this from the Pragmatic Sanction; he argued that, as there were no internal tarifffs in the Monarchy and nobody would wish to see them again, there was a need for a common commercial policy and indirect taxation. Only the general principles, however, were to be common. Otherwise each country would be independent; for what could be arranged even ‘between states under separate sovereignty’ could surely be attained ‘between the individual parts of one and the same Monarchy’ under the pressure of expediency. The letter of the law might not invariably be the same throughout the Monarchy, but—claimed Deák—its spirit would undoubtedly be the same. There was to be no common treatment (közös kezelés or elintézés) of the common matters by some central parliament: the lands of the Monarchy would never abandon their ‘spirit of self-government and independence’. Between the lands of the Hungarian crown and the other lands the közös kezelés had to be based on parity (paritás), since—Deák claimed—the Pragmatic Sanction was already based on that principle. the dualist character of the 1867 settlement 243

The demand for parity had n structurally dualistic background: Deák held the Pragmatic Sanction to be a ‘fundamental contract struck after mutual bargaining’ (kölcsönös egyezkedés).49 This ‘mutual bargaining’ of the ország with the crown reappeared, with constitutional conversion, as the principle of parity between Hungary and the other Lands.50 The two sides—continued Deák—would elect authorised deputations (két kül- döttség) which ‘together with the crown will reach n concord in the common matters’. And when they could not, they were to be empowered to settle outstanding diffferences in urgent matters by a majority vote without seeking new instructions from their parent bodies. This was Deák’s version of the idea of Delegations—whose origins went back to 1861 (and in some respects even to 1849). Finally, the recognition of ‘legal continuity’ was a conditio sine qua non of the procedure for a constitutional settlement. A Hungarian ministry would have to be appointed; the offfĳice of Palatine being vacant, the royal prerogative would not be split, thus the main source of anxiety concerning the April Laws would dissipate. Also, Croatia and Transylvania were to be asked to send representatives to parliament, to which elections would be held according to the provisions of the April Laws. In the Gracious Speech, the monarch was to state his ‘wishes’51 concerning the new order of the Monarchy; parliament would respond in an Address. After this, diaetalis tractatus would commence in customary form. Many a structurally dualistic feature of the 1867 Settlement was due to the acceptance of this last demand. All in all, the programme aimed to demonstrate that a governmental system based on the recognition of Hungary’s constitutional rights to the full was feasible without jeopardising either essential monarchic reserved rights or the unity of the empire. The publication of Deák’s programme caused a stir in his own camp. Some worried about Deák’s setting out too much beforehand rather than holding back for bargaining later. His lieutenants were concerned about the joint sittings of the two küldöttség, and the system of instructions; neither became law in the end. But these disagreements remained private.

49 Deák’s fĳirst Address in 1861,ibid , p. 40. 50 Notably György Apponyi, Lord Chief Justice, in his memorandum to the monarch on a settlement with Hungary (submitted in January 1863, a copy of which was confĳidentially sent to Deák) introduced his suggestions concerning the ‘Delegations’, based on ‘parity’ and ‘co-ordinated dualism’, by reference to ‘the old custom’, Kónyi, Deák Ferencz.., III, pp. 302 and 304. 51 Deák, as the monarch was not yet crowned, carefully avoids the terms propositiones and előadások. 244 chapter seven

When parliament was convoked in the autumn, neither the electorate nor the elected could be in much doubt about the kind of constitutional settlement Deák intended to secure. His principles were above board. It was all the more noteworthy, therefore, that in 1865–66 not a single Hungarian politician raised his voice against Deák’s course.

The ‘Outline’ of the Subcommittee of Fifteen

The unity with which parliament expressed its wish to settle up with the crown in early 1866 was impressive. Kiegyenlítés (settlement) did not yet have the pejorative connotation which, through its artless translation to ‘compromise’, it has come to have since. The supporters of the government—labelled ‘Conservatives’—worked for a settlement (hoping to be in coalition with Deák). So did the large Liberal camp or the Centre led by Deák (which did as much as it could to rebufff the Conservatives’ advances). Ghyczy and Tisza, the Left Centre, wanted kiegyenlítés too, and so did Madarász and the handful of radicals on the Far Left. Deák’s authority was immense; most deputies recognised his leadership, and parties as such did not yet exist. The initiative in working out a settlement had now clearly passed from the monarch and his government to the parliament at Pest. The Upper House—as in 1861—meekly condoned the policies of the House of Representatives. The aristocracy followed the gentry and the gentry followed Deák. In the Address debate, he made it abundantly clear that he understood by the ‘unity of the empire’ Hungary’s relations to its monarch and also the közös viszonyok between Hungary and the other lands, which he perceived as közös ügyek.52 Nobody objected. The Address, carried nem. con.,53 indicated a convergence of views on constitutional principles in the House. This unity was rather obscured by the sharp exchange on the floor on how to attain ‘legal continuity’: the nub of that question was whether, by virtue of the April Laws, a Hungarian ministry should be appointed before or after the terms of the pact were set. Either way, it would be a tactical advantage. On the institutional means of constitutional conversion diffferences undoubtedly existed from the start, and the more detailed the discussion became, the more pronounced were the diffferences. For Deák’s was not the sole voice in parliament. However, it was he who, representing middle-of-the-road opinions,

52 Kónyi, Deák Ferencz.., III, pp. 592–4. 53 At the end of the general debate on 20 February 1866, Képviselőházi napló, I, p. 256. the dualist character of the 1867 settlement 245 articulated with great skill and clarity what the majority was prepared to settle for. There was general agreement that the conversion of monarchic and ország rights required korszerű54 (modern) institutions to deal with the viszonyok that were held to be common to all lands of the empire. The Deputations and the Delegations to be sent out by the Reichsrat and the Hungarian parliament were thought to meet that requirement. Politicians were, however, compelled to choose between conflicting aims: constitutional influence in the monarch’s autocratic sphere, and institutional separation within the Monarchy were both held to be desirable, but not to the same extent for everyone. And the two aims—the ‘liberal’ and the ‘separatist’—could be attained only at the expense of each other. A real choice existed between stronger constitutional influence, exercised through joint bodies (Delegations, etc.) whose wider powers would be bought at the expense of Hungary’s institutional separation from the other Lands; and Hungary’s greater separation from them at the expense of liberal constitutional control. Similarly, the exercise of efffective constitutional control in Hungarian interna depended on the concentration of adequate government power at the expense of the counties. On the other hand, Hungary’s rights vis-à-vis the empire could be better safeguarded—it was argued—with counties which were ‘coordinate’ rather than ‘subordinate’ to the government. Once more the conflict lay between ‘liberal’ and ‘separatist’ aims and the divergent attitudes on the county question tied in with the diffferences on the common institutions. Paradoxically, members considered ‘conservative’, right wing or moderate were more inclined to secure efffective constitutional influence through stronger Delegations at the expense of Hungary’s separation from the other Lands, and were also more prepared to centralise authority in the Ministry at the expense of the counties. Conversely, ‘left wing’ and so-called radical representatives preferred less efffective or no common institutions with the other Lands, and were more inclined to sacrifĳice constitutional influence by leaving a wider range of the monarch’s rights unconverted. They were, also, staunch defenders of county rights against the authority of the ministry. The so-called Far

54 The term korszerűen appeared in the monarch’s rescript of 3 March 1866. Képviselőház, irományok (House of Representatives, Papers, hereafter Képv. irom.) I, p. 44. Korszerű(en) corresponds to zeitgemäß; the Laxenburg Manifesto issued by the monarch on 15 July 1859 promised zeitgemäße Verbesserungen in Gesetzgebung und Verwaltung, Redlich, Das öster- reichische…, I, I/2 p. 174. 246 chapter seven

Left was less prepared to make concessions to western liberal constitutionalism than any other group, and there were proportionately fewer liberals in the ‘Liberal Camp’ and a larger number among the ‘Conserv- atives’. The diagram below demonstrates the combination of attitudes on constitutional conversion, the corresponding political labels and the numerical strength of each group in the House.55 Views on the constitution gradually became more diffferentiated in and around the Subcommittee of Fifteen—the body that played the crucial role in the story. In March, the House sent out a Committee of Fifty-two, which, with the inclusion of the Transylvanian members, became the Committee of Sixty-seven; its task was to prepare a draft on the közös viszonyok.56 Andrássy became its chairman and Csengery its secretary.

Fig. 1 The fĳigures in parentheses show the approximate strength of the groups in the House at the close of 1866. Unitary and Separatist liberal attitudes attitudes 1. stronger 1. weaker constitutional constitutional influence influence 2. efffective 2. feeble or no common common institutions institutions 3. subordinate 3. ‘coordinate’ counties counties Supporters of the Moderates or Left Far Left (13) government (20) Centre (210) Centre (100) Bartal Eötvös Deák Ghyczy Madarász Apponyi Andrássy Csengery Tisza Böszörményi The so-called The ‘Liberal ‘Radicals’ ‘Conservatives’ Camp’

55 The conversion scheme is equally inapplicable, for radically diffferent reasons, to a strong group in the Upper House, whose spokesman was Count János Cziráky, and to the Great Exile—Lajos Kossuth. 56 On Deák’s motion, submitted on 28 February 1866, the results of the committee membership elections were announced in the House on 5 March. Képviselőházi napló, I, pp. 329, 332. the dualist character of the 1867 settlement 247

As the Committee lacked proper instructions it wrote its own terms of reference and drew up an agenda. It decided that fĳirstly, it would prepare an ‘outline proposal’ based on fundamental principles and would submit that draft to the House before getting down to work out a detailed and full proposal.57 The Committee appointed a Subcommittee of Fifteen (including the Committee chairman and secretary) to prepare the outline. Moat shades of opinion were represented, and the atmosphere in the Subcom- mittee was tense: The monarch’s flat refusal to appoint a responsible ministry before the April Laws were revised generated frustration. The war with Prussia, which involved the prospect of the dissolution or prorogation of parliament, put great pressure on Deák and Csengery who were, in fact, doing most of the drafting. The outline turned out to be an enlarged version of Deák’s May Programme. There were a few changes: the monarch’s household as a közös ügy was forgotten, for instance, and the procedure to be followed by the Delegations – which were left as feeble and as toothless as in the May Programme – was altered.58 The suggested institutional ties to the other lands proved too close for Ghyczy and Tisza, who split away from the majority with a minority report. Deák and Csengery worked under strain but the Subcommittee submitted a draft ‘opinion concerning the common relations’ to its parent-committee on 25 June—the day before parliament was fĳinally prorogued. The ‘opinion’ was immediately published. In their submission (the Report of the Subcommittee) the chairman and the secretary once more referred to the Subcommittee’s enclosed draft as being only an ‘outline’.59 Clearly, in the summer of 1866, it was assumed that once the full Committee and the House had endorsed the outline the Sub-committee would get down to preparing a detailed draft or a Bill for legislation. This never happened. Under the pressure of circumstances the Subcommittee’s ‘opinion’ eventually became Law XII of 1867: the constitutional Settlement between Hungary and the empire turned out, in substance and in form, to be a subcommittee’s interim report. As Deák’s circle had feared all along, the Hungarian radicals gained in strength after the rout of the Austrian army at Königgrätz and the

57 The Committee ‘jobbnak véli egyelőre a főelveket s azok folytán e javaslat vázlatát állapítani meg, és e javaslatot, további határozás végett, a képviselőház elé terjeszteni’. Minutes of sittings on 5 April and 3 May, Képv. irom., II, pp. 67–8. On the terms of reference see I. Zolger, Der staatsrechtliche Ausgleich zwischen Österreich und Ungarn, (hereafter: Zolger), Leipzig, 1911, pp. 6–8. 58 Kónyi, Deák Ferencz.., III, pp. 738–48. 59 Vélemény, (opinion) and vázlat (outline) are used, Képv. irom., II. p. 69. 248 chapter seven humiliating terms of the Peace of Prague.60 Wringing out concessions from an autocrat temporarily in difffĳiculty was always part of the doubtful wisdom of politics in Eastern Europe. The Left Centre increased its demands: it refused to accept the existence of közös ügyek and attacked the majority report. On the other side, the monarch and the government—although softened up by the disaster—felt that the area of közös ügyek had not been adequately defĳined by Deák’s draft plan, especially what concerned the system of army recruitment, the servicing of the state debt and the economy.61 The monarch was still reluctant to appoint a Hungarian Ministry—although he might have been less so, had Deák’s Moderates been in coalition with government Conservatives. Mailáth, the Hungarian Chancellor, was even asked to work out an alternative constitutional proposal.62 Baron Beust’s visit to Pest to see Deák in December (ad nauseam referred to by historians as the key event in what was to come) failed to narrow the outstanding diffferences between the crown’s demands and the Subcommittee’s outline. Conflicting claims about rights over the army were again seen as the greatest stumbling block.63 There was some danger that the chances of a settlement would slowly slip away in a typically polarized situation: the more moderate Deák supporters moving towards the government which had no chance of selling any settlement whatsoever to the country, and the more radically inclined joining the Left Centre whose leaders had no more of a chance in 1867 to be considered regierungsfähig by the monarch. The pressure for a settlement, however, was now mounting and the monarch understood that Deák was the only one who could arrange it. Deák’s majority held because Franz Joseph gave way in matters of substance, whereas Deák’s concessions were either largely terminological or incon- sequential.64 Under pressure from his own party, however, Deák had to

60 For important evidence see J. Galántai, ‘Osztrák-magyar egyezkedés 1865–1867’ (Austro-Hungarian Negotiations) Századok, 1967, pp. 1303–04. 61 Belcredi in the Council of Ministers on 28 October 1866, H. Brettner-Messler, (ed.), Die Protokolle des österreichischen Ministerrates 1848–1867 (hereafter: Brettner-Messler), 1973, VI/2, p. 285; Kónyi, Deák Ferencz…, IV, pp. 46–52. The monarch’s reservations were listed in the rescript to parliament, reconvened on 19 November 1866, ibid., pp. 81–2. 62 György Mailáth’s draft ‘bill’ was similar to Deák’s in scope but was, at least in terminology, more ‘modernistic’, had wider közös ügyek, stronger Delegations and it whittled down the army rights of the ország, Kónyi, Deák Ferencz…, IV, pp. 163–69. 63 Csengery’s and Baron Orczy’s diaries in Kónyi, Deák Ferencz…, IV, pp. 147–48, 151. 64 During and after the so-called Wiener Vereinbarungen, Kónyi, Deák Ferencz…, IV, pp. 170–8, 191(!), 192 fff., 207 fff.; cf. J. Garamvölgyi, Quellen zur Genesis des ungarischen Ausgleichsgesetzes von 1867, Munich, 1979, No.17; Brettner-Messler, pp. 399, 401. the dualist character of the 1867 settlement 249 agree to a Hungarian ministry being appointed only after the Subcom- mittee’s Report – revised as agreed – had been put through the Committee of Sixty-seven. On the other hand, Franz Joseph agreed to appoint the Andrássy ministry before parliament had accepted the Report.65 ‘Legal continuity’ was restored through procedural quid pro quos, mutual suspicion being unavoidable in conditions of structural dualism. When the Report was put to the Committee the changes, agreed to in the Wiener Vereinbarungen and after, were tabled by Deák’s supporters as amendments.66 Report and amendments were all carried in seven sittings held between 28 January and 6 February 1867. Deák was still leaning over backwards to appease the Left Centre.67 He resented the innuendo which supporters of the Settlement would have to bear from the Opposition from that time on until 1918: that he had abandoned essential ország rights, including some that had been secured in the April Laws.68 The Left Centre offfĳicially withdrew its minority report and attacked the majority’s with venom. But Ghyczy and Tisza still desired a settlement with the crown on the basis of the Pragmatic Sanction, and of the recognition of the monarch’s reserved rights but not the közös ügyek – an aim as unrealistic politically as it was incongruous constitutionally. On 17 February 1867, less than a fortnight after the Report had gone through the Committee, the long battle for restoring legal continuity ended in success: Andrássy was appointed Minister President and soon after that, the whole Cabinet was named. It was the ország’s turn again. Deák’s course now gained strong support and the revised Report was put to the House. The March debate was arduous but, once more, the majority held fĳirm and not a comma of the text was allowed to be altered. The ‘resolution’ of the House was then accepted by the Upper House—in its entirety, and in one sitting69 The Report became an országos határo- zat (ország resolution) on the ‘common relations’.70 By this time no one regarded the Report as only an ‘outline’; it was now being referred to as

65 E. Wertheimer, Graf Julius Andrássy etc. (hereafter: Wertheimer) Stuttgart, 1910, I, p. 263. 66 Ágost Greguss, A magyar országgyűlés képviselőháza által a közös viszonyok tár- gyában kiküldött hatvanhetes bizottság tárgyalásai (The debates of the Committee of Sixty-seven), (hereafter: Greguss), 1867, pp. 45, 50, 52, etc. 67 In matters still outstanding between the crown and parliament, e.g. the powers of the honvédelmi ministry, Kónyi, Deák Ferencz…, IV, p. 197. 68 Ibid., p. 298. Historians inspired by Kossuth have, understandably, a fĳield day in discussing the repeal from among the April Laws of what was, in fact, vague, contradictory or unworkable. 69 On 3 April 1867, Főrendiházi napló (Journals of the Upper House), I, p. 199 fff. 70 Képv. irom., II, p. 113 (közös viszonyok). 250 chapter seven the közösügyi munkálat (work on the common matters). Any attempt to prepare a more detailed plan would have opened a Pandora’s Box involving the crown, its government in Cisleithania, the Reichsrat and the Left Centre. The monarch could not wait; the Andrássy Cabinet and the Deák party were not prepared to tempt fate by reopening debate on all the contested points for a third time in the hope of winning acceptance of a more detailed draft. The majority was hanging on to what it had already attained. Bearing in mind the conventions of diaetalis tractatus, it is difffĳicult to see how the Report could have possibly been sent back to the drawing board after the ‘understandings’ reached in Vienna and Pest in January. After the Report became an országos határozat, the concertatio (through which the representatives of the crown and of the two Tables had established the text of each articulus in the old days) was more or less complete.71 The text had already acquired what used to be called the monarch’s benigna annuentia (preliminary sanction). Anything other than resubmitting the Report as a parliamentary bill would have amounted to an attempt to renegotiate a settlement that had already been agreed on.72 Parliamentary discussion of the text when it was resubmitted as a bill by the government in May was formal in both Houses, and was confĳined to the point of whether or not the országos határozat had been preserved intact. Parliamentary debate was just as short on the other ante-coronationalis bills dealing with the revision of the April Laws (consensus on this had likewise been reached with the crown before Andrássy’s appointment),and with matters such as the law on the abdication of Ferdinand, Franz Karl’s renunciation of his claims to the throne, and also the Diploma text— which was now updated in great haste. After the coronation of Franz Joseph on 8 June the Settlement corpus—the fĳirst twelve laws of 1867— were sanctioned and then promulgated in a decretum form.73 They constituted an all-embracing constitutional agreement on most of the points

71 For the remarks in the House of Csengery, committee rapporteur of the Bill, on 27 May see Képv. napló, IV, p. 189; for Deák’s, see p. 190, for the minister president’s, p. 195. 72 Kónyi, Deák Ferencz…, IV, p. 143, V, pp. 77–9 (on the decision taken by Deák, Andrássy and others). References in the országos határozat to törvény and alkotandó törvény (Section 40) were replaced throughout the Bill by jelen határozat (Képv. irom., II, p. 113 fff.; cf.ibid. , p. 170 fff.) The change was listed and discussed by Zolger, pp. 20 fff., 190 n.2, 193 n.4, etc. 73 The royal sanction was given on 12 June and 28, July 1867, Márkus, p. 344. The inaugural coronation Diploma, enacted as Law II of 1867, legitimized, as it had always in the past, the constitutional division of power between crown and ország. the dualist character of the 1867 settlement 251 that had kept the crown and Hungary divided for two decades. The principal element was the országos határozat (the revised outline of the Subcommittee of Fifteen), enacted as Law XII of 1867: ‘On the relations of common interest between the lands of the Hungarian crown and the other Lands under His Majesty’s rule, and the method of their treatment’.

Law XII of 1867

Law XII neither set out the principles of the Hungarian constitution nor defĳined Hungary’s legal connection to the empire. The Law—or more accurately the országgyűlés (parliament) and the king referred to in the law—‘recognized’ that certain tasks or matters were közös (common) to all Lands of the Monarchy; it listed rather than defĳined them and it laid down general rules of procedure as to how they had to be administered. Since the Settlement was attained through traditional bargaining between two parties who jealously guarded their respective rights, and accepted obligations toward each other gingerly, it is hardly surprising that the Law preserved an essentially dualistic legal outlook. Monarch and ország were the principal ‘subjects’ of this dualism rather than ‘Austria’ (the other Lands) and Hungary—although their dualism too was in a subsidiary and dependent position an indispensable part of the Settlement. But an examination of the Law and contemporary statements about it leave little doubt that it was the endemic monarch-ország dualism that shaped its character or nature. Signifĳicantly, the Law does not consistently maintain the legislator’s impersonal language that a unifĳied system of public law necessarily implies. The language of diaetalis tractatus all too frequently breaks through: the országgyűlés recounts its dialogue with the monarch, it quotes from the Gracious Speech and from its Addresses; it solemnly declares, it insists, desires, remonstrates, protests, warns, makes reservations, and so on. Monarch and ország appear in the Law as two distinct subjects* of right.74 They talk to each other, making joint declarations and provisions in the Law, which is clearly a contract between them. Together they list those tasks of government which they ‘recognize’ to be common, and

74 An asterisk (*) will denote the appearance in the law of either the monarch or the ország as a subject of right. Following general usage, I translate országgyűlés before 1848 as ‘diet’ and after 1848 as ‘parliament’. 252 chapter seven expressly exclude others from the list through the cumbersome process of restating their rights and duties towards each other, and – for the fĳirst time – towards the other lands, too. The Law explains (abundantly) why the other Lands had to be involved. A one-page preamble (and also a supplementary clause at the end) added to the text when the Report was resubmitted as a bill explained the aim of the legislator by referring to the tractatus. The monarch – it begins - conferred constitutional rights on his Other Lands, and in his Gracious Speech [in 1865] called upon parliament to make provisions for preserv- ing both Hungary’s internal autonomy and the empire’s security which ‘the fundamental contract’, the Pragmatic Sanction, guaranteed, provisions which would ensure the constitutional influence of Hungary and the Other Lands over the management of the common matters. The preamble clearly states that the constitutional conversion of the monarch’s rights in the Other Lands makes it incumbent on Hungary to make provisions for the management of the common matters. The law emphatically returns to this theme—four times. Section 5, for instance, explains that as long as the monarch was absolute ruler of the Other Lands, he, as their representative, and the diet had made the necessary provisions; but now, the constitutional influence of the Other Lands, quotes the law from the Gracious Speech, ‘cannot be neglected’. The fundamental premise that Hungary’s legal obligations all derive from the Pragmatic Sanction runs through the paragraphs that faithfully follow the Subcommittee’s outline and indeed Deák’s May Programme: general principles followed by a list of common matters and then common institutions. Section 1 states that the legal connections between the Lands under the monarch are based on the Pragmatic Sanction of 1723. Section 2 derives from this the principles of one common (egy közös) monarch, the indivisible possession of the Habsburg Lands, and joint defence as ‘a common and mutual obligation’. The following paragraph declares that the ‘Pragmatic Sanction had also ‘contracted’ to preserve intact Hungary’s constitutional internal autonomy. After these declarations, set out at length, the fĳirst enacting clause stipulates that Hungary* shall in future as in the past fulfĳil the obligations that the Pragmatic Sanction imposes, but shall not take upon itself* obligations beyond those (Section 41. Then—as already mentioned—the Law in Section 5 slips back to make yet another declaration about constitutional conversion. This is followed by Section 6 which emphasizes that both His Majesty and parliament ‘recognize’ the Pragmatic Sanction to be a common starting point. The Law then in Sections 7 to 17 lists the common matters. the dualist character of the 1867 settlement 253

The gist of Section 7 is that although the monarch is common, yet the Pragmatic Sanction does not require the Lands to provide for the household of their monarch jointly (közösen). By virtue of the Pragmatic Sanction, states Section 8, Hungary* regards the external relations that concern all the lands under His Majesty’s rule together to be common matters. The common foreign minister ‘in agreement and with the consent of the ministries of both parties’ will represent the empire (birodalom) ‘diplomatically and commercially’. ‘Each ministry shall inform its own legislature of the international treaties’ (presumably after they have been concluded). The paragraph gingerly avoids distinguishing the monarch’s reserved (unconverted) rights from the shared (parliamentary) rights in foreign afffairs. In the clauses on defence (Sections 9–15), on the other hand, the Law carefully distinguishes the monarch’s and the ország’s shared and reserved rights. More than just an important aspect of the Settlement, defence was— and had been for centuries—at the heart of the crown-ország relationship. The dynasty had been invited to the throne by the diet in the sixteenth century to help defend Hungary; the enactment of the Pragmatic Sanction in 1723 was justifĳied by defence needs. The dynasty secured its hold over Hungary by stationing there a large permanent imperial army over which the ország had no political control whatever. It was in the interest of the empire’s great-power status that the monarch embarked on tractatus with parliament in 1866. And, arguably, the most important military reform during the long reign of Franz Joseph, the introduction of general conscription in 1868, could not have been carried out without the 1867 Settlement. Before 1848 the nobility, in return for the secure enjoy- ment of its fundamental social privileges, had had the duty to assist the monarch when called upon to defend his ‘possessions’. On the other hand, the nobility had rights, too. Whatever strength the structurally dualistic Hungarian constitution had was to a great extent due to the ország’s right to grant the levy of recruits and cash subsidies. These were the nuts and bolts of a mechanism that at times appeared to be one of the most efffective aristocratic constitutions on the Continent. The all-powerful emperor-king could lose face with the ország only when it came to the levy, and the ország used this lever habitually in the attempt to secure constitutional balance of a sort – though normally the scale’s tilted heavily towards the crown. Not surprisingly, the sharing out of the army rights proved to be the most formidable obstacle during the negotiations that preceded the Settlement. Securing intact the monarch’s autocratic powers over the army was seen as the prerequisite of its organizational unity, and that, in turn, as a precondition of the empire’s existence as a European 254 chapter seven great power. On the other hand, Deák’s May Programme had, understandably, a longer list of demands concerning the army than any other subject. How did the law deal with this most sensitive area? In Section 11 ‘it is recognized’ (i.e., by the ország) that ‘by virtue of the constitutional monarchic rights of His Majesty* in defence matters, everything that concerns the unitary leadership, command and internal organization of the whole army, and thereby also of the Hungarian army as a complementary part of the entire army, is reserved to His Majesty*’. This meant that neither parliament nor the Hungarian government acquired competence in these matters. ‘But’—states Section 12—‘the ország* on the basis of the existing laws reserves to itself 75 in the domains of legislation and of government’ the right to grant the levy of recruits, to fĳix their period of service and to arrange their quartering and supply. Then, with some emphasis, ‘the ország* declares’ that the system of defence can be established or altered only ‘with the consent of the Hungarian legislature’. Parallel legislation, based on identical principles, is to be helped by intergovernmental negotiations and deputations76 sent out by the two legislative bodies. By and large, the Law assigned disposition over the army among the reservata, and the raising of the army to the communicata of the sovereign’s rights. Through these crucial provisions the ország unequivocally recognized the monarch’s autocratic rights over the army so far as its organizational unity required it. Hungarian desire for a national army was to be satisfĳied with the promise made by the monarch on the appointment of the Andrássy ministry to create the honvédség (Landwehr). Control over this second-line force was regarded, from the inception of the idea to its realization under Law XLI of 1868, as a right shared by the monarch and the ország.77 The shared rights and the ország reservata listed in Section 12 offfset and compensated for the reservata unambiguously assigned to the monarch.78

75 It is not quite clear whether these tasks are reserved (i.e. unconverted) vis-à-vis only the Other Lands or the monarch as well. 76 The passage was inserted in the text at the crown’s insistence. Ad hoc parliamentary deputations were never sent out under this paragraph. 77 This view had to be made acceptable to the army establishment. Section 2 of the law stipulated that His Majesty could order the mobilization of the honvédség only if the ‘responsible minister’ countersigned the order. The wording of the honvédeskü (not in the law) likewise suggests that the honvédség was regarded as being under the ‘shared’ monarchic rights. 78 Andrássy’s conflicts with the military establishment over the reforms agreed to in 1868 centred on the acceptance of the division of army rights enacted in the Hungarian Settlement rather than, as has been suggested, on some further Hungarian army demands. the dualist character of the 1867 settlement 255

Following the provisions for the army, the Law turns to topics that involve the other lands more closely. ‘Parliament;* states Section 16, ‘recognizes’ the fĳinancing of theközös ügyek to be közös, i.e. a joint obligation. The costs are to be apportioned through ‘mutual bargaining’ by the two parties from time to time through ad hoc parliamentary (later called ‘quota’) deputations (Sections 19–22). Like the sharing out of the army rights, the management of the common matters was a sensitive topic. ‘Parliament* declares’, states Section 23, ‘that it wants to establish contact with the other lands’—provided that the independence of both sides is preserved. The Law repeats yet again that this change does not arise from any legal obligation but because His Majesty has transferred constitutional rights to his other lands. The paragraph is no mere repetition: it stipulates that parliament can have contact with the other lands only if ‘full constitutionalism’ is. established in them. (Apparently the ország was not prepared to bargain with the monarch twice: fĳirst as constitutional king and then as fully autocratic emperor.) The Law introduces the common institutions in a remarkable manner. It defĳines, if that is the right word, the powers of the common ministry and of the Committee for the common matters, the Delegations, in a negative form, by exclusion. ‘A common ministry must be created’, stipulates Section 27, ‘for subjects (tárgyak) which, being truly common, do not concern the separate governments of Hungary, or the Other Lands’ over which it ‘cannot exert any influence’. And: ‘for the management of that portion of the common matters that is not purely governmental’ declares Section 28—Hungary* does not accept the Reichsrat or any central parliament ‘but insists’ that it and the Other Lands be regarded as equal partners negotiating with each other on a basis of ‘complete parity’ through Committees or Delegations sent out for each session by the parliament and the Reichsrat. The Delegations are to sit separately and communicate in writing (just as the two Tables of the diet had done before 1848). After three exchanges of messages (the old nuncium in a restricted form), they can vote together—but even then parity is provided for through a mandatory system of pairing. The legislator was plainly concerned to preserve every inch of separate standing for Hungary, and hardly to set out the legal competence of the

Cf. G.E. Rothenberg’s article (referred to in footnote 39) and author’s The Army of Francis Joseph, Indiana USA, 1976, pp. 75–8. The Hungarian army demands made after 1902 should not be read into the conflicts that had preceded the enactments of the three defence laws of 1868. 256 chapter seven common institutions. There is the brief statement, though, that the ‘most important task’ of the Committee is to pass the annual common budget— prepared by the common ministry—‘with the influence of the two responsible ministries’ (Section 40). The items of the common budget are, however, also to be included in the Hungarian budget. Parliament raises, the Hungarian government collects and the common minister of fĳinance disburses the money (Section 41). In addition to what the common responsible ministry puts before the Delegations, each Committee has the right to ‘initiate’ proposals that strictly concern the common matters (Section 44). When the two Delegations are in agreement, their ‘resolutions’—‘if they require the monarch’s assent’—shall be submitted to him. ‘If they receive His Majesty’s approval’, or ‘sanction’, the resolutions are binding and are implemented in Hungary only through her responsible ministry (Section 43). Notably, these carefully vague formulations left wide open the question of the boundaries of the monarch’s reserved rights. Along with the rights relating to the budget, there are also provisions for constitutional control. These Western borrowings sit rather uneasily on the other provisions. Each Delegation has the right to question the common ministers; they, in turn, have the right to appear before them and the duty to answer questions and furnish information—‘if it can be done without harm’ (Section 39). The common ministry as a whole, and likewise the holder of each portfolio, ‘shall be responsible’ (Section 27). The common minister of fĳinance is accountable to the Delegations (Sections 41–42). (So much was enough for the foreign bankers.) The principle behind these brief provisions was legal responsibility rather than political save of the most innocuous kind. The procedure for impeachment is set out in Sections 50 and 51 in case either of the two Delegations wants to initiate it against the common ministry or any single minister ‘for the violation of the constitutional laws’. If the two Committees concur, they can go ahead with it (no one ever tried!). These provisions were adequate in themselves. Nevertheless, the common ministers’ responsibility was a weak graft onto the rest of the provisions, offfering negative, i.e. vacuous, defĳinitions of legal powers designed to bring the common ministry under efffective constitutional control. And then there was the inherent weakness of having two separate Delegations, without efffective power, and operating in a constitutionally grey area. The Law left in obscurity where ‘common matters’ implied joint management by Hungary’s and the Other Lands’ representatives and where it allowed the monarch’s authority alone to be efffective. The boundaries between the shared and the reserved monarchic rights were undefĳined; the dualist character of the 1867 settlement 257 and where the law is silent in a largely customary legal system, the presumptio juris is on the side of the autocrat, whatever the facts of the case might be. The last section of the Law deals with the common economic subjects. They are put under yet a diffferent schedule. Defĳined (once more in a negative form) as ‘other public matters of great importance whose common character does not arise from the Pragmatic Sanction’ (Section 52), economic tasks are to be managed jointly by ‘the two sides’ through agreements based on political considerations. By implication, the monarchic rights involved in the common economic tasks are shared (and where they are not, they are not ‘common’). Even in this section, the meander- ing, repeated declarations and remonstrations hardly suggest that the Law was drafted in the century of the railways. Under the law, Hungary* cannot be charged for a state debt incurred ‘without the ország’s lawful consent’ (Section 53). Further down: ‘the ország* solemnly declares herewith in its resolution’79 that it will not in future ‘recognize any legal obligation to repay state debts which it has not agreed to (Section 57). However, ‘out of considerations of equity’ the ország* is prepared to accept a share of the fĳinancial burden that ‘the policies of the absolute system has created’’ and to enter into bargaining with the other lands as a ‘free nation with another free nation’ (Sections 54 and 55). This principle of Hungary and the other lands acting as legally independent lands (országok) through decennially renewable agreements applies to the Customs and Commercial Alliance, and to indirect taxation and coinage (Sections 58–66). If the bargaining fails, Section 68 notes laconically, ‘the ország* reserves its right to make lawful provisions independently, and all its rights in this regard, too, remain unimpaired’. The dualism, or principle of parity which the Law secures for Hungary vis-à-vis the Other Lands in economic matters, does not necessarily involve any claim to ‘state independence’. But it does assert Hungary’s right to free egyezkedés80 (that is, tractatus) with the other lands in the so-called ‘non-pragmatic’ subjects. The supplementary Section 69 does not require a formal adoption of the Hungarian Law in extenso by the Reichsrat in order that the Settlement should take legal efffect. That was thought neither legally necessary nor politically feasible. The paragraph declares that the above megállapodás

79 határozat, that is ‘resolution’ of the House (Section 57), cf. note 72. 80 ‘egyezkedés’ is the key term in the sections that follow the provisions of the state debts (Sections 59–68). The principle was implemented through intergovernmental negotiations and ad hoc parliamentary Deputations. 258 chapter seven

(agreement?) sanctioned by ‘royal approval (jóváhagyás) is enacted as law. The clauses concerning the management of the common matters, however, are to ‘come into force’ after the Other Lands have also, for their part, given constitutional consent to their ‘substance’. Clearly parliament expected that the passing of the Law would lead to an arrangement with the Other Lands, in addition to being a megállapodás with the monarch, on the management of the common matters. But it was a point of debate whether or not the legislator meant to extend this view to the rest of the Law and specifĳically to the ‘recognition’ of the common subjects. Section 18 refers explicitly to the common subjects about which a megállapodás is stipulated between ‘the two parties’ before they can start bargaining over quotas. The context strongly suggests that the legislator had ‘Hungary’ and the ‘other lands’ in mind as the ‘two parties’. Shortly after the Law had been enacted there were statements in parliament to that efffect. But Antal Csengery’s view prevailed, at least in the House. In his committee report on the Quota Bill, passed by a great majority, Deák’s close friend and co-drafter of the Law, insisted that Section 18 must have meant parliament and the king rather than Hungary and the Other Lands.81 For all that, Csengery’s report did envisage egyetértés—an understanding—between Hungary and the Other Lands over the list of common matters. The ambiguity was never resolved; parliament insisted that no one but itself and the king were entitled to defĳine the sphere of common matters between Hungary and the rest of the empire; yet parliament also insisted that its defĳinition of the common matters be accepted by the representatives of the Other Lands.

The Nature of the Settlement

Deák’s Settlement, enacted as the fĳirst twelve laws of 1867, achieved what it set out to do in some but not in all respects. The Settlement recognized those of the monarch’s autocratic rights that Franz Joseph held to be essential for the safety of the empire as a great power; it created institutions for dealing with the common matters over which constitutional control was now formally extended. And it preserved the ‘lawful independence’ of Hungary qua ország as Deák, his associates and the vast majority in both Houses of parliament understood it in 1867. For them,

81 Report of the House’s Central Committee, 22 November 1867, Képv. irom., III, p. 39; cf. Képv. napló, V, p. 256 fff; Ghyczy, pp. 257, 310–11; Zsedényi, p.282; Gubody, p. 284. the dualist character of the 1867 settlement 259 the monarch’s empire and the ország coexisted in diffferent though over- lapping spheres. But there was no need to sacrifĳice the rights of either to preserve both spheres intact. The mutual recognition of rights helped to maintain for decades to come a constitutional balance between crown and parliament as the supporters of the Settlement, ‘the 67ers’, understood it. True, in the long run, the division of rights in Deák’s conversion failed to satisfy Hungarian political aspirations—particularly as regards the army. But, in 1867, the large majority of politicians saw the kiegyenlítés or kiegyezés as a successful egyezkedés, that is, tractatus, after kölcsönös alkudozás (mutual bargaining) – rather than as a ‘compromise’ in any of the deprecatory senses that have over the years accrued to kiegyezés, implying, as the term does today, the whittling down of Hungary’s historic rights. The Settlement enabled the Magyar nemzet of the landowning classes and the intelligentsia to secure fĳive decades of dominance over all other social and national groups in the Lands of the Hungarian crown. It opened up the prospect of social progress through the difffusion of western European culture, a process from which most social groups benefĳited in one way or another. Deák’s political masterstroke was the fĳirmness with which he held back more adventurous spirits to ‘wring’ (kicsikar) further desiderata from the monarch after Königgrätz. It was not a question—as he recalled in 1868—of asking all that the nation could get at the moment, but of asking no more than it was certain of being able to keep.82 Deák has been praised by historians for his immense knowledge of Hungarian law; occasionally, too, for his intellectual integrity and shining superiority of argument over the lesser men of the Left Centre and the Far Left.83

82 Deák’s speech to the burghers of Pest on 17 December 1868, Kónyi, Deák Ferencz…, IV, p. 152 ; see also Eisenmann, op.cit., p. 695. 83 The critical argument between Deák and his opponents developed in the Committee of Sixty-seven on 29 January 1867 over the question of whether Hungary, by virtue of the Pragmatic Sanction, was under obligation to assist only its monarch to defend all his possessions (the Left Centre view)’, or whether the obligation extended to the other Lands as well (the majority view). Eötvös made the point in the debate that precisely because the obligations were mutual for all the Lands they involved the right, too, for Hungary to expect help when the need arose, not merely from its monarch but from the other Lands as well. Tisza then rejected Eötvös’s argument: Hungary as ‘an independent state’ was under obligation to defend its monarch ‘who by virtue of the connection is obliged to defend us with the strength of his other states, but the obligation concerns the monarch and not his) countries’. Jókai intervened, moving away from the point, after which Deák asked how Hungary could be bound to defend all the possessions of the monarch without being bound to defend the other Lands whose hereditary ruler was the same monarch. In his view unless the defence obligation was recognised as mutual between all the Lands, as 260 chapter seven

These qualities did count in Hungarian politics in the 1860s. Disafffection with Deák’s Settlement remained a secondary feature of politics84 and the implementing instruments were invariably passed by large majorities in the House85 in 1867–68 while the Upper House sank into blissful oblivion. For years, parliament was eating out of the government’s hand. This may, to some extent, have been due to the robust patronage at the disposal of the ministers, which weakened the interest the job-hunting intelligentsia took in political issues. However, Deák’s supportive authority was indispensable to the government’s position in parliament. Where others before him failed, Deák succeeded: he delivered to the monarch and to his nation what he had pledged. The Settlement is more vulnerable when, with the benefĳit of hindsight, we judge it as a piece of modern constitution making. Law XII of 1867 did not successfully transform the customary monarchic and ország rights and duties into constitutional laws. It may be unrealistic to expect an amended interim sub-committee report to have lifted the ‘imperial connections’ out of the jungle of rival claims over customary rights, and to have created legal spheres for the common subjects. Even a better-prepared bill, however, with the text tidied up and enlarged, would not have fundamentally changed the fĳinal product. Not incidental circumstances but deeply ingrained attitudes shaped the character of the Law. In the past, no detailed statutory provisions had ever regulated the monarch-ország relationship, and Hungary had no interest whatever in being tied to the other Lands by precise legal arrangements (the less specifĳic these were the better!) but only by a machinery for ad hoc free bargaining. Substantive points in the law give hostages to

a consequence of Tisza’s ‘quibble’, Hungary might fĳind itself duty bound to defend the other Lands—but not vice versa. Ghyczy came in, insisting that Tisza’s comment merely followed from the principle of ‘personal union’, without taking up Deák’s points. Tisza did not go back to them either. Greguss, pp. 36–8, 40, 93–4. 84 Some counties ‘resisted’ the establishment of ministerial control and the ‘Heves afffair’ in 1867 was a serious embarrassment to the government. 85 After a long debate over the bill on the state debt the government had a two to one majority in the vote in the House (229 for, 110 against) on 15 December 1867, Képv. napló, VI, pp. 150–2. The House showed only limited interest in discussing the bill on the Customs Alliance. At the close of the general debate on 17 December 1867 the vote was taken by rising and the debate over the paragraphs had to be held over to the following sitting as the House lost its quorum (of the 402 members, only 105 were present) ibid., p. 204. In sharp contrast, interest in the three defence bills was strong and the debate in the House prolonged. But in the end the government, with Deák’s fĳirm support, won hands down. At the most important vote, held on 4 August 1868, of the 281 members present, 235 voted for, and 43 against, with 120 absent; ibid., IX, pp. 425–26. the dualist character of the 1867 settlement 261 the future, reduce the scope of free bargaining and limit Hungarian ‘independence’. From its inception, Deák’s plan evolved as a tractatus with the crown rather than negotiation with Cisleithanian politicians—which Deák carefully avoided86 This basic orientation reinforced the structurally dualistic Hungarian attitudes—not that they needed much reinforcing. Had they had the chance, Eötvös and other associates of Deák’s would have produced a more liberal and less separatist scheme.87 But support for such a scheme in the gentry-dominated parliament was likely to be scant. The fact remains that Eötvös kept his reservations private, supported Deák entirely in public and became a senior minister in the Cabinet that implemented his Settlement. Deák’s plan blended precepts, maxims, rights and duties—the declaratory language of customary law—with the impersonal enacting language of modern statutory law, and the former dominated over the latter. The scheme distinguished between ‘tasks’ of government; it did not distribute state power between functionally dif- ferentiated agencies: the legislative and the executive powers appear only segmentarily and the judiciary not at all. The modern judicial process, indeed the very idea of independent arbitration between agencies of power, was quite alien to the ethos of constitutionalism in a union of a dynasty and its lands. The ország and its monarch and the other lands had to slog it out between them. God might arbitrate there—not a constitutional court. Deák’s conversion—as most other constitutional blueprints in the empire—was ‘historical’. It was based on the precepts of a (largely) customary constitution. Instead of enacting provisions to create a new order, Deák’s law, as we have seen, ‘recognized’ some közös ügyek as converted birodalmi viszonyok or kapcsolatok. These were conceived of primarily as

86 On Zsigmond Kemény’s attitudes see I. Diószegi, ‘A Deákpárt és a német egység’ (The Deák Party and German Unifĳication),Századok , 1970, p. 232. 87 Cf. diagram on p. 246. A brilliant intellectual rather than a politician, Eötvös changed his views more frequently than others and he was aware of this (J. Eötvös, Vallomások és gondolatok, 1977, p. 679). Much less consistent than others on the degree of autonomy he envisaged for Hungary in the empire at diffferent times, he was more consistent than most politicians in arguing from the 1840a onwards (and even after he had accepted Deák’s dualism) for the establishment of proper constitutional control (ibid, pp. 571 fff, 609 fff, 626 fff, 638 fff, 695–6, 713–6). Whereas Deák appealed to the monarch, Eötvös looked for support among the Liberals of Cisleithania in order to build a modern constitutional state out of the empire. Cf. J. Antall, ‘Eötvös József Politikai Hetilapja és a kiegyezés előkészitése 1865–1866’ (József Eötvös’s Political Weekly and the Preparation for the Compromise), Századok, 1965, p. 1129. 262 chapter seven rights and obligations binding all the lands, and were teased out of a hypothetically reconstructed viszonos függőség between the monarch and the ország that the fundamental contract—the Hungarian Pragmatic Sanction—imposed on both. Deák’s reconstruction was an ingenious attempt to adjust the ‘modern’ constitutionalism of Montesquieu to the customary precepts peculiar to Hungary’s structural dualism, to adjust the imperial connections to Hungary’s needs. But it was not conducive to an efffective conversion of rights. The fragmented character of the customary right-based ‘connections’ between Hungary and her monarch was reproduced in the disjointed machinery, the motley collection of deputations and Delegations which the Law generated for the common imperial matters. The diversity of ‘treatment’ is illustrated by the left hand side of the diagram which lists some of these matters and the institutions which the Law created as competent to manage them. The provisions of the Law, however, were not haphazard. Deák’s constitutional principles were implicit in the diverse institutional arrangements. A classifĳication of the common matters according to what can be considered Deák’s assumptions as to their legal nature makes the Settlement more intelligible than it appears at fĳirst sight (see right side of diagram). The legal nature of the common matters (as broad government tasks) can be hypothetically reconstructed on the basis of two criteria: (1) the nature of the monarchic right involved: whether the Law treated a certain matter as a reserved or a shared monarchic right; (2) the contractual basis: whether or not the Law treated a certain matter as common by virtue of the obligations imposed on Hungary by the Pragmatic Sanction. The two criteria combined generate three classes:

I The monarch’s reservata in the pragmatic subjects. A part of defence formed this, constitutionally unconverted, autocratic sphere. As the monarch and his common ministers’ powers were without statutory regulation, this class might well have been considerably broader than what is partly implied and partly recognised in paragraphs 8 and 11 of the Law concerning the conduct of foreign policy and army leadership. II The shared rights (of monarch and ország) in the pragmatic subjects. After constitutional conversion, the ország both maintained its old rights and acquired new statutory rights and constitutional influence which, however, it had to share with the other Lands on the basis of parity. The budgetary right for the common subjects, the answerability of the common ministers, the (undefĳined) influence of the the dualist character of the 1867 settlement 263

Hungarian ministry on foreign afffairs and the presentation of the international treaties to parliament are the obvious examples. The Hungarian political élite understood and welcomed this increased influence in 1887 but probably not the half-educated mass of the gentry. Later, a growing proportion of the elite forgot what their parents had known about the Settlement. III In the shared and non-pragmatic or ‘dualistic’ subjects, Hungary could bargain freely on the basis of parity with the Other Lands, unimpeded by any legal obligation derived from the Pragmatic Sanction. In this sphere, in 52 and the subsequent paragraphs, the ország acquired statutory rights in a wide range of economic subjects. In this respect, many people saw the Monarchy already in the late 1860s as a ‘dualist’ state of ‘Austria’ and ‘Hungary’ in the modern constitutional sense. All in all the Law accomplished a constitutional conversion with the attainment of he maximum possible separate standing for Hungary and the minimum necessary limitation of the crown’s powers.88 The majority in parliament and Deák himself regarded the empire, after the Settlement had been accomplished, as a monarchic union of Lands. The union was, in their view, based on the Pragmatic Sanction as a fundamental contract, and on a new and lasting (though not forever immutable) Settlement—a new contract with the crown and, in some respects, with the other Lands—that guaranteed constitutional government. Hungary was seen as being part of a monarchic empire— although not of an ‘Austrian’ empire.89 The fĳirst two ministers president,

88 Austrian Liberal and Hungarian comments made in 1866 and 1867 about the failure of Deák’s draft to establish proper constitutional control are reviewed by E. Somogyi, A birodalmi centralizációtól a dualizmusig (From Imperial Centralisation to Dualism), 1976, esp. pp. 142, 196–8, 205 fff. C.A. Macartney emphasised Deák’s lack of interest in ‘defĳin- ing the limits of the ‘regia potestas’, The Habsburg Empire 1790–1918, 1968, p. 565 n. 2. 89 After the enactment of the ‘imperial’ constitution in March 1849 the term ‘birodalom’ created undesirable connotations in the minds of most Hungarians. These were reinforced under Schmerling when resistance to sending representatives to the Reichsrat meant the rejection of the Centralist conception of the ‘Austrian empire’. But one would be hard put to fĳind a single speech in parliament in 1866 that discussed the constitutional question in terms of the relationship between two legally independent states (i.e. ‘Hungary’ and ‘Austria’). Deák and his associates sometimes used modern juristic language but they never used the term ‘Hungarian state’ normatively in any context that involved the reserved rights of the monarch. While most supporters of Deák in the 1860s and in the 1870s claimed that Hungary was not part of the ‘Austrian empire’ (but see Eötvös, Kónyi, V. p. 167) they viewed Hungary as part of a monarchic empire (e.g. Kónyi, IV, pp. 127–8, 203–4, VI, pp. 64–6, 74–5). Ghyczy held that the Lands of the Monarchy (including Hungary) formed one empire or state for external relations (16 February 1866, Képv. 264 chapter seven

Andrássy90 and Lónyay had a more modernistic outlook. They were not, however, Hungarian separatists. In their view the empire remained a (rather imperfect) unitary state in some respects (classes I and II in the diagram), and consisted of two ‘statehalves’, even ‘two states’ in other respects (classes II and III in the diagram) which bargained with each other on an equal footing under and with the participation of the common monarch, clearly recognized as a third independent factor. This legal gloss put on the law was, arguably, compatible with Deák’s views of the nature of the Settlement. Neither he nor the two ministers president ever claimed that the Settlement had founded common institutions between two legally sovereign states.

The Ausgleich with the Other Lands

The sanctioning of Law XII of 1867 on 12 June, following the coronation, created a fait accompli for Cisleithania. This had not been intended earlier. The Imperial Patent and Franz Joseph’s Manifesto of 20 September 1865, which had ‘suspended’ the provisions of the February Patent on the composition of the Reichsrat in order to allow negotiations to open with Hungary and Croatia, promised that the Landtage would be consulted over any settlement.91 That never happened. Instead, in the autumn of 1866, it was planned that the ‘narrower’ Reichsrat would be consulted. Deák and his circle likewise envisaged that before the Settlement plan went through parliament, its terms would be put to the Reichsrat. The Imperial Patent of 2 January 1867 dissolved the Landtage, ordered new elections to be held and envisaged an ‘extraordinary’ Reichsrat, elected by the Landtage, to discuss the settlement with Hungary.92 This ‘federalist’ plan, which enjoyed Slav backing, went with Belcredi, for the German Liberals opposed it. They wanted the ordinary Reichsrat to discuss the business of the impending settlement.

napló, I, pp. 184–5). However a year later he objected to the use of the term ‘birodalam’ except as ‘the empire of the dynasty’ (30 January 1867, Greguss, p. 47). 90 Andrássy in his memorandum to the monarch, recommended the changing of the offfĳicial style, introduced on 14 November 1868 (see footnote 8) by arguing that the proposed new title expressed ‘the state interrelatedness of the two halves of the empire’ (állami összetartozandóság), B. Lederer, (ed.), Gróf Andrássy Gyula beszédei (The speeches of Count Gyula Andrássy) 1891, I, p. 388; összetartozandóság is the Hungarian equivalent of the German Zusammengehörigkeit. 91 Bernatzik, Die österreichischen… pp. 317–18; cf. Redlich, II, pp. 433–4. 92 Bernatzik, pp. 367–70; H. Brettner-Messler, VI/2, pp. 369–73. the dualist character of the 1867 settlement 265 Conflicts in 1911–1912 1903–1906 to ország ‘pragmatic’ matters. contract out? Not in the Did Law XII 1867 allow (derived from the Pragmatic Sanction) ‘pragmatic’ matters The contractual basis ) ) reservata ( iura maiesticata Reserved Nature of monarchic right ( Quota Deputations of fĳinance ministries Reichsrat) common minister two separate common ministry Delegations (parliament, common ministry ad hoc ) seen as and internal organisation of the army common matters common expenses afffairs közös ügyek the apportionment of conduct of foreign Common matters ( tasks of the government Competence I leadership, command II budget for the Fig. 2 The three classes of the common matters between Hungary and empire based on Law XII 1867 Class 266 chapter seven Conflicts in to ország Did Law XII 1867 allow contract out? The contractual basis ) ) communicata parliament ( and ‘parity’ principle (with the other lands) iura maiesticata monarchic right ( Shared with Deputations ministries Reichsrat ministries Reichsrat Competence Nature of common ministry Hungarian ministry Delegations parliament 1889–1890 two separate parliament, two separate parliament, ad hoc ) seen as (created under separate law) közös ügyek ( tasks of the government Honvédség system of defence common ministry Fig. 2 (Cont.) Class Common matters the dualist character of the 1867 settlement 267 - after 1879 and de Classes I, II and III exception of the state debt) Yes (with the (not derived from the Pragmatic Sanction) ‘dualistic’ matters whether they were in or outside Classes II and III of the common matters. Deputations ministries Reichsrat parliament, ad hoc common ministry 1867–1877 communicate were also considerably wider than the common matters. King and parliament together competent to legislate on all were wider than Class I of the common matters. The Court, Church appointments, some educational funds, conferment nobil commercial alliance customs and currency iura communicata iura reservata ity and titles were, among others, reserved rights of the monarch without being common matters. • The subjects that were regarded as • Policies were sometimes harmonised between the two governments through parallel legislation on subjects (e.g. railways) outsi of the common matters. III state debt two separate • The list of common matters given here is not exhaustive. • The 268 chapter seven

But Andrássy, and Beust, who had taken over the premiership from Belcredi, agreed in February that the (ordinary) Reichsrat would take cog- nizance only of the fĳinished, product, i.e. the concluded Settlement, without the chance of altering it.93 The two new heads of government, both practical men, were able to understand, if anyone could, that unless the constitutional package just assembled against all odds were left intact, it would probably come apart—as had so many other plans before. The monarch would have to start all over again and without them. To succeed, the Settlement had to be imposed on the German Liberals—and on all other groups which had even less of an institutional lever. The Czech politicians and anti Viennese Provincialists had lost their last chance with the fall of Belcredi. The Croatian claims were bypassed and the Sabor sent no representatives to the coronation. The nationalities of Hungary and Transylvania were not even considered. After the appointment of the Andrássy Cabinet, the Hungarian attitude to the settlement scenario began to change: the Report became an orszá- gos határozat in March and, in substance, it could no longer be tampered with. Prior ‘constitutional consent’ to it by the Reichsrat was no longer considered essential. Instead, the Report was introduced in parliament as a government bill unaltered in substance, although the text was revamped in the places where this was unavoidable.94 Signifĳicantly, the supplementary paragraph (Section 69) was added at this stage, restricting the role envisaged for the Reichsrat (and, perhaps, creating the conflict with a passage in Paragraph 18, left in the text unchanged). The Hungarian parliament could no longer ‘amend’ the bill although it still had the right to throw it out altogether. The Reichsrat, likewise, was given a chance only to accept it or reject it. On 20 May, Franz Joseph, in his Speech from the Throne, informed the Reichsrat that Vereinbarung had been reached with Hungary to which, he hoped, the Reichsrat would give its consent (Zustimmung nicht versagen)95 Soon after his request and before the Reichsrat had acted, the Settlement corpus was sanctioned by the monarch. All along, the Ausgleich between Hungary and the rest of the empire had depended on a prior settlement between the monarch and the ország. After 12 June the Settlement even formally pre-empted most of what the Reichsrat could do. Far from carrying out a clever Hungarian manoeuvre,

93 Memoirs of Count von Beust, London, 1887, II, pp. 7–9; Wertheimer, I, p. 285; Somogyi, op. cit., pp. 177 fff, 202 f. 94 Zolger, pp. 347–54, 277. 95 Ibid., p. 35; Redlich, II, pp. 632–23. the dualist character of the 1867 settlement 269 the Andrássy Cabinet was thrust forward by the consequences of successful egyezkedés and by the facts it had created96 The quaint norms of diaetalis transaction, the procedural expectations engendered by the Hungarian conditions of structural dualism entailed what in Cisleithania was bemoaned as the Zwangslage: the constitutional order of the other lands had to be adjusted to the viszonos kapcsolatok of the king and his ország rather than the other way around.97 But refraining from amending the Settlement did not involve its wholesale adoption or parallel legislation by the Reichsrat to match the enacting clauses of the Hungarian law in every particular or the acceptance in toto of its declaratory parts. A monarchic union can well exist with a minimum of cooperation between the constituent parts—a point to which I shall presently return. The Reichsrat was represented by a Deputation at the Hungarian coronation. Politicians in Cisleithania were particularly concerned about state fĳinance for the monarch, now crowned king of Hungary, had sanctioned a law that absolved Hungary from the legal obligation of sharing responsibility for the state debt.98 However, in sharp contrast to its reluctance to discuss this subject back in 1848, the Hungarian parliament quickly before the summer recess sent a Deputation to negotiate the state debt and the quota once the other aide had recognized parity and the Delegations in principle.99 This declaration was made in the Gesetz of 16 July 1867 which authorized the Reichsrat to appoint a Deputation of 15 for Verhandlung with the Hungarian parliament.100 The Hungarian Deputation met on 4 August in Buda, and decided to move to Vienna on 6 August where the chairman contacted his opposite number. This was the fĳirst diaetalis contact between Hungary and the other lands of the empire in many years. The two ministers of fĳinance held parallel negotiations and attended ‘the sittings of the Deputations. Agreements (megállapodás) were reached ‘on the most important points’ between the two Deputations and these were

96 Lónyai reliably noted in his diary that as late as the middle of April, Deák was insisting that the Hungarian government should not introduce the bill before the Reichsrat had accepted the Settlement and that Andrássy and Eötvös had persuaded him that all antec- oronationalis bills should be prepared for parliament, Kónyi, V, pp. 77–79. 97 That Hungary should not be governed ad normam aliarum provinciarum was an often-enough bypassed principle of the old Hungarian constitution; from 1867, the other Lands were to follow the ‘pattern’ that suited Hungary. 98 Zolger, pp. 36–7; Redlich, II, pp. 640–2. 99 Képv. irom., II, pp. 277–8. 100 Bernatzik, p. 371. 270 chapter seven minuted at a ‘joint session’, held on 25 September.101 Meanwhile the two governments reached agreement on the Customs and Commercial Alliance and on indirect taxation. Soon these were all tabled in the House as government bills and went through parliament in early December on the condition that they would come into efffect only after the stipulations made in the Settlement Law were all fulfĳilled.102 The king, sending back the second batch of these sanctioned implementing instruments for prom ulgation on 27 December, informed parliament that he had also ‘approved and sanctioned’ hasontartalmú bills (bills similar in content) passed by the Reichsrat on the management of the common matters, on the quota, on the handling of the state debts and the Customs and Commercial Alliance, and that ‘in accordance with these and also with Law XII of Hungary he had already taken measures to form the common ministry’.103 Parliament and the Hungarian government took the view that the enactments of 21 December 1867 which adjusted the representation to the Reichsrat and included the Delegations-Gesetz, the separation of the common ministry from the government of Cisleithania and the sanctioned agreements covering the economic subjects did, in fact, satisfy what Section 69 of the Settlement Law stipulated. ‘Their substance’ had been consented to by the Other Lands and, therefore, the common management of the common matters could come into efffect in every respect. There was no concern in Pest over the Dezember-Verfassung postulating

101 Also attended by the two ministers president and ministers of fĳinance. A közös érdekű viszonyokról szólló…országos határozat alapján kiküldött országos küldöttség 1867. évi augusztus és szeptember hóban tartott üléseinek jegyzőkönyve (Minutes of the August and September 1867 sittings of the Országos Deputations on the relations of common interest, hereafter: A közös érdekű), 1867, pp. 1, 3, 35–40. At its fĳirst sitting on 4 August the Hungarian Deputation accepted Csengery’s proposals that the two Deputations should deliberate separately, that they should have, if desired by either side, joint magánértekezés (private discussions) and that all agreements should be minuted separately at joint sessions held under joint chairmanship. The Reichsrat Deputation accepted this procedure, Csengery Antal hátrahagyott iratai (The papers of Antal Csengery) ed. L. Csengery, 1928 (hereafter: Csengery iratai) p.98; Kónyi, V, pp. 146–7 (excerpts from Lónyay’s diary). Csengery, according to Lónyay, claimed to follow the precedents of diaetalis tractatus between the Hungarian and the Croatian deputations (held in 1866, cf. Csengery iratai, p. 181); Lónyay’s Diary, Box I, 4 Aug.1867, Kónyi-Lónyay papers II, Library of the School of Slavonic and East European Studies, University of London. 102 They eventually became Laws XIV–XVIII of 1867. The rapporteur of the Quota Bill, Csengery (prompted by the Opposition, notably Ghyczy) proposed by reference to §27 of 1867 (concerning the creation of a common ministry) that, as a condition, this provision should be added as Section 5 of the Quota Hill, Képv. napló, V, pp. 309, 314; Ghyczy, pp. 256 fff. and 319–20,Képv. irom., III, p. 55. 103 Képv. irom., III, pp. 99–100. the dualist character of the 1867 settlement 271

‘common matters betrefffend die allen Ländern der österreichischen Monarchie’, nor over the numerous diffferences between its provisions and those of Law XII of 1867.104 The dispositions of the Hungarian Settlement and the Reichsrat laws enabled the two sides to jointly manage the common subjects on the basis of formal parity, and this was enough for Hungary. On 27 December, the very day the royal rescript was signed, the government tabled a motion in the House to fĳix the composition of the Hungarian Delegation.105 On the following day, the Minister President requested the House to elect the Delegation as ‘all the conditions had been fulfĳilled for the law to come into efffect’.106 The House complied, so did the Upper House (electing a third of the 60-member Delegation), and thereby the Settlement as a whole, the Ausgleich in the wide sense, came into force. The acceptance of the Settlement by the Reichsrat and the dispatching of the Delegations by their parent bodies clinched the agreement, seen by many at the time as a ‘fundamental contract’, between the dynasty and Hungary as well as the Other Lands. But the new legal order which the agreement generated had yet to be implemented, that is, imposed on other interests: in Cisleithania on the military, and in the Hungarian crown Lands on Croatia. By the end of 1868 this was essentially completed although the Militärgrenze in the south was fĳinally absorbed into the new system only some twenty years later. The new fundamental laws did not create an integrated constitutional order for the Monarchy as a whole, and the Hungarian side would never have tolerated any attempt to do so. The beginnings of the ‘deaf and dumb parliament’ as the Delegations were dubbed,107 was a case in point. They were convoked by the monarch for 19 January 1868 in Vienna. While the Reichsrat’s Delegation and the common ministers did their best to widen the Delegations’ competence and attenuate the separation between the two committees, the main concern of the Hungarian Delegation which met on the 20th was to keep the new institution on as short a string as possible. Also, the Hungarian committee’s much-respected rapporteur, Deák’s close friend, Csengery, exploited the rules of committee procedure to maximize Hungarian separation.108 In his vigilance, apparently, he took

104 Most have been cross-referred by Bernatzik, and the passages all set out side by side by Zolger, p. 307 fff. 105 Képv. irom., III, p. 87. 106 Ibid., p. 88; cf. Képv. jegyzőkönyv, III, pp. 147–8 and Képv. napló, VI, pp. 281 (Tisza), 282–3 (the minister president). 107 Taubetummeninstitut, Wertheimer, I, p. 417. 108 Csengery iratai, pp. 251–54, 257–60, 265 (!) 267–68, 280–81, 284–86, 288–89 (!) 272 chapter seven

Andrássy and other Cabinet ministers to task for their failure to understand the spirit of the Settlement and for allowing loose, unitarist interpretations to creep in.109 As rapporteur of the Quota Deputation, Csengery had in fact already set the tone in September by insisting on a strictly statutory interpretation of Hungary’s obligations towards its Austrian partner.110 Discrepancies in the szerkezet (legal formulae) of the Reichsrat law and Law XII did not concern Csengery at all. Again, the agreed common budget could be ‘law’ for the Other Lands and a ‘resolution’ (határo- zat) for Hungary; the essential principle was that they were to be sent separately for the monarch’s approval.111 The working of the joint Deputations and Delegations reveals that the Austrian and the Hungarian interpretations of the constitutional connection between the Lands difffered from the start and this caused friction already in 1868. But the gaps were bearable. The Cisleithanian politicians did not insist, in offfĳicial statements dealing with Hungary, that an ‘Austrian’ empire existed in law, and the Hungarian constitutional position was not yet incompatible with the view that all the Lands, including Hungary, formed one ‘empire’ or ‘state’ in some respects. Deák, the Andrássy government and the overwhelming majority in the two Houses of parliament agreed that it did, both before and after the empire became ‘hyphenated’ in November 1868.112 The disagreements between Hungarian and Cisleithanian politicians over the interpretation of the Ausgleich laws should be seen in their historical perspective. There had always existed discrepancies between the dynasty’s and the ország’s views of their respective rights and obligations. In fact the discrepancies and contradictory claims had for centuries been much greater between the two sides before the conversion of rights than they became after. Far from creating gaps, the constitutional reform

109 Ibid., pp. 252–4, 258–60, 284, 288–9. 110 A Közös érdekű, pp. 1, 5, 15–17 and 25 (!); Csengery iratai, pp. 19–20, 95 fff, and esp. 156–62. 111 Ibid., pp. 288–89. ‘The Grivičić afffair’ also sheds light on Csengery’s attitudes. On 11 March 1868, General Grivičić criticised the division of army rights in the Hungarian Delegation, and by implication, Law XII of 1867 and the dualist system. The Hungarian Delegation suspended its sittings until the ‘Common Minister for War’—a new designation—disassociated himself from the General’s speech in a written statement. Csengery was not concerned that the statement given in the Hungarian Delegation was diffferent from the German text, ibid., p. 277, cf. A közös ügyek tárgyalására … 1868 január 19-re Bécsbe összehívott bizottság naplója (Journals of the Committee convoked in Vienna on 19 January 1868…concerning the common matters) 1868, pp. 155–59. 112 Cf. footnotes 8 and 90. the dualist character of the 1867 settlement 273 introduced in 1867 was the single major attempt in the history of the monarchic union to bridge them. For two decades after the Settlement, the discrepancies between the views on the constitution held by the monarch, the Reichsrat and the Hungarian parliament were, arguably, less serious than those that had existed for centuries between the dynasty, its ‘Austrian’ advisors and the Hungarian diet. The ambiguities in the 1867 Ausgleich laws were structural rather than intentional. As long as the political will existed to interpret the two laws as sufffĳiciently close in substance to enable the parties to cooperate, diffferences in legal formulae and apparent contradictions in the text did not seem to matter much. The Settlement’s principle of parity between the ‘two parties’ did not create any problem what ever as long as the lawful ország rights of Hungary were not claimed to be the rights of a legally fully sovereign state. After the political will to cooperate with the Other Lands weakened in Hungary (the aspiration of attaining all the attributes of the modern state became irresistible), the textual diffferences between the two laws exacerbated the conflict without, however, creating it. Hungary’s rights under Law XII of 1867 were reinterpreted in Budapest as much on the points where the text matched that of the Delegations-Gesetz as where it did not. A multitude of examples could be adduced to demonstrate that the ‘contradictions’ between the Austrian and the Hungarian laws of 1867 appeared or became unbearable only from the 1880s onwards—pari passu the erosion of the structurally dualistic constitutional assumptions in Hungarian politics. The history of the army question in the Dualist era shows clearly that it is not the letter of the law but its interpretation—as an expression of political will- that counts. There was some disafffection with the 1867 Settlement in Hungary already in 1867, and undoubtedly the provisions concerning the common imperial army were felt to be the least desirable part of it from the start. But the economic Ausgleich and the consequences of Bosnia’s occupation were in the foreground of constitutional politics in the 1870s. The smouldering discontent against the common army stationed in the country erupted only in the 1880s. From then onwards, the army question dominated Hungarian politics for over two decades – even throughout the 1890s when attempts to distract public interest from it failed one after another. After the turn of the century, the army issue came back with a vengeance, and in 1905 the Hungarian parliament plunged the whole Monarchy into a protracted constitutional crisis over the question of the monarch’s right to control the army. The issue was joined on the interpretation of the Ausgleich laws. Section 5 of the Delegations-Gesetz 274 chapter seven assigned disposition over the army exclusively (ausschliesslich) to the monarch, while §11 of the Hungarian law ‘recognized’ the same monarchic rights as ‘constitutional’. The gap between the two texts had created no problem whatsoever as long as the Hungarian clause had retained its original structurally dualistic sense: monarchic reservata by virtue of the (customary) constitution. After the law sufffered reinterpretation, ‘constitutional’ came to mean ‘subject to parliamentary influence’. From that point onwards, the Austrian and the Hungarian laws flatly contradicted each other. The attack on the Settlement was parliamentary and it became serious after decades of political stability. It is notable that the change of attitudes was very gradual: at fĳirst, it was formal and theoretical; it came to involve substantive issues later. Hungarian nationalism was working away from the empire by moving ‘upwards’ on the diagram presented, challenging the arrangements made in 1867 fĳirst in class III, then moving to class II, and fĳinally even in class I of the common matters (see last column in Fig. 2). The ‘Austro-Hungarian’ conflict reached its peak when it came directly to involve the monarch and parliament rather than just the governments of Hungary and Cisleithania. After the turn of the century, the crisis began in earnest: parliament attempted to bring under its control much of what Deák’s Settlement had left unconverted in the autocratic sphere (class I). It is not clear to what extent the nature of Hungarian politics changed between the 1867 Settlement and the First World War: whether or not structural dualism was gradually overcome in the Dualist era. For a long time after 1867, the ősi rather than the new elements continued to provide the efffĳicient part of the Hungarian constitution: i.e. what had been transmitted from the estate system rather than the constitutional forms borrowed from the West during the nineteenth century. The political pendulum swung towards the ‘political nation’, and then back to the crown, the balance between them now disturbed, now restored. Hungary, because of the imperial link, appears to be an extreme case of institutional bipolarity. Reading through the Hungarian parliamentary papers from 1867 to the First World War, the evidence is overwhelming that the endemic conflict was working itself out relentlessly. Political claims in parliament were made in terms of the new, but the institutions worked to n large extent according to the conventions of the old constitution. This was particularly so as regards the közjogi kérdés (the issue of public law) and it was that issue that dominated Hungarian politics. If the efffectiveness of the constitution’s old elements is not quite recognized today that the dualist character of the 1867 settlement 275 is probably because of the juristic vocabulary inherited from the late nineteenth century: words and concepts such as state and sovereignty; which largely blotted out the earlier vocabulary of Hungarian politics (ország and tractatus).

The Monarch and the Union of the Lands

The formal ‘constitutional connections’ between the two parts of the Monarchy did not, in themselves, provide unity and political cohesion after 1867 for the empire as a whole. Cohesion greatly depended on informal relationships between institutions insofar as they were not governed by constitutional provisions. As in other monarchic unions between Lands, the monarch served as the keystone of the political structure. The sovereign’s control over the army—operating largely outside the constitutional-legal sphere—and his undiminished authority over the imperial (common) ministry—though nominally within the constitutional sphere—normally enabled Franz Joseph to retain a free hand in whatever directly afffected the Monarchy as a great power: foreign policy, defence, and imperial fĳinance. In the highest sphere of state policy Franz Joseph remained an autocrat even after 1867. He took decisions after taking advice from the Ministerrat für gemeinsame Angelegenheiten, sometimes referred to as the Crown Council, an advisory rather than an executive body with uncertain membership and without formal constitutional status.113 Moreover, the authority of the crown was efffective even outside the highest, imperial level—a fact which needs brief elucidation. The monarch’s will was an independent source of the legal order. Parts of the Cisleithanian constitution were issued by the sovereign in the form of octroi, and imperial proclamations afffecting Hungary were sometimes legalized by parliament only retroactively. In Cisleithania unilateral enactments by the sovereign (diplomas, patents and, after 1867, imperial

113 The Ministerial Council for the Common Matters was successor to the Imperial Ministerial Council. It conducted its business without formal regulations of any kind and its powers remained undefĳined until 1918. Apart from the three common ministers other civil and military offfĳice holders attended its meetings by invitation—although the two ministers president did so regularly. During the First World War Count István Tisza tried to turn this advisory council into the Monarchy’s highest executive body—apparently without much success. M. Komjáthy, ed., Protokolle des Gemeinsamen Ministerrates der Österreichisch-Ungarischen Monarchie, 1914–1918, 1966, see the editor e introduction, esp. pp. 24 fff., 30 fff., 46, 60–1, 72, 77 fff., 84, 89. 276 chapter seven ordinances issued under ‘the emergency paragraph’, provisional in character) were treated by the courts as statute law. On the other hand, fĳive instruments were enacted in 1867 as ‘fundamental laws’ which could be suspended or revised only by special process through the Reichsrat. The rights of the citizens were enshrined in one of the Staatsgrundgesetze.114 No such set of recognized rights protected the subject in Hungary, either in the form of a fundamental law—which, in the technical sense, the constitution did not know of—or in the form of ordinary laws. The citizen’s possibilities of obtaining legal redress against violations of the law by state offfĳicials remained scant. On the other hand, the monarch, crowned in 1867, took the Oath to uphold ‘the rights, privileges, liberties, patents, laws, and good and approved ancient customs of inhabitants of all ranks, religious and secular’ as well as to maintain intact ‘the rights of Hungary and its associated lands, its constitution, lawful independence and territorial integrity’. The king duly issued the (updated) inaugural Diploma.115 In contrast, the fundamental law of 1867 on the exercise of governmental and executive power stipulating that the emperor on his accession to the throne had to take the Oath (in the presence of the Reichsrat) to maintain the fundamental as well as the ordinary laws remained a dead letter in Cisleithania.116 The Oath and the Diploma—a solemn contract between the sovereign on the one hand and ‘the peers and representatives of the ország on the other—secured legitimacy of rule and provided a constitutional guarantee that had no counterpart in the Other Lands. The contract imposed limits on the monarch’s actions. However, the contract also legitimated the immense power over Hungarian interna inherent in the royal offfĳice. No one ever suggested that the monarch should be only a fĳigurehead. The structural division was, in fact, always heavily tilted towards the king. He was, by virtue of the coronation, the recipient of the executive power117 which he had to exercise in accordance with the laws and through the responsible Hungarian ministry and, in that sense, the executive power became in principle a ‘shared’ prerogative. But the monarch’s rights to conduct foreign policy, to represent Hungary abroad, to lead and command the army, his Church prerogatives, his rights to grant hereditary

114 Bernatzik, pp. 390 fff., 399–400, 422 fff. 115 Law II of 1867. 116 Section 8, Bernatzik, p. 436. It was not envisaged that Franz Joseph should take the Oath and his successor, in 1916, evaded the obligation. 117 Csengery iratai, p. 94. the dualist character of the 1867 settlement 277 and personal privileges were not regarded by all sides as part of the executive power. And even within the executive, the king’s right to accept or reject the recommendations of his ministers remained intact. For thirty years after 1867, the Hungarian Ministerial Council worked without any proper terms of reference. On the other hand, a long and detailed list was drawn up already in March 1867 of the subjects in which ministerial recommendations (whether discussed in the Cabinet or not) had to acquire the approval of the hard-working monarch before the minister (either with or without parliament) was allowed to pursue the matter further.118 The king presided over the Council whenever he felt necessary. Indeed, what was most impressive about the monarchy of Franz Joseph was the degree of political control he was able to maintain over the Cabinet and the individual ministers. By and large he selected, appointed and dismissed his governments (in both halves of his empire) as a personal decision. Parliamentary support was usually secured (and elections held) after governments had been appointed rather than before. The government’s political responsibility to the legislature in Cisleithania was nomi- nal at most times, although the fate of a government was sometimes sealed in the Reichsrat. In Hungary, the government’s political responsibility to parliament was stout and vigorous. But in the political sense, no parliamentary government developed in the eastern half of the Monarchy either. That government should ‘derive’ from a parliamentary majority Deák and his supporters had considered to be a sine qua non of the reestablishment of constitutional life; but they did not expect that parliament would be given ultimate political control. Political responsibility was strictly dualistic: the government was expected to maintain the confĳidence of both monarch and parliament so that, as a modern Palatine, it could successfully mediate between the two sides. Deák and the ‘67er’ majorities after 1867 believed in a balanced constitution rather than in a parliamentary system of government. It has been said that there is a balance in every constitution, but there is no balanced constitution as a stable form of government. For about ten years after 1867, parliament could assert itself against the government.

118 The 24 paragraphs of the list included all appointments of higher grade, draft bills for legislation, fĳinancial transactions, state property, the draft statutes of new associations (of any kind?) and even their amendments. E. Iványi, Magyar minisztertanácsi jegyzőkönyvek as elsővilágháború korából 1919–1918 (Minutes of the Hungarian Council of Ministers during the First World War), 1960, pp. 21 fff, 29–30, 531–32. 278 chapter seven

Then Kálmán Tisza, Minister President from 1875, built up ‘the system’: an administrative machinery with wide discretionary powers that churned out a sufffĳicient number of deputies, ‘the mamelukes’, to make the government’s position unassailable against an adverse vote in the House. The constitutional balance shifted from the elected representatives to the crown and its government. But the balance was only tilted, not destroyed. The narrow franchise protected the preponderance of Hungarian gentry and intelligentsia in the House from any influx of the lower classes and the nationalities. Until 1912, when the next shift occurred in favour of the government, the gentry-dominated House could restrain the executive on major issues, and, through vigorous obstruction, could even destroy the government. All in all, government had to be responsive to parliament; but politically it was primarily responsible to the monarch in any period before 1918. An added factor was that the judiciary in Hungary had limited scope and its independence from the executive was rather precarious. In legislation, however, the structurally dualistic constitution ensured power sharing. Deák, his followers, the Opposition, as well as the jurists insisted, by putting a gloss on Law XII of 1790, that parliament and the crown were (they always had been!) ‘equal’ partners in the making of laws. Legislation was közös (joint) in the sense that it required the ‘con- cordant’ expression of will of ‘two factors’.119 Indeed, parliament’s ability to scrutinize, revise and even reject bills even where it hurt vital interests of the crown was impressive. For ten years (between 1902 and 1912) the Hungarian legislature was able to obstruct a major programme of army expansion—a unique record in the history of parliaments in central and eastern Europe—even though obstruction in the House involved the denial rather than the assertion of the majority principle. But parliament did not become the dominant factor in law making. The king was said to be the ‘head’ of legislation120 and was occasionally (in the 1870s) even described as ‘the dominant factor’121 His rights were formidable by any standards. In addition to convoking, proroguing and dissolving parliament, in which he was rather loosely constrained by statutes, he had, as each of the two Houses of parliament did, the right to initiate laws. Private members’ bills never got very far in the House, where the government had full control over the legislative programme (although not over parliamentary

119 E. Récsi, Magyarország közjoga a mint 1848-ig s 1848-ban fennállott (The public law of Hungary up to and in 1848), 1861, pp. 220 n.6, 230 and 439; Csengery iratai, p. 94. 120 Récsi, op. cit., p. 230. 121 I. Korbuly, Magyarország közjoga, (The Public Law of Hungary), 1874, I, pp. 450–51. the dualist character of the 1867 settlement 279 time). Before a bill was presented by a minister to parliament, it had to acquire the so-called preliminary sanction, előzetes szentesítés, of the monarch.122 And if that was not enough, the king still had the full powers of sanctioning, or withholding his approval from, bills after they had gone through the parliamentary process. This latter power amounted to something wider than delaying or even absolute veto power, though there was hardly any need actually to use it; it worked as a deterrent against unwanted amendments of government bills. The efffective authority of the monarch in both halves of the empire was enhanced by the intense loyalty almost invariably displayed towards the sovereign by the vast majority of his subjects. Kaisertreu and királyhűség were, in the nineteenth century, powerful sentiments. The cultural-linguistic diversity of the empire, and the vitality of the structurally dualistic attitudes above all in Hungarian politics, tended to reinforce these sentiments. Evidence abounds of the daunting efffect of the monarch’s physical presence on politicians, and even more, on ordinary people. The magic of offfĳice (which Franz Joseph did his best to maintain by cultivating court etiquette with obsessive scrupulousness), in addition to the remarkably efffective institutional potestas, ensured that, for half a century, a more than sufffĳicient degree of cooperation was forthcoming from the constituent parts of the union even in times of crisis. Owing to the defects of its formal constitutional structure, the Habsburg Monarchy looked fragile after 1867. And it looked more so as time went on. Allegedly, even to Franz Joseph, his Monarchy appeared shortly before his death to be an ‘anomaly’ in the modern world123 In the 1860s however, ‘an era of federative experiments’124 in many countries ranging from Scandinavia to Central Europe and the Balkans, the 1867 Settlement, as a monarchic union of Lands, was not yet out of place. Not a single one of these experiments proved durable: the stronger appeal of the nation state destroyed them all. A peculiar weakness of the monarchic union created by the 1867 Settlement was the imbalance on which this union of Lands rested: a single Land—the ország of Hungary—although economically weak, had, because of its political tradition, considerably more bargaining power than had any of the other Lands. Notwithstanding this imbalance,

122 Based on the old benigna annuentia; see Iványi, op. cit., (Section 12 of the list from 1867 and Section 13 of the revised 1897 list) pp. 532 and 535. 123 C.J. Burckhardt, Reden und Aufzeichungen, 1952, p. 109. 124 R.C. Binkley, Realism and Nationatism, 1852–1871, (Harper), 1963, p. 181 fff. 280 chapter seven

however, the Settlement was the culmination of a long historical process towards a union of Lands under the Habsburg dynasty.125 The structural dualism of the ancient Hungarian constitution was a precursor of the dualism of the 1867 Settlement. Within the loose terms of the agreements—seen as a fundamental or ‘solemn’ contract by many in 1867— the monarch, Hungary and the Other Lands could bargain with each other: every quid had its pro quo. Through junctim, linkage, changes were—and had to be—introduced by consent. As far as these ‘three powers’ moved, they did so—to borrow a phrase from Montesquieu—‘in con- cert’.126 He, of course, was describing cooperation between three functionally diffferentiated yet interdependent agencies of state power rather than tractatus between parties that constituted a monarchic union. The diffference is important: when the functioning of a state is left to negotiating parties that are under no institutional constraint to resolve their conflicts, these parties can easily become immovable segments of state power that obstruct all change. Unresolved conflicts petrify institutions. Thus it was that tractatus politics in the Habsburg Monarchy, their loose terms and unpredictable institutional arrangements, could generate power shifts between the crown and its bargaining partners, as well as, paradoxically, the immobilisme manifested in the quasi legal character of politics with which my essay began.

(1984)

125 C. A. Macartney summed up the subject in the last lines of his essay on the Settlement: ‘…The Dualist System was simply an adaptation to the new conditions of constitutional institutions of a very old structure’. C. A. Macartney, ‘The Compromise of 1867’, Studies in Diplomatic History, ed. R. Hatton and M.S. Anderson, 1970, p. 300. Older works also emphasised the ‘historical background’ of the dualist system but they did so primarily in terms of ‘Austria’ and ‘Hungary’ e.g. Redlich, I/1, pp. 82–83; Otto Brunner’s works Land und Herrschaft (1st ed. 1939) and his two essays already referred to in note 41 broke new ground. 126 Montesquieu, The Spirit of the Laws, Book XI, ch. 6. CHAPTER EIGHT

THE AUTOCRATIC PRINCIPLE OF THE LAW AND CIVIL RIGHTS IN NINETEENTH-CENTURY HUNGARY1

The Rights of the Individual

One of the fundamentals of liberal philosophy ever since its inception in the seventeenth century has been the belief that the function of the State is not the promotion of virtuous life but the protection of the rights of the individual. Liberals broke away from the Aristotelian tradition which took it for granted that the State existed in order to enable people to live ‘the good life’. In contrast, liberals were inspired by the idea that the freedom of the individual was the supreme moral good. And it followed that the proper function of the State was the safeguarding of each individual’s right to possess as much freedom as feasible in society. But how are individual rights to be secured? If the laws of the State by and large restrict (rather than enlarge) individual freedom, the silence of the law (the absence of legal obstacles to the satisfaction of individual wants) may perhaps go a long way in securing individual liberty.2 Or, alternatively, should the laws themselves defĳine (and if so, in what form) the rights which the individuals were to be endowed with? The response of the liberals to these classical questions, about the right relationship between the law and the citizen, varied. The answers, to a large extent, depended on a presumption which underpinned the diffferent legal systems in the two parts of Europe.3 A convenient way to examine this question is to contrast the presumption of the law as regards the citizen’s rights in Western Europe with the presumption of the law on the eastern side of the Rhine. In the law of evidence the rebuttable presumption of law (presumptio juris) is either on the side of the citizen (and the group of citizens) or on

1 Based on a chapter of my Verfassungsentwicklung in Ungarn 1848–1918. 2 As argued by many early liberals, including Thomas Hobbes. 3 The philosophical problem itself was classical although historians have rather neglected to draw proper attention to the signifĳicance of the diffferent presumptio juris in Western Europe and the rest of the Continent. 282 chapter eight that of the state authority. In Western Europe, where the enforcement of civil rights was concerned, the presumption was on the side of the citizen. The onus rested on the state authorities to demonstrate that the offfĳicial’s act against which the citizen sought legal redress for undue interference was in fact authorised by parliament-made law. The germs of this principle went far back to the philosophies of the natural law school. Hobbes’ sovereign, the recipient of the transferred natural rights of the individuals, has no rights except those that have been transferred to it; Locke’s individuals, by putting themselves under government, have given up only some specifĳic rights. The eighteenth-century French philosophes followed Locke. Montesquieu argued that the subject was free when he was not ‘compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits’.4 For Montesquieu it was axiomatic that where the law was silent the citizen should be free (and whenever in fact he was not, his freedom was violated). The principle went into the 1789 Declaration of the Rights of Man and Citizens: ‘All that is not forbidden by law cannot be prevented, and no one can be forced to do what the law does not prescribe.’5 This was the presumption of the law on which justice was administered in the liberal states of Western Europe in the nineteenth-century. And correspondingly, the function of the liberal legislator was to confer rights on the individual to increase his liberty. Liberals considered it axiomatic that legislation, by and large, restricted personal freedom. And where the law was silent (as Hobbes had already argued) the citizen was said to be free.

The Autocratic Principle of the Law

In contrast to some west European legal systems, in the Habsburg, Monarchy, in imperial Germany and elsewhere, the presumption of the law was on the side of the state authorities: in case of conflict, the burden of proof did not rest with the offfĳicial but with the plaintifff. Citizens seeking legal redress against an-alleged wrong done by the state offfĳicial had to produce evidence that the law expressly protected their interests on the point at issue. This diffference in the presumption of the law between the two parts of Europe had momentous consequences. While

4 The Spirit of the Laws, Bk. XI, ch. 4. 5 E. K. Branstedand and K. J. Melhuish, eds., Western Liberalism (London, 1978), p. 228. the autocratic principle of the law and civil rights 283 in Western Europe where the law was silent the citizen was said to be free, in the legal systems beyond the Rhine, the opposite prevailed: where the law was silent (the individual and the social group were not expressly protected by laws) it was the state authorities who were, so to say, free.6 We have now reached the heart of the matter. The state authorities in central and eastern Europe could lawfully issue decrees and act at their own discretion in matters which interfered with the individual and the group. Enacted statute law restricted the area in which the authorities could lawfully act. And beyond the restrictions which statute law imposed on the offfĳicial lay the sphere in which the authorities were either free from any legal restrictions in their dealings with the citizen (freie Vertwaltung) or the government (even a single minister) reduced the discretionary powers of the subordinate offfĳicial by regulations issued through a decree (or order), an action to which it had a prima facie right.7 The right of the government to issue decrees on its own authority (motu et potestate proprio), which may be termed the autocratic principle of the law, and was recognised by jurists before 1848, was an accepted part of the Hungarian legal system.8 It was implicit in the laconic provision of Art. CII of 1723 that the decisions of the Council of Lieutenancy must not contravene the country’s statutory laws.9 In Art. XII of 1790 De legislativae et executivae protestatis exercitio the monarch promised to issue edicts only

6 The widely-known bon mot, which originated among German law student in the nineteenth century, had more than an element of truth in it: ‘In England ist alles erlaubt, was nicht verboten ist. In Deutschland is alle verboten, was nicht erlaubt ist.’ The intellectual setting of the authoritarian state in Germany and the corresponding social attitudes associated with the ostelbische Mentalität were discussed by Hans-Ulrich Wehler, Das Deutsche Kaiserreich 1871–1918 (Gottingen, 1973), esp. pp. 105–107 and 133–34. 7 Georg Jellinek, Gesetz und Verordnung (Freiburg, 1887), pp. 155–256 Jellinek discussed the right in the context of the distinction between formal and substantive law, Pt. II, Section ii, ch. 1, pp. 226fff. 8 Anton Virozsil, like others, argued that the praesumptio juris (die rechtlich Vermuthung) was, in doubtful cases, on the side of the king and that the monarch’s government possessed the right to issue decrees as long as it did not conflict with statute law, Das Staats-Recht des Königreichs Ungarn (Pest 1865), II, Sections 36 (esp. p. 5) and 46; Antal Cziráky, less clear on the question of praesumptio juris, stoutly endorsed the monarch’s right to issue decrees, Juris publici regni Hungariae (Buda, 1851), Tom II, Sections 323 and 442. Pál Szlemenics listed some ordinances enacted under ‘special royal powers’ which, ‘without ever being accepted by the diet have become a part of judicial practice and have been continuously in force’, Törvényeink története (Buda, 1800), p. 136. On the attitudes of jurists after 1867 see below note 16. 9 contra positivas patriae leges nihil determinet 284 chapter eight when the law was otherwise unafffected10 and to exercise the executive power in sensu legum. Law III of 1848 enacted that the executive power was to be exercised by the monarch (in his absence, the Palatine) through an ‘independent Hungarian ministry’, ‘in the sense of the law and the constitution’.11 The wording allowed the survival of the autocratic principle. Section 19 Law IV of 1869 ordained that judges had to proceed by applying statute law, rendelet (government decree), ‘based on statute law’12 and lawful custom. The debate in the House of Representatives (hereafter the House) over the paragraph was instructive: it clearly revealed that the phrase based on statute law merely required that the decree should not contravene statute law.13 The judge did not ask if a measure introduced by the government or the local authorities was authorised by the legislature. The courts invariably applied government rendelet whenever in their view it did not conflict with consuetudo14 or the enactments of decreta, later statute law. Even after the judge became independent, as he had not been before the 1860s,15 the judiciary could not have protected the subject from the consequences of government action unauthorised by parliament.16 Under this legal system, based on the autocratic principle, individual rights were in essence ‘concessions’ from the state made either through independent executive action or by legislation. Thus the old question of sed quis custodiet ipsos custodes acquired special signifĳicance. The German and Austrian liberals’ remedy against the consequences of the autocratic principle was the Rechtsstaat, the State based on what was termed the rule of law. Liberals demanded formal declarations and

10 in rebus legi conformibus. István Ereky pointed out that the jurists before 1848 had all been in agreement that in case of doubt as to whether a particular subject was reservata or communicata the praesumptio juris was on the side of the monarch. Jogtörténelmi és közi- gazgatási jogi tanulmányok (hereafter Jogtört. tanulm.) (Eperjes, 1917), II, p. 22. 11 §§ 2 and 3. 12 In Hungarian: a törvény alapján keletkezett. 13 The Central Committee of the House replaced the ministerial draft with the requirement that the rendelet was ‘issued on the basis of specifĳic authorisation by the legislature’. The House, however, restored the ministerial draft, Képviselőházi irományok, 1, pp. 59, 121 and Napló, 9 July 1869,II, pp. 486–91. 14 Consuetudo, as Béni Grosschmid argued, in addition to statute law, set limits to the enforceability of a royal ordinance but where those limits lay was left entirely unclear, Magánjogi előadások (Budapest, 1905), pp. 125–29. 15 Before 1848 the monarch influenced the courts through benigna principis rescripta. Ibid., pp. 127, 191. 16 Győző Concha considered even the government decree which had been challenged by an adverse resolution of parliament to be valid law for the law courts, Hatvan év tudományos mozgalmai között (Budapest, 1935), I, pp. 405 and 416f, and see Kálmán Molnár, Kormányrendeletek (Eger, 1911), esp. 3443. the autocratic principle of the law and civil rights 285 entrenched civil rights as constitutional guarantees. They also insisted on detailed and comprehensive statutory provisions that covered every conceivable situation in order to establish freedom for the individual. Because of the autocratic presumption of the law, the liberal in Central Europe had good reason to want the formal statutory right even in order to scratch his own back. Local self-government, participation in the administration of the commune, was another guarantee, and liberals were especially eager to institute administrative courts – efffective instruments of redress for the individual and the group against the violation of their statutory rights by state offfĳicials, as well as against state interference where the legal protection of individual interests appeared otherwise weak or non- existent. These were the liberal remedies in Central Europe whose realisation in the late nineteenth century mitigated the dangers to liberal freedom inherent in the autocratic presumption of the law. Liberal jurists knew too well that parliament, the countersignature and ministerial responsibility, legal or political, were in themselves hopelessly inefffective safeguards. Hungarian constitutionalists applied some of the liberal remedies to counterbalance the efffects of the autocratic principle. They introduced although in a roundabout way, equality before the law. Also, they passed a few short laws which protected the right to private property, freedom of movement, work, contract,17 and other personal freedoms. Their record on civil rights, however, turned out to be patchy. Above all, they failed to create a statutory framework and provide sufffĳicient institutional guarantees to protect civil rights in order to mitigate the efffects both of the autocratic presumption of the law and of the dominating influence of the social elite over the rest of the population.

Property Rights and Legal Equality

The April Laws, inspired by the principles of legal equality and private property, abolished serfdom; they left in limbo, however, whether the emancipated jobbágy became the owner of his sessio. Also, the law did not annul the nobility as a legal status and it alluded to legal equality incidentally in the Law on the Union with Transylvania rather than enacting the

17 Although, arguably, an agricultural labourer or an industrial worker did not have freedom of contract in a liberal sense. 286 chapter eight principle.18 Legal equality was established in civil law by imperial decree which introduced the Austrian Civil Code in the Hungarian crown lands.19 But the legal status of the Code, as indeed all the other enactments issued by octroi, had become uncertain after the collapse of the Bach regime. The 1861 Lord Chief Justice Conference established some Provisional Rules, which did not, however, shed much light on the principle of legal equality.20 There was no legislation on legal equality in 1867 or after: the political class fĳirmly believed that it had already been established in 1848. Because (rather embarrassingly) this was not so, judicial practice had faced an acute problem after 17 February, the day the April Laws were restored, Count Gyula Andrássy was appointed and his government was confronted by the legacy of nineteen years of rule by octroi. The judge had to choose between applying Austrian law, based on legal equality, whose validity was now uncertain, and applying the old Hungarian law which had been riddled with inequality. The government, like an untrained fĳire brigade rushing to respond to each problem as it turned up without any strategy, began to supplement the existing regulations by issuing its own ‘provisional’ rendelets. Also, parliament carried into the statute book – albeit haphazardly and fragmentarily – liberal measures where the gaps were glaring. Law XVII of 1867, passed ‘unanimously’,21 declared in two short paragraphs that the Jews ‘in respect of civil and political rights are equal’ to Christians and that ‘all contrary law, custom and rendelet are thereby abolished.’ As regards the former serfs, Law LIV of 1868 Concerning Civil Judicial Procedure established in laconic language the equality before the law as a procedural norm which fell short of enacting the principle: ‘the noble or non-noble character of persons and goods does not in any sense afffect either judicial authority and competence or procedure.’22

18 The diffferences in the legal position of the former serf and the noble, particularly in penal law, remained wide. 19 It came into force on 1 May 1853. 20 In efffect the Provisional Judicial Rules of the Conference legalised a large part of the Austrian Civil Code. See Béni Grosschmid, Magánjog, pp. 861–865; ‘the rescinded imperial ordinances were much more appropriate to the transformed social conditions than the lawful but obsolete maxims of Hungarian law’, observed Kálmán Molnár, Kormányrend., p. 72. 21 The bill was passed by the House egyhangúlag (i.e. nem. con.) O11 20 Dec. 1867 (Képv. jkv., III, no. 1524). 22 Section 15. Cf. Section 2 of Ch. II on Penal Procedure, Provisional Judicial Rules 1861. But in private law, as Boldizsár Horvát pointed out in a closed session of the House on 18 June the autocratic principle of the law and civil rights 287

A piecemeal reform towards legal equality was the abolition by Law LII of 1871 of corporal punishment, penalties which in the past had been meted out only to non-nobles. These and similar reforms reinforced the claim that the social order was based on legal equality. Liberals held that nobility conferred social rank only rather than legal status. Nevertheless, because of the absence of any general enactment on legal equality jurists sometimes questioned whether or not legal status (rendek) had disappeared after 1848.23 But justice was administered by the courts on the assumption that the citizens were legally equal; in fact the judge followed tacitus consensus populi. This was the decisive factor as Hungarian law possessed a customary and historical rather than a statutory and hermeneutical character. It is not surprising that after decades of judicial practise Law V of 1898 On the Commemoration of the Establishment of the 1848 Laws listed among the ‘basic laws’, that had been passed half a century earlier, ‘legal equality’ and ‘political and civil liberty’.24 Statute law followed and read into the April Laws what customary law had established in the intervening period. The personal right to acquire, possess and inherit property without much restriction was established after 1867 with greater clarity than the principle of legal equality, although it took some time to convert the rights for all the diffferent types of landholdings.25 There was no backtracking or ‘feudal reaction’ on property relations in any quarter of the landowning nobility, when, in 1867, government passed into their hands. And,

1861, the Rules did not remove important diffferences in the status of nobles, burghers and former serfs; István Toldy, A magyar politikai szónoklat kézikönyve (Pest, 1866), II, p. 273. 23 Istvan Kiss in his textbook classifĳied the population as ‘nobles’ and ‘non-nobles’, Magyar közjog (Eger, 1880), p. 146. Gyula Schvarcz rejected the classifĳication. ‘Tanulmány a magyar államjogi irodalom újabb termékeiről’, Magyar Igazságügy, 1887, vol. 27, p. 343f. Ernő Nagy argued in all editions of his Közjog that rendek did not exist any more in Hungarian law. Other jurists, including Nagy’s opponent, Győző Concha, took the opposite view; Politika, Budapest, 1895, 1, p. 166 fff; idem,Hatvan év, I, 562, II, p. 281 fff. There were loopholes in the law through which some noble privileges survived, listed by Dezső Márkus, Magyar Közjog (Budapest, 1907), p. 231; also István Egyed, A mi alkotmányunk (Budapest, 1943), pp. 138–39. Legislation, however, began to create new ‘privileges’ by conferring various tax exemptions on state and local offfĳicials, see István Ereky, Jogtört. Tanulm., I, p. 268 fff, esp. 277–78 and 282. 24 Section 1. Ernő Nagy could not be fooled: ‘The principle of legal equality’, he wrote, ‘as a general tenet with legal force is nowhere stated but it follows from the spirit of the 1848 laws’, Közjog, 1907, p. 129. 25 See László Péter, ‘The Aristocracy, the Gentry and Their Parliamentary Tradition in Nineteenth-Century Hungary’, pp. 312–13 and nn 25–28 below. 288 chapter eight although the Lord Chief Justice Conference had accepted much from the conversion of urbarial relations by the imperial patents, nobody after 1860 could be quite certain what would pass as valid Hungarian civil law. Thus, free and unrestricted land property for the former serf had to be clearly established. Law LIII of 1871 unambiguously declared that the former jobbágy sessio in every respect became the property of the new peasant owner.26

Personal Rights

Similarly to legislation on legal equality and property rights which was piecemeal and fragmentary rather than general and comprehensive, liberals showed the same reluctance towards promulgating general principles on the rights of persons. Many of them believed that ‘historical’ constitutions like the Hungarian could well do without fundamental laws or indeed even any general enactment that safeguarded individual rights. Both the constitutional question and attitudes to the country’s multinational character militated against action by Hungarian liberals in this respect. Again and again, one ministerial rendelet applied with competence and liberality by the government. This practise, based on ministerial intervention, did not offfer legal guarantees of individual rights. The prudent liberal conduct of the ministers depended largely on the attitude of politicians who happened to hold offfĳice. The ministers themselves did not recognise this as a problem. Eötvös said in the House in December 1867 that as regards personal freedoms the country had no reason to com- plain: ‘the liberties of the pre-1848 years were replaced by the liberty which is our common property, and in this case the singular is superior to the plural.’27 Eötvös’s claim was not empty political rhetoric; that the population, at least in the larger places, enjoyed a wide measure of personal freedom in the 1860s was largely true. However, such personal freedom as did exist in Hungary after 1867 was not legally secured. §32, Law III of l848, enacted that ‘violations of personal freedom or of the sanctity of property’ incurred the impeachment of ministers. This constitutional safeguard tes- tifĳied to the liberal spirit of the April Laws but its practical usefulness to the citizen was nil.

26 Sections 2 and 5. 27 11 December 1867, Képv. napló, VI, p. 38. the autocratic principle of the law and civil rights 289

Ministers and liberal politicians did not lose sleep over the lack of statutory provisions comparable to the Reichsrat Law on the rights of the citizens enshrined among the Austrian Staatsgrundgesetze.28 They were elaborated by implementing legislation whose provisions were enforced by the courts. In Austria an imperfect but adequate set of rules existed through which the individual, and even groups, could vindicate their legal rights. By contrast, in Hungary only fragments of personal and civil rights were secured by statutory provisions. Sections 19 and 20 of Law IV of 1869 On the Exercise of Judicial Authority offfered the twin guarantees that the judge had to apply statute law, lawful rendelet and customary law and that no-one should be deprived of access to a competent judge. After 1867 the courts became independent29 and they protected personal freedoms, property rights and private contracts, a signifĳicant liberal achievement. However, provisions in substantive law which protected the person from ‘unlawful’ arrest for instance, the home and the privacy of the individual from violations, could be found only in the Penal Code. The passing of the Code, Law V of 1878, the result of careful preparation and a splendid product of liberal legislation,30 was signifĳicant for constitutional developments in two respects. The Code excluded consuetudo and the reasoning by analogy in the administration of justice in the two categories of crimes (bűntettek and vétségek) which it distinguished. Moreover, it established the principle of nullum crimen et nulla poena sine lege (Section 1), which had been an essential part of the liberal programme since the 1840s. The enactment of this principle breached the prevalence of the autocratic principle of the law. Liberals championed the principles of the Rechtsstaat as the obvious remedy to the autocratic principle which they sometimes challenged directly. In the end, albeit reluctantly, they all came to terms with the power of the executive to step in with rendelet wherever statute law did no protect the citizen.31 The obduracy with which the autocratic principle even in penal law survived was demonstrated by Law XL of 1879 On Offfences kihágások( ), an adjunct to the Penal Code. Whereas Law V of

28 Edmund Bernatzik, Die österreichischen Verfassungsgesetze (hereafter Bernatzik) (Wien, 1911), p. 422fff. Both Deák and Andrássy felt aversion to general enactments. 29 The judges were left under the supervision of the Minister of Justice (Section 1 Law VIII of 1871) but they could be removed from their post only by a procedure defĳined by statute law. (Section 15, Law IV of 1869). 30 The drafting of its 486 paragraphs was largely the work of Károly Csemegi. 31 Even Béni Grosschmid, see his Magánjog on the subject of praesumptio juris, pp. 162–73, passim. 290 chapter eight

1878 required statute law to establish a crime in either of the two categories, Law XL of 1879 introduced the offfences as a third category and created a statutory framework within which ministers could establish by rendelet new offfences so far as they were not in conflict with statute law; the same principle also applied to local government.32 Moreover, this summary jurisdiction of sorts was largely administered by ministry and local offfĳicials rather than by the law courts. All in all, Hungarian constitutionalists created a legal order base on the principle of equality before the law. Private property and some of the strictly personal freedoms were protected by statutes which were adequate. These features generated social stability which guaranteed the security of person and property - the fĳirst duty of an government. Consti- tutionalists did at least secure such individual rights as modern private business required. They welcomed capitalism; they were short of the liberal spirit where the protection of individual rights by law was concerned.

Civil Rights

In contrast to many of the strictly personal rights based on statutes, especially in penal law, civil rights had to face the full force of the autocratic presumption embedded in the legal system. The government, which motu et potestate proprio regulated by rendelet, wide swathes of social life, could easily extend its own authority practically to the whole sphere of civil rights. The liberal conversion of the constitution was in itself not a remedy. On the contrary, the autocratic presumption of the law represented a greater danger to civil rights after the establishment of representative government than before it. For under the ancient constitution the vis inertiae, the passive resistance of the autonomous counties, offfered some guarantee against restrictions imposed by government edicts. With the subordination of the counties to the ministry in the 1870s this safeguard became much less efffective. Liberal jurists recognised the need to protect civil rights by law.33 Ernő Nagy, a leading jurist, listed among the constitutional guarantees the freedom of expression and of the press, the rights of

32 Sections 1 and 7, Law XXL of 1879. 33 Law school professors frequently lamented the lack of legislation, e.g. Imre Korbuly, Magyarország közjoga (Budapest, 1874), I, pp. 265–66. the autocratic principle of the law and civil rights 291 assembly and association, the freedom to lodge complaints and the right to petition the authorities.34 The government did not question the principle that the citizen was entitled to civil rights. Ministers, stout defenders of the autocratic principle, claimed, however, that the State possessed the ‘right of supervision’, a claim which lacked a statutory basis. Also, more realistically, they argued that customary law was on their side: the executive power had always possessed the ius edicendi. In 1869 Premier Andrássy carelessly remarked that ‘‘when parliament was not in session only the government possessed the right to interpret the law.’35 In the ensuing sharp exchanges Andrássy had to eat his words. He explained that in order to carry out its duty to maintain law and order, the government had to take measures based on its own rather than on the counties’ interpretation of the law.36 For all that, governments repeatedly promised legislation, especially before 1875; the bills, however, never came. Instead, even where parliament-made law had already been on the statute book, regulation by rendelet crept in. This became the fate of some of the nationality rights enshrined in Law XLIV of 1868. Press freedom was secured by Law XVIII of 1848, a liberal measure which abolished pre-publication censorship and instituted the jury system for press trials. This law was subsequently whittled down by rendelet.37

The Right of Association

Associations had been under government control since the eighteenth century and the system had changed remarkably little over the years. The monarch claimed jus supremae inspectionis over all associations, a claim which the autocratic presumption of the law allowed, as long as the measures introduced did not violate either statute law or established customary privileges. The rendelet issued by the Council of Lieutenancy on 23 June 1795 introduced the licence system: unless an association

34 Ernő Nagy, Közjog, 1891, p. 166 and 1907, p. 201, and cf. pp. 130–61. 35 2 June 1869, Képv. Napló, I, p. 343. 36 On 3 and 11 June, ibid., I, pp. 361–62 and 416–17. 37 In February 1867 parliament authorised the Minister of Justice to create press courts by rendelet. This procedure opened the way to the interference of the Ministry in the work of the courts by further rendelets which lacked parliamentary authorisation, Gábor Máthé, A magyar burzsoá igazságszolgáltatási szervezet kialakulása 1867–1875 (Budapest, 1982), pp. 66–67. Nevertheless, R. W. Seton-Watson’s contention that ‘press freedom is virtually non-existent in Hungary’ was a gross over-statement; Racial Problems in Hungary (London, 1908), p. 313. 292 chapter eight

(or club) was permitted to exist it was pronounced to be secret, and therefore illegal.38 Associations could be lawfully established only after their statutes had been approved by the Council which could at any time demand their revision. The Council requested reports, exercised supervision and could suspend and dissolve associations largely at its discretion. But the enforcement of the Council’s orders was in the hands of the autonomous counties which could ‘lay aside’ their implementation. Clubs, casinos and associations mushroomed in Pest and elsewhere after 1830, many of them being tolerated without approved statutes. Associations formed for purely economic purposes were then, step by step, regulated by enterprise law. Churches attained statutory recognition in a fragmentary fashion39 and some nationality rights were recognised in Law XLIV of 1868.40 None of the other kinds of association were, however, recognised by statute law. The licensing system was untouched by the constitutional changes in 1848, 1860 and 1867. The Interior Ministry, in supervising associations, operated both lawfully and outside enacted law. Soon after the conclusion of the Settlement, the government’s attitude to the freedom of association was tested by the subversive agitation launched against the constitutional order by the Democrats’ Clubs. They were established by radical ‘48er politicians flirting with social discontent among the peasantry. Here and there, county authorities, without waiting for instructions from the ministry, began vigorously suppressing the clubs which nevertheless were spreading among the peasantry of the Plain with Lajos Kossuth’s moral support. Prompted by Pest town, which submitted the draft statutes of the local club for approval, the Council of Ministers decided in late February 1868 to reject the application and dissolve the clubs. Deák, upset, had ministers Wenckheim (Interior) and Horvát (Justice) on the carpet in his lodgings: ‘On exactly what legal basis of authority do you propose to ban the clubs?’ Deák seemed to reject the autocratic principle. ‘If we had laws on everything,’ responded Horvát defensively, ‘we would have an easy job to govern. The trouble is, we lack the laws in every subject: unfertige Zustände, as the Germans say, yet we

38 Imre Korbuly, Közjog (1874), I, p. 266. 39 See László Péter, ‘Church-State Relations and Civil Society in Hungary’, Hungarian Studies (hereafter: Church-State Relations) pp. 416–23 below. 40 Section 26 of Law XLIV On the Equality of Nationality Rights allowed the formation of associations under the ‘lawful supervision of the State’. They were to operate ‘under their statutes approved by the government’. the autocratic principle of the law and civil rights 293 are responsible for law and order.’41 Deák calmed down and eventually took over the drafting of the rendelet which was to be sent to Pest town by the Minister of the Interior. The 1867 Settlement, like the Pragmatic Sanction, reasoned the rendelet, was a ‘fundamental law’ against which subversive agitation, planned by the clubs, ‘should not be tolerated.’ Because their activity ‘could lead to revolutionary excesses’ the clubs ‘could not be licensed.’42 The ministry later demanded revisions in the draft statutes; when these were refused, Pest town sent out the police to disperse a club meeting and enforced the ban. This gave rise to an interpellation in parliament. The ‘Forty-eighter’ deputy, Sándor Csiky, could not fĳind a single paragraph in the statute book which restricted the right of association. ‘Would the minister kindly inform the House what statute law gave the legal basis of his rendelet?’43 So Csiky did not accept the autocratic principle of law. The reply given by minister Wenckheim was based on the traditional view of the constitution: the right of association, was based on customary rather than on statute law. Also, it was the monarch’s right and the government’s duty to prohibit associations which undermined the security of the State, based on lawful continuous custom, which originated in the ‘supreme monarchic right of supervision.’ The minister then pledged the government’s support for legislation: a bill would shortly be brought to the House.44 The pledge was renewed when the monarch declared in the Throne Speech in April 1869: The regulation of the law of association and of assembly is an urgent task so that these basic constitutional rights are protected and limited and the boundaries of the supervisory rights and duties of the government are precisely defĳined by law.45 Franz Joseph, no opponent of the Rechtsstaat idea, in November 1867 had already promulgated the Vereinsrecht for Austria and the right was

41 Horvát’s recollection in Manó Kónyi, Deák Ferencz beszédei (Budapest, 1898) (hereafter: DFB), V, pp. 347–50. 42 In Hungarian, nem engedélyezhető, 3 March 1808, Ibid., pp. 350–51. 43 On 27 April 1868, Képv. napló, VII, pp. 133–34; and see Csiky’s motion on the subject, 4 June 1868, (Képv. irom, IV, pp. 368–69) which questioned the monarch and his government’s customary right to supervise associations on the grounds that supervision had not been in continuous practice. The House resolved not to discuss the motion on 30 June 1868, Képv. napló, VIII, pp. 235–38. 44 On 4 May, ibid., VII, pp. 151–54. The attempt to establish Democrats’ Clubs later led to a local riot in Félegyháza, see DFB, V, p. 390f. 45 Képv. irom, I, p. 2. 294 chapter eight declared to be a fundamental law in the December Constitution.46 But the pledge given by the Hungarian government to bring in legislation proved weaker than its fear of a parliamentary fĳiasco. The Deák party did not put pressure on the government for statutory regulation, nor was the Opposition likely to let through a bill which endowed the executive with supervisory powers on which the government had to insist. Governments do not easily bring themselves even at the best of times to defĳine limits to powers to which they have grown accustomed. Whenever a chance is given, they widen whatever powers they already possess.

Regulation of Associations by the Ministry of the Interior

The government tacitly shelved the idea of legislation and embarked on the regulation of associations motu et potestate proprio. The rendelets issued by the Minister of the Interior alluded to free association as a ‘right’ although no longer as a customary right based on continuous practice, as one minister, Wenckheim, had afffĳirmed in 1868. Nor did the rendelets elaborate or defĳine the right. Regulation meant restrictions imposed on associations which the minister could change at his discretion, and against which there was no legal redress. He also settled particular cases. The rendelet On the Supervision of Associations, issued on 29 April 1873 by Count Gyula Szapáry, Minister of the Interior, was a modest start.47 Szapáry, the strong man in the two weak governments that had followed Lónyay’s, rather apologetically explained that he ‘did not intend to restrict the right of free association’. But as long as parliament did not legislate, the minister regarded regulation as his ‘lawful task.’ Szapáry reminded the local authorities of their obligation to use their own authority and call to account the leaders of those associations which had either functioned without licence and approved statutes or extended their activities beyond the limits which their statutes permitted. The system of ministerial control was codifĳied by Kálmán Tisza, Liberal party boss and minister from March 1875, who combined the Interior portfolio with the premiership for over eleven years. Tisza’s rendelet, a ‘circular’ issued on 2 May 1875,48 allowed associations, pending the

46 Bernatzik, pp. 381–87 and 425 (Section 12). 47 Sándor Dárday, Közigazgatási törvénytár ( Budapest, 1893), III, pp. 125–26. 48 1bid., pp. 123–25. the autocratic principle of the law and civil rights 295 ministry’s decision on their submitted draft statutes, to begin functioning provisionally after 40 days. This was a new rule and a concession to the fact that a great many fĳinancial, charitable, recreational, cultural and political associations and also casinos were applying for licences and even those which were ‘not objectionable’49 to the authorities sometimes had to wait for their licence far too long. But the import of the circular was its fĳirm mandatory language in which it ordered the local authorities to seek out and disband associations which, transgressing their stated objectives, were ‘engaged in unlawful and anti-state activities’. A nine-point regulation which accompanied the circular distinguished between ‘political, humanitarian, economic, cultural and agricultural associations’. Associ- ations which mixed these objectives were not to be licensed. Most of the other restrictions concerned the associations of workers and of the nationalities. As a blanket rule, political and workers’ associations were not permitted to have branches; the minister was to decide whether or not other kinds of associations were to be allowed to have any. Associations were not permitted to style themselves as ‘national’. The nationalities’ associations were restricted to non-political, ‘literary and cultural’, purposes. The Serbian leader, Miletić, questioned Tisza over the circular in the House on 22 May 1875, challenging the autocratic presumption on which it had been based.50 In a constitutional state, he argued, ‘everything which is not prohibited should be permissible’ and restrictions could be imposed only by statute law. Yet Tisza’s circular severely limited the right of association, particularly concerning the nationalities’. Was the minister prepared to bring in legislation? Replying in the same sitting, Tisza had a fĳield-day.51 The ‘‘right of supervision’, he began cautiously, was a duty of the state recognised all over the world. The circular’s provisions were not aimed against citizens of any nationality. He used (in fact, misused) Deák’s distinction between ‘the political nation’ and the ‘nationalities’, in order to reject the plea for allowing associations to style themselves as ‘national.’ With the House fĳirmly on his side, Tisza then went into a rather disingenuous defence of the autocratic principle: of course he would prefer to use the positive enactments of a statute law rather than acting without

49 In Hungarian: kifogás alá nern eső. 50 Képv. napló (1875) XVII, pp. 270–71. 51 Ibid., XVII, pp. 273–75. 296 chapter eight them ‘because governing under the necessity of duty towards the country, on the basis of lawful principles, without any positive basis in statute law, forms the most unenviable part of the government’s responsibility.’ Come what may, he would never be able to bring in a bill on associations which stood a chance of securing Miletić’s approval. ‘With law or without law’, went on Tisza, with increasing confĳidence and with the rapturous approval of the House, his actions were going to be just and even-handed towards every single nationality; he would never try to appease those, however, who, under the cover of nationality ‘smuggled in ideas which were in conflict with the existence of the Hungarian state’. In his rejoinder,52 Miletić, isolated, once more questioned the ‘constitutional theory’ which allowed the minister to substitute rendelet for enacted law. The encounter, as on earlier occasions, focused on the treatment of a particular political interest rather than on the right of association. There was not much interest in the House in this subject or indeed in other civil rights; only the opposition parties, having the wrong end of the stick, were concerned.53 The 1884 programme of the ‘48 Independence Party pledged to ‘secure the freedom of association’ without explicitly demanding statute law.54 But the 1878 programme of the United Opposition and the 1892 Manifesto of Apponyi’s National Party emphatically promised statutory regulation.55 Apponyi’s pledge probably meant more than the token demand of a politician far away from offfĳice at the time. But the Opposition’s pledges did not in the least hamper the ministry from extending imperceptibly its powers over associations and their members. An important new restriction was brought in by the Interior rendelet of 2 February 189856 which taking powers under Law XL of 1879, established as a personal offfence activity in an association without valid licence or under suspension. The penal sanction was detention up to 15 days and a fĳine of up to 100 forints.

52 Pp. 285–86. 53 The disbanding of the Matica Slovenská, a cultural association, by the Ministry of the Interior in November 1875 had the support of the overwhelming majority of the House. See Gábor G. Kemény, Iratok a nemzetiségi kérdés történetéhez Magyarországon a dualizmus korában (Budapest, 1952), pp. 505–521; László Szarka, ‘A szlovák Matica’, História, 1993/2, p. 20–21. 54 Gyula Mérei, Magyar politikai pártprogramok 1867–1914 (Budapest, 1934), p. 306. 55 Ibid., pp. 253 and 265. 56 Dezső Márkus, Közjog, p. 212. the autocratic principle of the law and civil rights 297

It all went the government’s way. In the l890s the movements of agricultural labourers, urban working classes and the nationalities picked up and regulations by the executive came thick and fast. Parliament meekly connived at the growing discretionary power of the ministers while the judiciary was largely bypassed even after the administrative court had been established in 1896.57 Regulation multiplied and became more restrictive in 1914 and after on the basis of Law LXIII of 1912 On Emergency Measures during War.58 The Károlyi government ‘abolished’ all restrictions on the associations in December 191859 and then went on disbanding associations it did not like. The Béla Kun regime, under which the rule of law collapsed, conferred the right on ‘workers and peasants.’60 On 30 September 1919 the Friedrich government restored by rendelet all the regulations valid on 30 October 1918. New ministerial enactments followed which abandoned gingerly only some of the strict regulations introduced during the war. The legal rules concerning association and assembly, became an impenetrable forest in which fĳinding the pathways required the careful consultation of a compendious handbook.61 The lack of statutory regulation and proper court proceedings did not prevent the growth of associations. Their number, although much smaller than the fĳigures for Austria, went up steadily.62 There were in Hungary over 500 licensed associations in 1848, over 600 in 1867, 2,720 in 1878 and over 14,000 in 1932. The capital led the way.63 Most of the associations were recreational, cultural and social rather than political. Although the right of association lacked legal guarantees, the government through

57 Law XXVI of 1896 had a narrow remit which did not include any civil rights. 58 Esp. Section 9. 59 People’s Law III. 60 Andor Csizmadia et al, Magyar állam- és jogtörténet (Budapest, 1972), p. 604. 61 János Páskándy, Egyesületi (egyesülési) és gyülekezési jogszabályok kézikönyve (Budapest, 1931), p. 387. 62 József Kovalcsik, A kultúra csarnokai (Budapest, 1986), 11, pp. 37–118 (an account of associations up to 1918); Gábor Pajkossy’s and other articles in História, 1993/2. 63 Károly Buziássy, Budapest közművelődési viszonyai (Budapest, 1938), pp. 68– 83. The total number of licensed associations was 3,995 in 1878. This fĳigure includes theipartársu- latok (trade associations), allowed to be formed, under the supervision of the authorities, by the Industry Law of VIII of 1872, ch. IV, esp. Section 81, see Sándor Jobb and Júlia Kiss, Egyesületek Magyarországon 1982 (Budapest, 1984), p. 6 and Gábor Palkossy’s article in História, 1993/2, p. 9. 298 chapter eight regulation and supervision, restricted and on a concessionary basis recognised the existence of the associations.64

Ministerial Regulation of Public Assembly

Unlike free association, the right of assembly was nowhere afffĳirmed in statute law and the authorities claimed the right of supervisor of all public meetings. Unlike associations, the control over public assemblies, exercised by the local police and the army, was strict and instantaneous; new regulations were sometimes issued as punitive measures after incidents. At least on one occasion, however, parliament was able to force the ministry to withdraw a measure, a very rare event. For the right of assembly impinged on the constitutional balance between parliament and government in a sense in which the right of association did not. In 1848 constitutional government got offf to a bad start. Because of an anti-Jewish riot in Pest on 19 April 1848 the army had to be called out. On the following day a rendelet65 On Public Assembly, signed by seven (all the available) members of the Batthyány cabinet, introduced the subject of the right of assembly in Hungary: ‘Because of base provoca- tion public order and the safety of person and property were scandal- ously disturbed yesterday some people abuse the right of assembly.’ The rendelet warned against ‘aimless gathering’ which, when order was threatened, would be dispersed by force. Also, it laid down a few ‘provisional’ rules: unless the town authorities were notifĳied 24 hours before a public meeting it was to be dispersed by the police and the organisers punished. Eight days later the Minister of the Interior warned the town of Arad – again because of a local incident – that only meetings with lawful purposes should be permitted.66 These were the antecedents which shaped ministerial practice after 1867 and which lent authority to the view that a public meeting could be lawfully held only if the organisers notifĳied and received permission from the authorities. In 1868 an Interior rendelet67 imposed on all local authorities the duty to ‘follow with

64 This was so even as regards the large number of the nationalities’ associations; see Zoltán Szász’s article in História, 1993/2, pp. 19–20. 65 Dezső Márkus, Közjog, pp. 214–15. The incident on 19 April is described by Ervin Szabó, Társadalmi és pártharcok, p. 166. 66 In Hungarian: engedélyezett népgyűlés, Dezső Márkus, Közjog, pp. 215–16. 67 Ibid., p. 216. the autocratic principle of the law and civil rights 299 attention the proceedings of meetings’ by ensuring there was an offfĳicial in attendance who had to disband the assembly, as a last resort by force, ‘once it has deteriorated into subversive agitation (izgatás) against the law, the constitution or public order.’ The authorities were instructed to impose punishments and notify these to the minister. But the Andrássy ministry planned to introduce legislation. In Austria the Versammlungsrecht was put on the statute book in 1867.68 The provisions were less restrictive than the Hungarian 1868 rendelet: its language was more precise, it introduced a few procedural rules and, above all, it empowered the courts to impose punishments (Section 19). The Throne Speech of 1869, as has been quoted, declared legislation on the right of assembly to be ‘an urgent task’ in Hungary.69 Eötvös advised Andrássy to push through a bill in late 1869.70 Like the failure to legislate on the associations, the bill on the right of assembly was never brought to parliament and the Interior went on imposing new restrictions. The use of red flags at meetings and processions was banned in 1874 and strike meetings in November 1894.71 In April 1893, during the critical weeks of Church-State legislation, all political meetings which combined with religious services were banned.72 In 1898 it became an offfence kihágás( ) to hold a meeting without permission which incurred similar punishments introduced in the same year against unlicensed associations. Nevertheless, statutory regulation was not entirely missing. The right of assembly was regulated by statute for Croatia in 1875.73 The Sabor, in fact, enacted the 21-paragraph Reichsrat law of 1867 and, as in Transleithania, the courts in Croatia were authorised to punish infringe- ments of the statute. Also, Law XXXIII of 1874 on parliamentary elections regulated election meetings in Hungary. Although most of the provisions were restrictive and punitive, they included the duty to notify rather than to receive ‘permission’. But this section of the 1874 Law was rescinded by Section 2, XXXVII of 1880. Statutory provisions sometimes bolstered

68 Bernatzik, pp. 387– 390. On the Hungarian ministerial draft see Mihály T. Révész, ‘Adalékok a gyülekezési jog magyarországi fejlődéséhez’, Levéltári Szemle, 1977, I, pp. 187–93. 69 See note 45 above. 70 Letter on 2 November 1869 in József Eötvös, Levelek, Ambrus Oltványi (ed.) (Budapest, 1976), p. 613. 71 Dezső Márkus, Közjog, p. 217. 72 Károly Kmety, A Magyar közigazgatási jog kézikönyve (Budapest, 1897), p. 301. 73 14 January 1875, Dezső Márkus, Közjog, pp. 217–19. 300 chapter eight the discretionary powers of the executive branch. Law XL of 1879 On Offfences established punishments for holding, without permission, public lectures, spectacles, balls, torchlight processions and the like ‘so far as these require permission by ministerial rendelet or bylaw’ (para 76). The discretionary character of ‘permission’ was implied in Law XXI of 1881 On the Budapest Police Authority. The statute thus left it to the authorities to decide when permission was required. Acts of parliament also provided statutory backing to the discretionary powers of the administrative authorities, generated by practice, to punish violation of ministerial rendelet and local bylaws. Law XL of 1879 enacted that an offfence could be established by statute law, by ministerial rendelet and by municipal bylaw (Section 1). The system, codifĳied by Law XXXIV of 1897 On Criminal Procedure (Section 19), applied, among other civil rights, to assemblies and associations. Members of parliament could question the minister, criticise and remonstrate, but rarely clip his wings. Ignácz Helfy, the ‘Forty-eighter’ deputy in January 1878 asked Tisza why he had already banned a workers’ meeting, advertised in the press well in advance, without knowing anything about its purpose. The long exchange between the minister and the deputy failed to establish even the basic facts of the case and the House’s majority showed no interest in the subject.74 Helfy and others were more successful in mobilising the House to check the growth of the Interior’s discretionary powers over the right of assembly a few weeks later. The press reported that Tisza had sent out a confĳidential circular to the főispáns. On 18 March Helfy asked75 if the reports of a new regulation on assemblies were true. It was alleged that meetings would in future have to be notifĳied, together with a list of the speakers, three days rather than 24 hours beforehand and that permission would be granted only if six to ten ‘distinguished citizens’76 (it was left to the police to decide who would qualify) stood surety for the meeting, fĳinancially and otherwise. Helfy then argued that the imposition of the new measures was unlawful and he expressly rejected the autocratic principle: where was the law which provided the legal basis of the rendelet? As it happened, a few days after Helfy’s question the rendelet (sent to the főispáns on 21 January) passed into the public domain. Helfy’s summary of

74 Helfy’s interpellation, 23 January 1878, Képv. Napló, XIV, p. 234, Tisza’s answer and the rejoinders, 26 January, ibid., pp. 242–46. 75 18 March 1878, Képv. Napló, XVI, pp. 159–60. 76 In Hungarian: előkelő polgárok. the autocratic principle of the law and civil rights 301 the measures turned out to be correct and the House was now concerned. On 26 March Ferenc Chorin (United Opposition) raised the issue:77 Tisza’s rendelet severely limited the established right even of members of parliament to give an account of themselves to their electorate Chorin feared that the enforcement of the new conditions on assembly would undermine the rights of the House. And like Helfy, and many others before him, Chorin rejected the autocratic principle: ‘The rendelet issued by the Premier is not the kind which puts statute law into efffect; it supplants statue law […] It is indisputable that only legislation is competent to make provisions for the right of assembly’. Is Tisza prepared to withdraw the rendelet? Tisza, not in good form when he replied to Helfy and Chorin on 29 March,78 rattled on without the encouraging noises which ‘the general’ habitually received from his supporters when he was on his feet. But he made a case for applying to public assemblies the autocratic principle, based on customary law (i.e. continuous practice). Our laws (i.e. statute laws), he said, were silent on the right of assembly and, therefore, strictly speaking, laws could not have been violated by his ordinance: ‘The basis of government measures towards public meetings since 1867 has been the rendelet issued in April 1848 by the then Minister of the Interior in a particular case.’ Tisza then dexterously slipped in the claim that governments had the right to ‘modify and change’ their own rendelet for which they were accountable ‘on grounds of expediency, not those of legality’ and that, at any rate, the new measures were temporary. In their rejoinders both Helfy and Chorin reiterated their opposition to the autocratic principle: what was not forbidden by statute law had to be an individual right. Tisza nearly lost the vote.79 Shortly after this encounter the new restrictions were quietly, though not uniformly, withdrawn. The government however still ducked legislation.

Conclusions

In reviewing the position of some civil rights in nineteenth century Hungary we have found that the autocratic principle of law which

77 26 March 1878, ibid., pp. 184–186. 78 Tisza’s reply and the rejoinders, ibid, pp. 217–20. 79 There had to be a recount which showed that 139 deputies had accepted and 122 rejected his reply, ibid., p. 230. 302 chapter eight undoubtedly obstructed the freedom of the citizen, was a most active ingredient of the legal-political order. An overall assessment of the Hungarian liberal record looks diffferent, however, when we examine the arrangements for some other civil rights where the autocratic principle worked in conjunction with statute law an especially with customary law, which also remained a powerful legal source in the country. For instance, in Church-State relations the twin agents of the customary law of society and the miniszteri rendelet (the customary law of the State) created in the late nineteenth century unique system based on the three classes of ‘received’, ‘recognised’ and ‘tolerated’ religions.80 Although this system had little in common with the liberal conception of civil society in which citizens had basic rights, the overwhelming majority of people belonged to ‘received’ churches which enjoyed security. Turning back to the rights of association and assembly, governments never denied that the citizens were entitled to these rights. They were reluctant, however, to afffĳirm and defĳine them in any form and still less to introduce legal safeguards to protect their use. Their answer to the criti- cisms that the civil rights’ statutory protection in Hungary was inadequate, that it lagged far behind Austria’s and that they showed insufffĳicient interest in introducing legislation, was that historical constitutions like the British and the Hungarian (unlike the Austrian and others based on charter) did not develop through promulgated general enactments. Historical constitutions, went the argument, evolved piecemeal through precedent and minor practical measures which could safeguard liberty as efffectively, if not better, as declaratory pronouncements of abstract principles. The truth lay somewhat deeper. The point is not that the protection of civil rights was piecemeal but that this sphere of the law was handled by a largely uncontrolled guardian who had insufffĳicient interest in protecting rights. The Minister of the Interior (also other ministers) ‘in his own right’, defĳined the limits within which the rights were allowed to be practiced. The minister constructed and imposed the rules, which he authoritatively interpreted and changed. He supervised their implementation by the local authorities, established the penalties to be inflicted on transgressors, was himself the last recourse of redress for appeals against punishment and, occasionally, departed from his own rules in particular cases. Regulation by ministerial rendelet did not necessarily mean a reduction of the discretionary power of the

80 See László Péter, ‘Church-State Relations and Civil Society in Hungary: A Historical Perspective’, pp. 416–23 below. the autocratic principle of the law and civil rights 303 offfĳicials. Not surprisingly, contemporary (mostly foreign) observers condemned this system as anti-liberal, which it was. Yet the arrangements were still based to an extent on the rule of law. The power to maintain law and order was institutional rather than personal. The methods of enforcement were orderly and bureaucratic. Although the police authorities, when they met resistance (for instance at a public gathering) could act brutally, there were no systematic brutalities and gross violations of human rights were rare. The brief survey of the rights of association and of assembly also reveals that the acceptance of the autocratic presumption of the law for civil rights did not have much support outside the government party. But liberals in parliament, representing diffferent party interests, hardly ever co- operated. Instead, they carried out, on occasion successfully, sporadic guerrilla actions which trimmed the edges of the discretionary power exercised by ministers, local offfĳicials and the police. There was no sustained efffort by parliament to press for statutory provisions, comparable to Austria’s, in order to safeguard basic rights. At times the government drafted bills81 but never brought them to the House, knowing that the Opposition would fĳight them tooth and nail. Ever suspicious of the government, believed to serve Viennese rather than Hungarian interests, many a politician preferred to leave things as they were. His political instinct told him that it was the lesser evil to have no law at all and allow the government to roam about unhindered than letting through a law which conceded some power to the government although restrained it in other ways. His political instinct did not really serve either him or the country well. The obstacles which prevented the creation of adequate institutions of the Rechtsstaat were partly social. Landowner politicians provided too narrow a social basis for much of the liberal social ideals. Although they desired to establish civil rights, they were too afraid of social movements, the urban and the rural poor and the nationalities. The urban middle and lower classes, which elsewhere supported movements to secure civil rights, were in Hungary politically weak and isolated. The leaders of the nationalities were concerned with (unobtainable) national rights rather than civil rights as such. Outside parliament there never developed any strong movement for civil liberties. Whatever demand may have been made by social groups for their establishment, civil rights, excepting

81 In the late 1860s and also in the 1890s. 304 chapter eight nationality and religious rights, never became a political issue. Indeed, paradoxically, after the turn of the century, when the urban middle classes challenged, at least culturally, the ascendancy of the gentry and the aristocracy, the educated public was even less interested than before to check the growth of a largely untrammelled ministerial authority that had escaped the political control of society’s elected representatives. CHAPTER NINE

THE ARISTOCRACY, THE GENTRY AND THEIR PARLIAMENTARY TRADITION IN NINETEENTH-CENTURY HUNGARY

Introduction

From the Middle Ages until recently the aristocracy and the gentry landowners preserved their ascendancy in Hungarian society. These two groups, the Catholic and Habsburgtreu titled aristocracy, and the partly Protestant well-to-do provincial gentry, the ‘backbone of the nation’, formed the landowning élite. Each group possessed independent social power while, arguably, no other social group did so enduringly on a wide scale. The élite’s power was rooted in the noble ownership of land, based on royal donation, in exemptions, immunities and other privileges; in the maintenance of serfdom, that enabled the élite to be masters over the bulk of the population as a workforce; and in the political institutions at their disposal: the county and the diet. Other élites, vested in privileged districts, like the Saxons and the Szekels in Transylvania, the Jász-Kun Districts in the Plain, and the Serbian community in the south, wielded local power only. For centuries, the Roman Catholic Church was an independent force which exercised influence in the whole Kingdom. But the Church lost its independent political position after 1780.1 The vigorous use of the monarch’s ius patronatus in making church appointments, and particularly the Erastian policies pursued by the government under Joseph II and his successors, made the Church dependent on the crown. Nor could the towns match the power of the landowning noble élite. Urban society was not strong enough to challenge the paramount influence and political domination of landowners. Towns in Hungary appeared late; they were few and small, economically weak and, since they were led by German burghers, socially isolated. Politically they depended on the crown and wielded little influence in the diet. Most were also set apart by their Lutheran confession.

1 The Churches, nevertheless, retained influence in public life. Signifĳicantly, the political élite was educated in Roman Catholic and Protestant grammar schools—a subject which has not been looked at by historians. 306 CHAPTER NINE

Modern Budapest, the country’s capital, essentially the outgrowth of the nineteenth-century empire of Austria-Hungary, was an exception. Its ‘American type’ of rapid growth and splendid dynamism created independent middle classes2 which, after the turn of the century, at least in culture, challenged the dominance of the landowning élite. The business classes, the overwhelming majority being assimilant Germans and Jews, remained, however, even in the twentieth century politically aimless, and possessed an outsider mentality.3 On the collapse of the Habsburg Monarchy in 1918 Hungary’s landowning élite lost its position. This turned out to be temporary: the earlier social balance, largely restored in 1920, survived until the end of the Second World War.4 In contrast with all the other social groups in Hungary, the aristocracy and the landed gentry, the upper crust of the nobility, possessed institutional influence strong enough to bargain with the monarch. They were

2 ‘At times people spoke of the “American” Budapest’, writes John Lukacs about the building boom of the capital (John Lukacs, Budapest 1900, London, 1988, p. 53); on the conflict between the gentry and the largely Jewish upper class of Budapest, see pp. 194 fff. 3 Károly Vörös has carried out basic research into Budapest’s virilists, the 1200 highest taxpayers from whom half of the 400-city assembly was elected (Section 26, Law XXXVI of 1872 on the government of the united capital), Budapest legnagyobb adófĳizetői 1873–1917, Budapest, 1979. Dr Vörös’s study demonstrates, among many other points, that by the end of the century a new wealthy bourgeoisie supplanted the old city patricians and the aristocracy in the leadership of the capital, pp. 165–66. But the landed aristocracy and gentry kept away from the largely Jewish new wealth (id., Budapest története, IV, Budapest, 1978, pp. 426–27). Gabor Vermes describes the business classes in the early twentieth century as a ‘fragmented bourgeoisie’. ‘Their recent gain in self-esteem and material comfort kept them pliable and simultaneously immune to any independent political action’; their attitudes ‘precluded the emergence of a strong, independent bourgeois political force’ (Gabor Vermes, István Tisza, New York, 1985, pp. 46 and 154). That the prominence of the new urban upper classes did not undermine the political leadership of the landowning élite is demonstrated by George Deák’s recent study on the role of the National Association of Hungarian Industrialists, The Economy and Polity in Early Twentieth Century Hungary, New York, 1990: the bourgeoisie flourished ‘under the benevolent rule’ of the Liberals; ‘the new wealth and political power were largely distinct’ but they co-operated; the bankers secured foreign loans for state projects and fĳinanced electoral campaigns. ‘In exchange, the bourgeoisie enjoyed the patronage of the government’ (pp. 108–09), but it did not produce a political movement, nor was it accepted by the nobility (pp. 123–24). The Association was at times an efffective pressure group with regard to the government (see especially pp. 84, 97, 103 and 121), but, signifĳicantly, it failed to secure a proper franchise reform or, indeed, to change the political system (pp. 156–62). 4 In the inter-war years offfĳice and parliament were once more dominated by the ‘historic classes’ rather than by the urban interests. C. A. Macartney found the position of the gentry ‘impregnable’, although it was now a gentry bureaucracy rather than a class of independent landowners (C. A. Macartney, Hungary, London, 1934, pp. 196–98). The politician Imre Kovács recalled that in January 1945 a peasant had taken the news about the formation of a provisional government seriously only on hearing that there was a ‘Count’ (Géza Teleki) among the ministers. aristocracy, gentry and parliamentary tradition 307 partners rather than mere clients of the crown. The crown’s influence was overwhelming. Vested in the Habsburg family since the sixteenth century, the dynasty maintained a military-bureaucratic empire to which Hungary was tied indissolubly. The protection of the empire’s European great power status, the chief interest of the crown, required the maintenance of political stability in the large Hungarian kingdom. Stability there was secured by the crown through the conferring of noble status, land and other privileges, a process which generated, and from time to time replen- ished the aristocracy and the gentry, binding to each other the three principal actors of the Hungarian body-politic. Landownership was closely linked with nobility; they were not, however, coterminous. Most of the landowners were nobles, but the opposite was not true, for the size of the Hungarian nobility was striking. For centuries nearly fĳive per cent of the country’s inhabitants could claim noble status.5 This is an exceedingly high proportion of the population, comparable in Europe only to the nobilities of Poland and Spain.6 Also, the nobility appeared even larger than it was because of great regional diffferences in its distribution in the country.7 The wide social gap between the noble

5 A survey prepared under Joseph II in the 1780s showed 410,000 noble persons out of the total population of 8.3 million. In Hungary 4.8 per cent, in Croatia 4.4 per cent, and in Transylvania 3 per cent of the population had noble status (much depends on defĳinitions), while the burghers (like in Poland) made up less than 2 per cent of the population (in Bohemia they were over 5 per cent already); Kálmán Benda in Magyarország története (hereafter: MT), 5, Budapest, 1980, pp. 435–36. Percentages given by P. G. M. Dickson for the total male population are lower, in the case of Hungary only slightly, id., Finance and Government under Maria Theresia 1740–1780, Oxford, 1987, I, p. 55. Károly Vörös computed the proportions of nobility for Hungary in 1848 as 4.6 per cent. 6 In eighteenth-century France the ratio was 180 commoners to one noble, in Bohemia the ratio was even higher; see István Hajnal, ‘Az osztálytársadalom’ in Sándor Domanovszky (ed.), Magyar művelődéstörténet, Budapest, 1939, v, p. 166. Recent research into the size of the Polish nobility indicates that the ratio held earlier of eight or ten commoners to one noble was far too low. In the Cracow region in the late sixteenth century, for instance, the nobility was around 3 per cent of the population; see Andrzej Wyczanski, ‘How Many Nobles Lived in 16th Century Poland?’, in F. Glatz (ed.), Pach Zigmond Pál emlékkönyv, Budapest, 1989, pp. 93–97 and Emanuel Rostworowski, ‘Hány nemesi állampolgára volt a Rzeczpospolitanak?’, Századok, 1988, 5–6, pp. 867–93. 7 Imre Wellmann’s study showed that most of the nobility in Transdanubia, averaging 5.41 per cent of the population, lived in counties in the late eighteenth century which had not undergone Turkish occupation in the sixteenth century, ‘Der Adel in transdanubis- chen Ungarn 1760–1860’, in Armgard v. Reden-Dohna and Ralph Melville (eds), Der Adel an der Schwelle des bürgerlichen Zeitalters 1780–1860, Stuttgart, 1988, pp. 117–19. Likewise in the counties of eastern Hungary: in Szabolcs 13, in Szatmár 14 and in Borsod 15 per cent of the population was noble (these counties had never been occupied by the Turks); see Éva H. Balázs, MT, 4, 1989, pp. 905–06, and also P. G. M. Dickson, op. cit., I, p. 106. Karoly Vörös points out that in the 1840s half of the whole nobility lived in eleven counties, MT, 308 CHAPTER NINE landlords and the peasants (before 1848, serfs) was compounded by the economic divide within the nobility itself.8 Far from being a homogeneous class, the nobility was fragmented and riddled with conflict.9 Around three hundred families owned titles: the princes, the counts and the barons formed the magnate class, an aristocracy of wealth, with social power as well as legal status. They were over- represented in the high offfĳices of the kingdom and in the Roman Catholic hierarchy before 1848. Magnates were personally invited to the diet of which they formed the Upper House. Under a third of the nobility were possessionatus or bene possessionati: they constituted the provincial gentry who owned their land by virtue of royal donation.10 The counties were

5, p. 486. See also the more recent studies by Gyula Erdmann, József Hudi, Magdolna Láczay, István N. Kiss and others in László A. Varga (ed.), Rendi társadalom, polgári tár- sadalom, Salgótarján, 1987, especially pp. 85, 102, 127 and 270. 8 For a concise analysis of the economic divisions within the nobility, partly based on Ibolya Felhő’s studies, see P. G. M. Dickson, op. cit., pp. 103–13. Apparently there were few aristocrats with very large property in the eighteenth century, and the nineteenth century was not much diffferent. In 1895 estates over 1,400 acres ‘representing 0.2 per cent of the number of holdings, occupied more than 32 per cent of the country’s land’, wrote Iván Berend and György Ránki, Hungary, A Century of Economic Development, New York 1974, pp. 41–42. Scott M. Eddie’s studies show, however, that only a proportion of the holdings belonged to the aristocracy. The typical aristocrat was certainly not the owner of a latifun- dium. ‘The Social Distribution of Landed Wealth in Hungary ca. 1910’, MS, pp. 20–21. I am grateful to the author for this information. Károly Vörös has pointed out that the requirement of the 1885 Law on the Upper House which, apart from the elected and the appointed categories, restricted membership to those Magnates who paid at least 3000 fl. land tax annually, deprived 72–74 per cent of the House’s members of their hereditary rights (nearly 500 out of 700 persons). Yet the 3000 fl. tax was not excessively high: in Budapest alone fĳifty–four commoners paid as much or more; see ‘A főrendiház 1885. évi reformja’, in Laszló A Varga (ed.), op. cit., pp. 401–403. 9 While it is by and large true that most nobles shared some basic privileges, listed by Werbőczy in the early sixteenth century in the titulus nonus of Part One of his Tripartitum, his claim that all nobles of Hungary una et eadem libertate utantur (Tit. 2.) remained an unfulfĳilled political programme. C. A. Macartney’s short piece, ‘Hungary’, in A. Goodwin (ed.), The European Nobility in the Eighteenth Century, London, 1953, pp.118–35, contains much on the divisions within the nobility. On the new aristocracy, formed after 1711, and on conflicts within the nobility, see Károly Vörös, MT, 4, 1989, pp. 680–92 (Hungary), pp. 703–06 (Transylvania), pp. 714–20. Ct István Széchenyi and many others noted the widespread hatred among the nobility felt towards the aristocracy in the Reform age; see Elemér Mályusz, ‘A reformkor nemzedéke’, Századok, Budapest, 1923, pp. 53, 55–60. 10 On the landowning gentry in the late eighteenth century, see Éva H. Balázs, MT, 4, 1989, pp.104–12. Untitled noble families acquired larger property and rose on the social ladder through the holding of offfĳice rather than through economic activity (p. 907). On the organization of the landlord’ s farm, see Imre Wellmann, ibid., pp. 613–27. In István Szabó’s assessment, in the sixteenth century a third of the nobility was landed gentry and in the nineteenth century about one quarter, id., ‘Magyarország nepessege’, in Magyarország tör- téneti demográfĳiája, Budapest, 1963, p. 90 and p. 110 n.163. Recent research, carried out by aristocracy, gentry and parliamentary tradition 309 in the hands of a few local families and the counties’ deputies constituted the sanior pars, the dominant element, of the diet’s Lower House. Well over two-thirds of the nobility were poor: the so-called sandalled nobles,11 who before 1848 had lived on a peasant plot (nobiles unius sessionis), in addition to the landless armalists,12 who were either in the service of wealthy families or moved into the professions. Also, families were ennobled through administrative service without (much) land. But larger numbers of the armalists were illiterate nobles who sometimes lived in abject poverty. Some poor nobles were compelled to pay taxes and, before 1819, only a few participated in county politics (and therefore the diet’s) where the guiding principle was vota ponderantur, non numerantur. After they were allowed in the county halls, poor nobles habitually sold their votes to the highest bidder; hence the rowdiness and violence with which elections were infested. While the nobility was a minority of the population, the landowners with paramount influence in society – the aristocracy and the well-to-do gentry – were but a small minority of that minority.

Social Reform and the Landowning Élite

Social change in the nineteenth century did not undermine the position of the landowners as Hungary’s political élite. In the middle of the century the country’s institutions underwent major reforms: a modern system of private property was introduced, the principle of legal equality gradually undermined hereditary privileges, and the system of estates was transformed to become constitutional and representative government. I shall try in this article to give a brief account of what these changes were, how

Imre Ódor, shows that in Baranya County in 1809 only 16 per cent of the nobility was landed gentry, ‘Az 1809. évi nemesi összeíras forrásérteke’ in László A. Varga (ed.), op. cit., p. 116. Before 1848 the well-to-do gentry within the landed nobility was made up of a few families in all the counties of Hungary and Transylvania; Károly Vörös, MT, 5, 1980, pp. 489–90. 11 The bocskoros or gatyás nemesség (Hajnal, in Domanovszky, op. cit., p. 167); György Szabad contrasts the aristocracy, the smallest and wealthiest in Europe, with the nobility which (Poland apart) was the poorest. ‘A társadalmi átalakulás’, Valóság, 1976, 5, p. 3; Elemér Mályusz, ‘A reformkor nemzedéke’, Századok, 1923, p. 44, estimated that 31,406 noble families (c. 125,000 persons, or one quarter of the whole nobility) lived on a peasant plot before 1848. 12 The armálista or címeres nemes possessed a coat of arms on his patent of nobility. ‘The large proportion of the Armalisten nobles is impressive’, writes P. G. M. Dickson, op. cit., I, p. 106; also, Imre Wellmann, MT, 4, 1989, pp. 613 fff. 310 CHAPTER NINE they afffected the position of the landowning élite and how the élite’s parliamentary tradition brought about shifts in the relative position of the crown, the aristocracy and the landowning gentry. The mid-nineteenth-century reform movement was led by politicians who, imbued with liberal nationalism, represented diffferent sections of the nobility. From the beginning of the 1840s reform-politicians were committed to the principles of West European polgári társaság (civil society) in general, although not necessarily in legal provisions, and in particulars. The cardinal principle of civil society was legal equality. The medieval hierarchy of privileges, which separated the nobles, the clergy, the burghers and the subjected serfs from each other, was to give way to a single legal system for all. Serfdom, corporate privileges and special juris- dictions were to be abolished, equality before the law to be established and out of ‘subjects’ a single Hungarian community of citizens, endowed with representative institutions, was to be created. From 1844 individuals no longer required noble status to become landowners.13 The 1848 revolution, in which the leading force was the bene possessionati, removed several essential props of the system of privileges, without yet creating a new social order. Law XV of 1848 abolished vitality, clan inheritance14 in principle (leaving all implementing legislation to the following parliament) – but not the system of royal land donation. Laws IX and XI rendered void urbarial obligations and the patrimonial authority of the landlord:15 but it was, perhaps inadvertently, left in limbo whether or not the incumbent of the jobbágy sessio or telek (the serf’s plot) became owner of it. Law VIII declared ‘equal and proportionate’ taxation, but the nobility as a legal status was not annulled.16 Nor was the

13 Law IV of 1844 stipulated that ‘non-nobles of any of the lawfully received religions should not be disturbed in their possession of acquired noble property (i.e. land) on the grounds of lacking noble status’. For statute laws I used the ‘Márkus edition’ of the Magyar törvénytár, Budapest, 1897–. 14 ősiség, the rules that governed the inheritance of noble property by members of the clan. 15 The Law emancipated over nine million persons in Hungary and Croatia. Over half of the serfs possessed urbarial land. The urbarial telek varied between 30 and 40 cadaster hold (I hold = 1.43 acres) and 8 and 15 (?) meadow hold. Few serfs possessed a full telek, perhaps a quarter telek was the average. Most of the rest of the serfs had at least a household plot; see János Varga, A jobbágyfelszabaditás kivívása 1848-ban, Budapest, 1971, pp. 167, 339–40. Fear of social unrest was the chief reason for the passing of the reform (pp. 146–56); cf. György Spira, MT, 6, p. 143. 16 It could not have been just oversight on the part of the legislator that paragraph 1 of Law IV on Annual Parliament declared that ‘His Majesty shall convoke the ország Rendeit [the Estates of the Land] … annually’. Law professors carried on scholarly debates, even forty years later, about whether or not rendek existed in Hungary. aristocracy, gentry and parliamentary tradition 311 principle of equality before the law enacted in 1848. Legal equality (jogegyenlőség) was alluded to incidentally in the Law on Union with Transylvania.17 The principle was a source of inspiration and was, in 1848, a social programme rather than established legal fact. The social relations left in disarray after the suppression of the revolutions were sorted out by imperial patents issued in 1852 and later.18 The state paid compensation to the landlord for the loss of urbarial rights.19 The 1811 Austrian Civil Code, which was introduced in the Hungarian Crown Lands on 1 May 1853 by imperial edict, established legal equality in civil law.20 On the day the constitution was restored (17 February 1867), however, the legal status of all enactments by octroi (issued after 2 December 1848) became uncertain.21 There was no legislation on legal equality as such after 1867. Law LIV of 1868, ‘Concerning Civil Judicial Procedure’, established in laconic language a procedural norm which fell short of enacting the principle: ‘the noble or non-noble character of persons and goods does not in any sense afffect either judicial authority and competence or procedure’.22 Nevertheless, ‘legal equality’ acquired a fĳirm

17 Section 5 of Law VII declared that Hungary was prepared to maintain all the laws of Transylvania which ‘do not obstruct complete unity and are benefĳicial to national liberty and legal equality’. The prologue of the 1848 decretum alluded to the ‘unifying’ of the Hungarian people in law as one of the aims of the legislator. Also, the preamble of Law I of Transylvania referred to Hungary, where ‘the legal equality of all the inhabitant has been declared and has been in force’. 18 See Albert Berzeviczy’s summary of the government’s measures as regard property relations, Az absolutismus kora Magyarországon 1849–1865, Budapest, 1922, I, pp. 334–36, 339. The state imposed a more restricted interpretation than the 1848 Law as to the amount of land in the peasants’ possession from which urbarial obligations were lifted; see György Szabad, MT, 6, 1979, pp. 530–32. After the implementation of the reform in Hungary 45.7 per cent of the arable land was owned by the peasantry which included emancipated serfs and formerly free peasants (pp. 534–37). 19 In few cases, however, did the compensation, paid out largely in state bonds rather than in cash, enable the landlord to make adequate investments into his property, ibid., pp. 537–39, compare note 29; also, Albert Berzeviczy, op. cit., 11, pp. 64–66 and 374–76. 20 Imperial Decree of 29 November 1852. Section 17 of the Austrian Civil Code: ‘Whatever is not in conflict with innate natural rights shall be considered to be valid unless lawful restriction of these rights is proven.’ It followed from this presumption of the law, noted Wenzel, that diffferences of legal status between nobles, burghers and peasants no longer existed in civil law and equality before the law became one of its chief principles. Gusztáv Wenzel, Az ausztriai általános polgári törvénykönyv magyarázata, Pest, 1854, pp. 108–09. 21 The Chief Justice Conference of 1861, by co-ordinating Austrian and Hungarian civil laws, had already removed some of the uncertainties, but after 1867 the subject came up in debates in the House; on Deák’s position, see Manó Kónyi, Deák Ferencz beszédei, Budapest, 1898, v, pp. 402–05 (13 July 1868). 22 Section 15; cf. Section 2 of Ch. II on Penal Procedure, Provisional Judicial Rules, 1861. But, in private law, as Boldizsár Horvát pointed out in the closed session of the House on 18 June 1861, the Rules did not remove important diffferences in the status of nobles, 312 CHAPTER NINE place in the vocabulary of politics and law after 1867, and the issue was settled through judicial practice. Justice was administered by the courts on the assumption that the citizens were legally equal. This was the decisive factor as Hungarian law possessed a customary and historical, rather than a statutory and hermeneutical, character. The right of the individual to acquire, possess and inherit property without much restriction was established after 1867 with greater clarity than the principle of legal equality, although it took some time. There was no backtracking or ‘feudal reaction’ on property relations in any quarter of the landowning nobility when, in 1867, government passed into their hands. Rather than attempting to restore any of their ancient privileges, lost in 1848 and thereafter, landowner-politicians proclaimed with pride that in Hungary the nobility had voluntarily emancipated its own serfs23 and they hardly ever mentioned the fĳinancial compensation which noble landowners had received from the unconstitutional ‘Bach regime’ in the 1850s. But free and unrestricted land property for the former serf had yet to be clearly established by law. Law LIII of 1871 unambiguously declared that the former jobbágy telek in every respect became the property of the new peasant owner.24 This was not, however, the end of the matter: some lands in the possession of peasants had not been sessionati before 1848 and these were to be converted to full property after 1871.25 Also, the so-called regalia, the ‘remnants’ of obligations concerning hunting, fĳishing and so on and, above all, vineyards, had to be converted.26 In addition, ‘hundreds

burghers and former serfs. István Toldy, A magyar politikai szónoklat kézikönyve, Pest, 1866, II, pp. 269fff, esp. 273. 23 The claim that the Hungarian nobility was making a unique ‘sacrifĳice’ in embarking on social reforms afffecting its own privileges had been asserted even before 1848 by Kossuth’s confĳidant [Adolf Gyurmán], Magyar szózatok, Hamburg, 1847, pp. 267–68. The nobility’s sacrifĳice became a commonplace in the revolutionary announcements during 1848, for example Kossuth’s public appeal issued on 22 December 1848, reproduced in Sándor Márki, A modern Magyarország, Budapest, 1898, p. 178. The claim was repeated by historians, for example Albert Berzeviczy, op. cit., n, p.397. But see Ervin Szabó, Társadalmi is pártharcok a 48–49-es magyar forradalomban, Vienna, 1921, pp. 107fff., 198–99; Elemér Mályusz’s comment on this in Századok, 1922, p. 411 n. 1; and cf. note 15. 24 Sections 2 and 5, Law LIII of 1871; Section 83 ‘abolished all the diffferences’ between noble land (nemesi birtok) and the land of the former jobbágy; see Péter Hársfalvi, ‘Törekvések a parasztbirtok védelmére’, in István Szabó, A parasztság Magyarországon a kapitalizmus korában 1848–1914, II, pp. 153 and 158–59. 25 Section 14, Law LIII of 1871 concerning the úrbéri maradványföldek; see Lajos Für, Jobbágyföld – parasztföld’, in István Szabó, op. cit., I, pp. 85 fff., and on ‘cleared woodlands’, pp. 90 fff. 26 Boldizsár Horvát, Minister of Justice, and his team of offfĳicials drafted most of the bills. One on hunting was laid before the House on 6 August 1868. In the same sitting, aristocracy, gentry and parliamentary tradition 313 of thousands’ of contractualist peasants27 and the legal position of ‘settlers’ villages’ on crown property and elsewhere had to be sorted out.28 In the end class interests prevailed. Emancipation payments imposed on peasants dragged on for many decades after the 1870s. All in all, legislation on legal equality and property rights was piecemeal and fragmentary rather than general and comprehensive. This brief account of how the hereditary rights and obligations, tied to the land, were converted to a system based on individual property, at the free disposal of its owner, indicates that the landowners were able to safeguard their interests against bad bargains. In fact, the larger the estate, the less likely it was that its owner sufffered from the conversion. The aristocracy, by and large, managed quite well, although many gentry landowners sufffered material losses in the conversion and were in fĳinancial trouble in the 1870s or even earlier.29 Also, the landowners preserved their social pre-eminence to the full. Legal equality in Hungary was introduced so carefully that the social status of the titled nobility, and even of the ordinary nobility, was not undermined. In the age of capitalist entrepreneurship the ability of the

responding to a question put by Pál Somssich, Horvát promised to present shortly the bill on the vineyards: that went through to become Law XXIX of 1868 but the bill on hunting rights was lost, Az országgyűlés képviselőházának naplója, Pest, 1868 (hereafter: Képv. napló and Képv. irom.), IX, pp. 483–84. Lajos Für argued that the law on vineyards arrived too late to influence many settlements, István Szabó, op. cit., I, p. 108. 27 Kálmán Tisza’s interpellation on 6 August 1868, Képv. napló, VI, p. 464. Imre Huszár again urged Horvát to deal with the ‘contractualist villages’ on 29 May 1869, Képv. napló, I, p. 254. 28 See, for example, Laws XXV of 1869 and XXVI of 1870; both involved crown property. Law XXII of 1873 on the ‘settlers’ villages’ was passed after opposition from the Upper House which emasculated the bill, worked out by the liberal minister, Horvát, with the strong support of Deák and Tisza co-operating in harmony, that would have offfered the settlers’ villages better terms. On this issue the House was defeated by the Magnates, whose land rights were afffected. Although there were no settlers’ villages on gentry property, the stand made by the gentry-dominated House revealed a social conscience concerning peasant interests. The debate is well-described by Sándor Gyimesi in István Szabó, op. cit., I, pp. 189–206. Some of the villages were paying for their emancipation even after the First World War. 29 There is consensus among historians on the economic decline of the gentry; magnates obtained gentry property by litigation (Elemér Mályusz, op. cit., pp. 46, 55, 59); already before 1848 large numbers of gentry families were rapidly getting into debt (see Károly Vörös, MT, 5, 1980, p. 496). For the 1850s see Albert Berzeviczy, op. cit., II. pp. 375–76 and 397; also Tibor Kolossa, MT, 6, 1979, p. 819. The state-bonds paid by the state for compensation of the loss of the urbarial services did not enable the bulk of the gentry to mod- ernize their farms: György Szabad, ibid, pp. 537–38, 588; see note 19; see also id., Valóság, 1976, 5, p. 4). There were about 7,000 noble (middle) landowner families (half the size of what this group had been before 1848) in the Dualist era (Péter Hanák, MT, 7, 1978, pp. 450–51). 314 CHAPTER NINE

Hungarian social system to absorb rising groups survived intact by generating new layers of hereditary nobility. And so it was that university professors and successful merchants (with German lateiner or Jewish middle class backgrounds) took great pride in being granted the patent of nobility by the king, and likewise bankers in the conferment of the title of baron on their families.30

The Character of Political Reform

The character of the nineteenth-century reform of the political institutions guaranteed the ascendancy of the landowning nobility. And likewise, only those features of a liberal parliamentary system were introduced which allowed the retention of much of the crown’s traditional autocratic powers. The foundations of representative and responsible government were laid in 1848. The law divided Hungary and Croatia into 377 electoral districts to which Transylvania added seventy-three.31 The nobility retained the right to vote; for the non-nobles, franchise was introduced. In the past the exercise of executive power had been a part of the jura reservata majestatica, a reserved prerogative of the monarch. Now the diet enacted that in the future ‘executive power’ had to be exercised by the monarch through the ‘independent Hungarian responsible ministry’ (title and para. 3)’ Law IV (Section I) ordered that parliament be convoked annually in the new capital at Pest; the diet had, before 1848, met trienni- ally at Pressburg. After 1867 all heads of government and most Cabinet members were chosen from parliament. Law III of 1848 instituted the ministerial counter-signature (Section 18). The minister had to appear, answer questions and, when requested, submit papers to both Houses (Sections 29–30). The legal responsibility of the ministers was established by the law which provided that the House could by a majority resolve to impeach, and the Upper House, which tried the impeachment, could con- vict, a minister (Sections 32–35). This procedure was never used although there were a few attempts to initiate it. The chief reason for the lack of impeachments was that governments after 1867 also became politically responsible: none survived without the confĳidence of both parliament and the crown, although their political dependence on the latter was

30 Between 1800 and 1918, 338 Jewish families acquired nobility by patent, and barons of Jewish background were created; see William O. McCagg, Jewish Nobles and Geniuses in Modern Hungary, New York, 1972, pp. 21–22. 31 Section 5, Law v of 1848 and Section 7, Law II of Transylvania; cf. Andor Csizmadia, A magyar választási rendszer 1848–1849-ben, Budapest, 1963, p. 67 n. 28. aristocracy, gentry and parliamentary tradition 315 more obvious than on the former, even in the 1890s.32 Sándor Wekerle’s fĳirst administration had a secure parliamentary position in December 1894. The Cabinet fell because it had lost the confĳidence of the crown, and Wekerle said so in the House.33 Ministerial careers also depended on the monarch’s favour. The secret of the great survivor of post-1867 Hungarian politics, Baron Béla Wenckheim, a mediocrity who died in offfĳice in 1879, after twelve years of continuous service in six governments including his own, was that Franz Joseph liked him. The legislative programme of the government required the king’s approval.3434 Moreover, a government bill could be laid before parliament only after it had received the monarch’s ‘preliminary sanction’.35 Parliament was the true centre of national political life. But the electorate did not have the last word: governments were appointed fĳirst, elections were held after, and those already in offfĳice could normally count on a safe majority of supporters in any new parliament.36 The 1905 general election, which the Tisza government lost, was a unique event in Hungarian (and even in Central European) history – a singular and rather bizarre exception to the rule–which plunged the Monarchy into a protracted constitutional crisis. I shall return to the subject later.

32 Wekerle warned Ferenc Kossuth in 1894 that ‘our constitutional law could not be interpreted in such a way that, should the Independentist ideas [to introduce ‘personal union’] acquire a majority, the king, out of respect for the constitution would have to consent to them’ (Péter Hanák, ‘Iratok az 1894–95. évi magyar kormányválság történetéhez’, [hereafter: Iratok], Történelmi Szemle, Budapest, 1959, 3–4, p. 312 and n.3. Franz Joseph played a decisive role in the construction of the new Cabinet in late February 1875; see Viktória M Kondor, Az 1875-ös pártfúzió, Budapest, 1959, pp. 136–40; in fact, the monarch chose the political colour of the new parliamentary majority: the Liberal Party. 33 On 28 December 1894, Képv. napló, XXI, p. 464. Wekerle lost the confĳidence of the crown not because he had pushed through Church-State legislation, which Franz Joseph detested but knew was politically unavoidable, but because Wekerle showed altogether too much zeal in doing it; cf. Péter Hanák, Iratok, pp. 293–98. 34 Franz Joseph saw ministers individually and in Cabinet meetings, which he himself chaired when he chose to attend. The ministry frequently engaged in a dialogue and bargaining with the monarch over the political agenda, as for instance on 22 October 1908; see Library of the School of Slavonic and East European Studies (University of London), MS, ‘Andrássy Gyula naplója’, p. 185. 35 Emma Iványi, Magyar minisztertanácsi jegyzőkönyvek az első világháború korából, Budapest, 1960, pp. 532, 535. The monarch’s considerable power over the ministry and parliament is described by Péter Hanák, ‘Hungary in the Austro-Hungarian Monarchy’, Austrian History Yearbook, 1967, pp. 284–94. 36 Cecil S. Emden’s observation that in England even after 1688 ‘the king’s choice of his advisors was sometimes a determining factor in the membership of the House of Commons’ certainly applied to Hungary before 1914; see his The People and the Constitution, Oxford, 1956, p. 147. 316 CHAPTER NINE

The government did not have it all its own way, however. The House’s Opposition, indeed even a small minority of its members, could efffectively obstruct government business37 when grievances, it was felt, impinged on Hungary’s constitutional liberties and when national desiderata were pursued. Parliamentary obstruction could even destroy a government that had a solid majority support in the House. The government majority, the product of ‘the system’ and its corrupt elections, was ‘artifĳicial’; it distorted the true national will, or so it was claimed. A palliative against the ‘party absolutism’ that Kálmán Tisza had introduced after 1875, the obstrukció assisted government change through parliament without putting the 1867 constitutional settlement at risk by the destruction of the Sixty-Sevener parliamentary majority. Hence Lajos Mocsáry’s apt description of the political system as ‘parliamentary tyranny tempered by obstruction’.38 Thus parties did not alternate in offfĳice during the Dualist era, or indeed after. The new government came from the same majority that had maintained the old. After 1867 government was constitutional, representative and responsible, politically no less than legally, yet it was not parliamentary. Deák, Andrássy the elder, and the makers of the Settlement did not envisage parliamentary government but the maintenance of the balanced constitution through parliament. Government responsibility to parliament involved the obligation of the ministry to preserve the rights and interests of Hungary through maintaining the constitutional balance between the nation’s parliament and the crown—an external, even if not altogether alien, force. The responsibility of the government did not mean, however, its political dependence on parliament as the seat of ultimate political control: responsibility remained strictly dualistic.39 Political institutions have the propensity to exaggerate the influence of some social groups at the expense of others. The overwhelming political influence of the Hungarian landowning élite in the Dualist era is a good example. In many respects the changes introduced in 1848, and again in 1867, were more of form than of substance. The franchise, established by Law V of 1848, was a substantial reform; it replaced the old form of representation, based on hereditary right exercised via the counties. The franchise was not extended during the Dualist era however. The proportion of

37 The Standing Orders of the House gave ample opportunities for that before Tisza’s parliamentary coup of 1912. 38 Lajos Mocsáry, A közösügyi rendszer zárszámadása, Budapest, 1902, p. 134. 39 László Péter, ‘The Dualist Character of the 1867 Hungarian Settlement’, pp. 277–79 above. aristocracy, gentry and parliamentary tradition 317 the electorate remained for seventy years around six percent of the total population.40 ‘What, in 1848, could be regarded a liberal franchise became, by the beginning of the twentieth century, thoroughly obsolete.’41 Law XXXIII of 1874 ‘amended and supplemented’ the 1848 Law, without replacing it, narrowing the franchise but introducing a few procedural rules and leaving the relative size of the electorate largely unafffected.42 Liberal governments, because of the constitutional and the nationality questions, were not prepared to enlarge the electorate. It was equally signifĳicant that election habits after 1867 were not transformed; public voting rather than a secret ballot encouraged bribery and intimidation, as it had before 1848. The ‘customary feasting’, the violence, particularly government pressure43 and also (occasionally) the deployment of the military, were as much a part of the elections to the House after 1867 as they had been of the county deputies’ elections to the diet before 1848. Many of the voters were nobles who retained the right to vote even if otherwise not qualifĳied.44 The large number of ‘rotten boroughs’, all in the nationalities’ electoral districts, was a new feature, producing solid government supporters: roughly a quarter of the 413-member House. These facts go a long way to explain why, despite the introduction of Western constitutional forms based on the principle of legal equality, Hungary’s new political system turned out to be a parliamentary oligarchy of noble landowners. The relationship between land, nobility and offfĳice remained mysteriously close: land, lineage and, for leading posts, ownership of a title, were invincible assets for anyone with political

40 Or just under a quarter of all adult males. In the spring of 1848 around 6 per cent of the population was put on the electoral roll, compiled in great haste for the elections, although the law probably entitled many more to vote. Andor Csizmadia, op. cit., especially p. 105 n. 90, and p. 329, cf. pp. 326–29. 41 Ferenc Eckhart, Magyar alkotmány- és jogtörténet, Budapest, 1946, pp. 435–36. 42 In 1870 there were 890,000 persons on the electoral roll, 6.7 per cent of the population; in 1881 the fĳigures were: 821,000 and 6 per cent respectively. Law XIV of 1913 was yet another revision which extended the franchise by 28 per cent, bringing it to 8.7 per cent of the total population. No elections were ever held, however, on the basis of the 1913 Law because of the War and of the collapse of the Monarchy. 43 In their Address drafts in 1869, and particularly in 1872, the opposition parties bitterly complained to the monarch about government pressure, violence and illegalities that occurred at elections. See Képv. irom. (1869), I, pp. 18–l9, 25 and 33; Képv. irom. (1872), I, pp. 213–14 and 237. 44 Section I, Law V of 1848 and Law XXXIII of 1874 upheld the right of all those who had appeared on the electoral roll at least once ‘on the basis of old right’ (Section 2). On the importance of the ‘ancestral qualifĳicatiqn’, see R. W. Seton-Watson, Racial Problems in Hungary, London, 1908, p. 250 n.430; András Gerő, Az elsöprő kisebbség, Budapest, 1988, pp. 16, 24, 31, 58 (in the 1870s one seventh of the voters). 318 CHAPTER NINE ambition.45 When they were missing, ennoblement and conferment of title habitually crowned successful public careers. Of the sixteen Ministers President of the Dualist Hungary appointed between February 1867 and October 1918, not a single one had a ‘bourgeois’ background and all but one came from the nobility: ten were titled aristocrats46 and four were landed gentry.47 The remaining two both had an expertise in government fĳinance, a rare quality in Hungarian politics. László Lukács, a wealthy mine- owner whose family had been ennobled by Maria Theresa, was head of government briefly in 1912–13 after a distinguished career as Minister of Finance. Sándor Wekerle, three times Minister President, after a career as a civil servant and then Minister of Finance, became head of government in 1892 – uniquely and inimitably – without the patent of nobility. But Wekerle, whose father had been a bailifff working for a count, was the perfect assimilant: he married into a gentry family with a large estate.48 The Cabinet was also dominated by noble landowners. Of the eighteen Ministers of the Interior, seven were aristocrats; the rest were gentry landowners. Agriculture alternated between eleven aristocrats and eight gentry ministers. The aristocrats, however, shied away from portfolios requiring expertise and hard work: fĳinance was held by aristocrats mostly ad interim49 and there was not a single titled noble among the seventeen Ministers of Justice during the Dualist era.50

45 ‘The Left’, writes Ferenc Baráth in 1871, ‘was everywhere looking for a statesman-like magnate, or one with better than average oratorical abilities, in order to groom him for ministerial offfĳice, but they could not fĳind one’ (Apuleius, Nyugat-Európa és hazánk, Pest, 1871, p. 102). The Left Centre in 1871 was too far away from offfĳice to attract aristocrats of good standing; they flocked there later when the prospects for the party brightened up. On the role titled aristocrats played in politics, see Péter Hanák, Ungarn in der Donaumonarchie, Vienna, 1984, pp. 355–56. C. A. Macartney wrote: ‘If nothing could be done in Hungary without a count, this was due at least in part to the fact that in Hungary it was never impossible to fĳind a count both ready and able to do it’ (see hisHungary , London, 1934, p. 179). 46 Andrássy (count), Lónyay (count), Wenckheim (baron), Szapáry (count), Bánfffy (baron), Khuen-Héderváry (count), István Tisza (count), Fejérváry (baron), Esterházy (count) and, for one day, Károlyi (count). Apart from Wekerle, the joker in the pack of leading politicians, all the Ministers President who left offfĳice and were later recalled to it by the monarch were aristocrats. Count János Hadik, formally appointed on 30 October 1918, could not form a Cabinet and is not counted. Lónyay, Tisza and Fejérváry received their non-hereditary titles from Franz Joseph. 47 Szlávy, Bittó, Tisza (K) and Széll. 48 Péter Hanák, MT, 7, 1978, pp. 85–86. 49 The Minister of Finance’s post was more powerful than the other ministers’. Zoltán Magyary pointed out that the incumbent of this post had a good chance to replace the Minister President (see id., A magyar állam költsegvetési joga, Budapest, 1923, pp. 92–93). 50 These points are all from Ernő Lakatos’s A magyar politikai vezetőréteg 1848–1918, Budapest, 1942, pp. 34fff. I have revised his fĳigures, however, on the basis of József aristocracy, gentry and parliamentary tradition 319

For decades after 1867 parliament was, by and large, a ‘one class’ assembly of landowners and their descendants: the upper chamber was as securely dominated by the aristocracy as the elected chamber was by the gentry. Three-quarters of the House of Magnates’ members were titled nobles even after the 1885 reform. Again, over three-quarters of the House of Representatives’ members belonged to the nobility (including the aristocrats).51 Lakatos calculated that between 1861 and 1914 the percentage of the aristocracy in the House actually went up from 13.3 percent to 16.9 per cent, while the proportion of the landed gentry—from an incredible 64 per cent in 1861—slipped down to 41 per cent by 1914.52 All in all, nobility and landownership enjoyed preponderance in Hungarian politics in contrast to the urban interests, which could secure hardly any separate representation. Many a historian has pointed out that the wealthy merchants, bankers and industrialists of the towns (including, to an extent, even those of Budapest) largely lacked a ‘bourgeois’ character.53 Most of them, with a German, ‘Greek’ or immigrant Jewish background, displayed an outsider mentality: they bought land, hankered after patents of nobility, titles, and, when they could, became assimilant gentry.54

Bölöny’s Magyarország kormányai 1848–1987, Budapest, 1987, pp. 211–15, 229–31, 240–41, by leaving out all temporary incumbents and by adding the (properly appointed) members of the Károlyi Cabinet. 51 Ernő Lakatos, op. cit., pp. 29–34 and 49–50. ‘If the 13.3 per cent of aristocrats and the landless nobles, around 3 per cent, were added to the landed gentry’, writes Lakatos for 1861, ‘the feudal [rendi] elements of parliament were still around 80 per cent; and 12 per cent out of the 20 per cent remainder were [the representatives of] nationalities. We can safely conclude that it had not yet dawned on the bulk of Hungarians that they had been politically emancipated. There was no change for about another fĳifteen years’ (p. 49 n. 104). Lakatos’s calculations concerning noble descent were probably correct. One could ascertain whether the relationships between aristocratic title, gentry background and landownership had in fact been as close as Lakatos assumed. In Zoltán Szász’s assessment (not necessarily in conflict with Lakatos’s), a third of the House’s members were ‘large landowners’ and a quarter ‘well-to-do gentry’ in the 1880s (MT, 6, 1979, p. 1214). Péter Hanák writes tentatively that about half of the House’s members had noble background around 1900 but only 40 per cent of them possessed land and that ‘the rest possessed at most a profusely grown family tree’ (MT, 7, 1978, p. 451). Public offfĳice rather than land was probably the most important source of gentry power by the end of the century. 52 Lakatos, op. cit., pp. 29, 49, 52 (these percentages are probably too high!). In 1917 over 20 per cent of the government party was aristocrat (p. 30). 53 Péter Váczy, ‘A magyar társadalom kialakulása’, Magyar Szemle, Sept. 1937, pp. 7fff.; Lakatos, op. cit., pp. 45–48, 66 fff.; Péter Hanák, Ungarn, p. 303. In the 1870s the hegem- ony of the aristocracy and the gentry was unimpaired and the bourgeoisie lacked political weight, but by 1900, Hanák writes, political power at the highest level was shared between the ‘large landowners and the high bourgeoisie’ (MT, 7, 1978, pp. 427 and 435, but cf. note 3). 54 Lakatos, op. cit., pp. 73–74. Lakatos calculated that around 70–80 per cent of the new nobility were assimilant Hungarians (idegen származású, p. 46); compare William 320 CHAPTER NINE

Aristocracy versus Gentry

There is no simple answer to the question of whether the leadership within the landowning élite was in the hands of the aristocracy or the gentry. Ernő Lakatos, who carried out fundamental research into the subject fĳifty years ago, came to a defĳinite conclusion. He inferred the growing political influence of the aristocracy as a social class from the leading position of the aristocrats in the government and from their rising proportion in parliament. He wrote that ‘notwithstanding all the liberal and democratic slogans, until 1918 power was in the hands of the aristocracy and the role played by other classes was secondary’.55 These conclusions do not, however, necessarily follow. Titles were all too frequently conferred on politicians and civil servants already in offfĳice (thehomo novus is a government product rather than a representative of an independent social class). Facts described by Lakatos, the large-scale conferment of the title of ‘baron’ on leading government politicians under Count Tisza and the government party aristocrats with constituencies in the nationalities’ districts,56 where a government supporter could be elected only with the massive help of the local offfĳicials, suggest that a high proportion of the aristocrats in the House was politically heavily dependent on the government.57 Moreover the homo novus baron—a banker, for example— did not socially become a member of the national aristocracy. The holders of new titles—all supporters of István Tisza, also a homo novus, but a count—formed a distinct group. Lakatos’s study, far from being narrow number-crunching, was a fĳine piece of social history. Had the author placed his fĳindings in their institutional and political context, he might however have come to diffferent conclusions. The view that the gentry possessed more political influence than the aristocracy can be supported by evidence. A crucial argument of the Lakatos thesis is that the aristocracy preserved its overwhelming numerical superiority in the Upper House after

O McCagg, op. cit., pp. 21 fff., 25, 30, 38, 80, the author probably overrates the importance of the Jewish nobility. A representative sample shows that 60 per cent of the new nobility between 1867 and 1918 were army offfĳicers and civil servants and that less than one sixth came from the business classes (György Lengyel, Vállalkozók, bankárok, kereskedők, Budapest, 1989, pp. 60–61, compare Károly Vörös, Budapest története, IV, 1978, p. 424). 55 Lakatos, op. cit., pp. 34–35, and see remarks on pp. 28 and 94. 56 Ibid., p. 36. 57 Lakatos partly recognized this in his summary (ibid., p. 94); he also pointed out that already in 1884 out of the forty-one aristocrats of the government party, twenty-six were elected in constituencies dominated by nationalities (p. 36). aristocracy, gentry and parliamentary tradition 321

1848 and even after 1885 when it was reformed. But Lakatos did not consider that the political control parliament possessed was not, and perhaps never had been, equally divided between the two Houses. By and large the Upper House was in the eighteenth century a good deal more influential and in the nineteenth century much less influential than the Lower House. Formally and procedurally the two Houses were equal and communi- cated with each other through messages (nuntium and renuntium) without any restriction on either House. After 1790 the initiative, by custom, passed to the circularis sessio: the joint meeting of four ‘districts’ into which the counties used to be organized. The House of Deputies attained a decisive procedural advantage over the upper chamber when, in the 1840s, elements of the bill system complemented that of the nuntium in the proceedings of the circularis sessio.58 In 1848 the bill system was introduced wholesale by the new responsible ministry and the ascendancy of the House of Representatives over the Upper House became overwhelming. For years after the 1867 Settlement the Upper House (unreconstructed before the passing of Law VII of 1885) went into suspended animation; a few incidents apart, it rubber-stamped decisions taken by the other chamber dominated by the gentry. Although formally the two Houses had ‘equal rights’ even after 1848, an incident in 1867, when the President of the Upper House felt it necessary to insist on the equality of the two Houses and reject the role of being a mere cypher of the other House, demonstrated the extent to which the Upper House had lost power.59 The Minister of the Interior promised in the same debate ‘to do his best to prevent the Upper House from being pressurized’.60 In the Dualist era the Upper House fulfĳilled only to a small extent the function of a second chamber, namely the scrutiny and the revision of the bills passed by the elected chamber. The sessions of the Upper House were infrequent, short

58 István Ereky, Jogtörténelmi és közigazgatási jogi tanulmányok, Eperjes, 1917, II, pp. 73–78, but before 1848 the reform was fragmentary (see pp. 159–61). 59 On 30 December 1867, Főrendi napló, p. 322. 60 Ibid., p. 321. On the eclipse of the Upper House’s power, see János Beér and Andor Csizmadia, Az 1848/49. évi népképviseleti országgyűlés, Budapest, 1954, pp. 45–47. The Upper House’s authority sufffered a blow after 1848 when the President ceased to be the nádor (the Palatine), a member of the dynasty who could efffectively mediate between the crown and the diet in any conflict. Law VII of 1885 on the Alteration of the Constitution of the Upper House (its old title, főrendiház, was left unaltered) allowed the crown to appoint up to fĳifty members on the advice of the Council of Ministers. The President and the two Vice Presidents were appointed by the crown on the advice of the Minister President, Sections 5 and 15. 322 CHAPTER NINE and poorly attended. The unrestricted veto power was used sparingly. The prelates and the magnates, on occasion, however, blocked legislation, frustrating in efffect the will of the elected chamber and the government. But the power of veto was not used efffectively. By custom, after 1848 a titled noble could choose between taking his seat among the magnates of the Upper House and being elected to the House of Representatives: the result was a haemorrhage of political talent from which the Upper House never recovered. The two Andrássys, Albert Apponyi, the Zichys, Károlyis and many other aristocrats made their political careers in the House dominated by the gentry. The measure of the aristocracy and the gentry’s political influence goes well beyond the questions of coordinatio between the two chambers. Politics in Hungary, shaped for centuries by institutional bipolarity, which had a lasting efffect on the Hungarian political mentality, essentially concerned conflicts between the supporters of the crown and the nobility. The crown and the ország of Hungary, facing each other at the diet, resolved conflicts through tractatus enacted as decreta.61 In this process the aristocracy traditionally played the crucial role of the mediator between the noble ország and the crown. As such, the aristocracy in the eighteenth century played the dominant part at the diet, through the Upper House, and even in the counties.62 The rest of the nobility played second fĳiddle. In the nineteenth century, however, the counties, one by one, slipped out of the control of aristocrats.63 The old deferential system was breaking down; the ordinary nobility ‘passionately hated the aristocracy’.64 The titled nobility was now frequently denounced by provincial gentry politicians as an ‘oligarchy’.65

61 Laszló Péter, op. cit., pp. 232 fff above. The Land, or ország, of Hungary was declared regnum liberum et independens by art. X of 1790. 62 Elemér Mályusz, op. cit., pp. 40–41; Károly Vörös, MT, 4, 1989, p.683. As the aristocracy, the magnates and the bishops controlled most of the counties, the alispán being a servitor familiaris of the főispán, aristocrats used the generalis congregatio to prepare the agenda for the diet. 63 In 1790 the movement of the nobility was already anticlerical and anti-aristocratic. The counties came under the control of the elected alispán, rather than the appointed főispán and this change led to the assertion of independent gentry power in the Lower House of the diet. Although the ‘run-away’ counties in 1790 were a temporary hiccup, the political isolation of the magnates and the bishops in the counties after 1825 was observed by contemporaries; see Antal Csengery, Magyar szónokok és státusférfĳiak, Pest, 1851, p. 412; Mária Takács, Társadalmi állapotok es törekvések Magyarországon 1830–1847, Budapest, 1909, pp. 14–15. Until 1848 the aristocracy was, nevertheless, economically and politically ‘the leading class’ writes Károly Vörös, MT, 5, 1980, pp. 491–94. 64 Mályusz, op. cit., p. 53. 65 Takács, op. cit., pp. 59 fff., 70; sometimes even Széchenyi was not spared (p. 81). aristocracy, gentry and parliamentary tradition 323

The entry of liberal nationalism into politics aggravated the conflict between the aristocracy and the gentry.66 The new ideology gradually undermined the leadership of the former in resolving conflicts between ‘the nation’ (the nobility) and the crown. As aristocrats did not take easily to the new ideas, they were denounced by gentry politicians as anti- national. The primacy of the aristocracy was then challenged in the 1830s by the leaders of the Lower House. Kölcsey denied the right of 500 aristocrats (the Upper House) to obstruct the will of the 700,000 strong nobility (the Lower House).67 Kossuth’s reform programme was openly anti-aristocratic. His famous threat, that the reforms would have to be ‘carried through with them and by them if they [the aristocrats] want it, but without them and even against them, if necessary’,68 sent shivers down the aristocrats’ spines. Their leader, Count Aurél Dessewfffy, afraid of the destruction of the old social balance, moved ever closer to the government.69 Széchenyi’s social reform had no chance of success: the count addressed the aristocracy or perhaps an aristocratic élite that had never existed anywhere.70 And most of the other reform plans of the 1840s came to nothing largely because of the sharpening conflict between the county nobility and the aristocracy71 which helped the government to obstruct reforms. (The question was: who was going to take the credit for the introduction of reforms; neither side was inclined to give that advantage to its opponent.) The growing acceptance of the liberal nationalist reform programme explains ‘the rise of the Lower House’72 from the 1830s and its eventually successful bid for leadership in March 1848. The victory of Kossuth’s policy over Széchenyi’s epitomized the gentry ascendancy over the aristocracy in 1848. The April Laws became the standard-bearer of the nobility. The gentry supplanted the aristocracy. Those aristocrats who served in

66 Ibid., p. 52; and see note 9. 67 Ferenc Kölcsey argued in the Lower House on 4 March 1833 that the two Houses constituted ‘one legislative body’ to which the majority principle should apply. The issue was the replacement of Latin by Hungarian in public life; see his Összes művei, Budapest, 1960, II p. 72. 68 Takács, op. cit., p.66, and János Varga, Kereszttűzben a Pesti Hirlap, Budapest, 1983, pp. 45–46. 69 Social reform, wrote Dessewfffy in 1838, should be carried out by the government and the ‘propertied aristocracy’, otherwise ‘the balance is upset to the detriment of the aristocracy’, quoted by Mária Takács, op. cit., p. 73. 70 Mályusz, op. cit., p.60; a ‘group of fearless argonauts’ (András Gergely, Széchenyi eszmerendszerének kialakulása, Budapest, 1972, p. 132). 71 Takács, op. cit., pp. 82 and 85. 72 Ibid., p. 55. 324 CHAPTER NINE the ‘independent and responsible ministry’ were carrying out gentry policies. During the Bach regime the aristocracy, through the Conservative party, did its best to retake the leadership from the landed gentry,73 who were now led by Deák. This course, through the enactment of the October Diploma in 1860, led to a spectacular fĳiasco. Politically the Conservatives were born with a silver knife in their backs: having all the social advantages of aristocratic birth and high connections, as supporters of the Hungarian Chancellor and the Council of Lieutenancy, they were seen in the country as clients of the outgoing regime. In fact, they were the king’s men who, ever since the 1850s, had been working for a constitutional settlement between the monarch and Hungary. What distinguished them from the Deák party of the landed gentry was their less than robust concern for Hungary’s institutional separation from the ‘Other Lands’ of the Monarchy at the expense of imperial unity. The aristocracy in the end followed Deák and the gentry. Being on a losing wicket, the Conservatives had hoped to form, eventually, a coalition government with Deák. His entourage, however, had fĳirmly rebufffed their advances before the Andrássy Cabinet was appointed and Deák’s Settlement became an established fact. After the Settlement was out of the way, the Conservatives, led by Count György Apponyi and later by Baron Pál Sennyey, had accepted it in good faith and became supporters of the Andrássy government. A few years later, however, Sennyey tried once more to put life into a Conservative party which would articulate the separate interests of the aristocracy. The plan, although supported by the crown, did not get offf the ground. Sennyey soon handed over to Count Albert Apponyi who in his time became a devastatingly popular leader of an opposition party, precisely because his policies and rhetoric attracted all sections of the nobility, and even beyond, rather than the narrow group of aristocrats.74

73 See Albert Berzeviczy on the Conservative aristocrats in 1849–50, op. cit., I, pp. 59–64, 112, 159–60. The Conservatives re-formed in May 1857 when they unsuccessfully tried to submit a petition to the monarch on his visit to Hungary. The ‘respectful address’, drafted by Count Emil Dessewlfy, was signed by 131 of them, including leading Catholic prelates: see Laszló Szögyény-Marich, Emlékiratai, Budapest, 1917, 11, pp. 80–97; Kónyi, op. cit., 11, pp. 397–403 (list of the signatories); Berzeviczy, op. cit., 11, pp. 117–21 (Vienna’s reaction to the attempt at petitioning the monarch); pp. 157 fff. (even in 1858 the Conservatives were the only political party); ibid., Ill, pp. 134–35 (the Conservatives fathered the October Diploma); Peter I. Hidas, The Metamorphosis of a Social Class in Hungary, New York, 1977, pp. 50–63, 77 fff. (the re-emergence of the Conservatives in 1849 and their gentry support); György Szabad, MT, 6, 1979, pp. 491–94 (on Conservative policy in the 1850s). 74 Apponyi complained in his memoirs that he ‘had found only little support in the aristocracy’ (Count Albert Apponyi, Emlékirataim, ötven év, Budapest, 1922, p. 157); his aristocracy, gentry and parliamentary tradition 325

The Political Traditions of the Aristocracy and the Gentry

The diffferent political attitudes of the aristocracy and the gentry were shaped by the fundamentally dualistic character of Hungary’s institutions. Two forces, bearers of customary rights, faced each other: the crown, whose rights to rule and govern were vested in the alien Habsburg dynasty, and the diet, a repository of corporate rights vested in the noble ország or the Hungarian nation. Politics was essentially about conflicts between the two sides and their resolutions. This structural dualism of the crown versus the ország generated opposing attitudes in the political élite which traditionally coincided with the social division separating the titled from the untitled nobility. Hungary was ruled by a limited monarchy: the nobility owed allegiance to the crown which, in turn, in the coronation oath and in the inaugural certifĳicate, solemnly promised to maintain the ország’s rights unimpaired. The two parties of this ‘mutual and reciprocal’ relationship were not equal. The crown, and its government, were much the stronger of the two forces: Hungary was only one of the many hereditary Lands which the Habsburg dynasty, through the system of succession, possessed indivisibiliter ac inseparabiliter.75 The vast imperial power at the disposal of the crown and its government was itself a threat to the two sides’ constitutional balance, the maintenance of which was essential to the ország’s separate existence. Therefore, loyalty to the throne and to the preservation of Hungary’s rights appeared to be conflicting duties and roles. The resolution of this conflict provides the key to understanding the aristocrats’ and the gentry’s diffferent political attitudes. The aristocrats, all Catholics, at least in the west, benefĳiciaries of the monarch’s favour and preferment in the distribution of offfĳices, many of them staunch defenders of Hungary’s rights, nevertheless believed obedience to the monarch’s considered and clearly expressed will to be an overriding duty. In contrast, the untitled nobility, led by the partly Protestant gentry of eastern Hungary, invariably put the separate interests of the ‘nation’, as they saw them, fĳirst, whenever they conflicted with the policy pursued by the Court and its government. The untitled nobility, however, did not

political opponent, alleging that Apponyi’s party was the mouthpiece of the Magnate’s Casino, was greatly exaggerating, see József Kristófffy, Magyarország kálváriája, Budapest, 1927, p. 36. 75 The Hungarian Pragmatic Sanction, Section 7, art. II of 1723. 326 CHAPTER NINE wield any direct influence on government policy before representative government was introduced. Before 1780 stability in the relationships between the crown and the nobility was ensured by the ascendancy of the aristocracy over the rest of the nobility. At the apex of power, the leading families, a nobility de robe of a sort: holders of high offfĳice and owners of substantial land, staunch supporters of the crown and loyal also to their Hungarian patria,76 successfully mediated between the two sides and maintained the political balance between the Court and the nobility. This powerful factor in fĳinding modus vivendi from time to time between the crown and the nobility was, however, undermined by Joseph II’s ten-year rule, which fatally damaged the aristocracy’s dominance in politics and pari passu the principle of obedience to the will of the monarch. After 1825, when the influence of the landed gentry was growing through the rise of the Lower House, mediation by the aristocracy, caught between two forces, to reduce political conflict between the increasingly self-confĳident separatist gentry and the crown’s government, no longer worked.77 The aristocracy, as an independent political force, became less successful and in times of crisis was forced to choose between obedience to the will of the monarch and the aspirations of the gentry-led nation. Some went one way, others the opposite way. Until 1918, in the triangular relationship among the crown’s government and the diet’s (later parliament’s) two Houses, essentially the same division of attitudes between the aristocracy and the gentry emerged, from time to time and in diffferent forms. In the 1840s, when the gentry championed ország rights combined with liberal social reform, and the conflict between the Lower House and the government was growing, loyal aristocrats formed the Conservative

76 Historians used to describe the Hungarian aristocracy as an integrated part of the Monarchy’s leading élite. Henrik Marczali’s ‘court nobility’ lived in Vienna and was on the way to being alienated from the nation: see his Hungary in the Eighteenth Century, Cambridge, 1910, pp. 114–20; also Imre Wellman, ‘Az udvari ember’, in Sándor Domanovszky (ed.), op. cit., IV, especially pp. 301–04. Recent research does not bear out the view of an alienated aristocracy. P.G.M. Dickson found very few indignae families among the wealthiest aristocrats, magnates did not intermarry extensively with Austrian and Bohemian families and the growing residence of Hungarian aristocrats in Vienna ‘appears to be a myth’ (id., op. cit., I, p. 112). Éva H. Balázs’s numerous examples give the lie to the thesis that an ‘alienated’ aristocracy was loyal to Vienna rather than to Vienna and Hungary (MT, 4, 1989, pp. 897–903). 77 ‘The magnates acted only the part of intermediaries between the nation and the crown, and when events were heading for a crisis, were driven increasingly to act simply as brakes on the wheels’, C. A. Macartney, op. cit., pp. 187–88. aristocracy, gentry and parliamentary tradition 327 party. This constituted an unsuccessful attempt to carry out limited reform together with the government in order to avoid a slide towards irreparable conflict between the diet and the crown. In 1848, the year of open rift between the gentry and the crown, the bulk of the aristocracy withdrew from active politics. Those who did not, even after September 1848, when relations between the Imperial authorities and the Hungarian government ruptured, were either under the spell of Kossuth and carried out gentry policies or helped the Imperial government to put down the rebellion. The Conservative party of the aristocracy re-emerged as an independent political force in late 1849 to work for a constitutional settlement with the crown. Their efffort eventually bore fruit in the enactment of the 1860 October Diploma, which, however, merely opened the door to Deák’s policies. The diffferences between the two were real. They boiled down to the following: while the aristocracy, under the October Diploma introduced by octroi, was prepared to send representatives to an imperial central parliament in Vienna, the Hungarian ‘separatist’ gentry ada- mantly refused to do so and demanded the restoration of Hungary’s 1848 Constitution. The gentry won hands down in the country and forced the Conservatives to accept Deák’s policies as well as gentry leadership. The 1867 Settlement secured ország rights far more efffectively than any of the Conservative blueprints envisaged earlier would have done. Aristocratic mediation did not work. Never was Hungarian politics dominated so much by the gentry as in 1848 and in the 1860s.78 The Conservatives once more, under Sennyey, became an independent political force when, after the fall of Lónyay’s government in 1872, decay set in, in the Deák party. Moderates and defenders of the 1867 Settlement intact, the Conservatives now competed for power with Tisza’s Left Centre, the gentry party par excellence, which demanded revision of the Settlement and the greater economic separation of Hungary from the rest of the Empire. After Sennyey lost the battle- of which the outcome was never in serious doubt – the new Liberal Party was able to attract aristocrats without, however, losing its gentry outlook. Movements initiated by or associated closely with the aristocracy fared no better after the 1870s than before. The social question, Church-state relations and the constitutional question shed some light on the political attitudes of the aristocracy and the limits of aristocratic political influence.

78 Zoltán Lippay, a chronicler of the gentry fortunes, makes the point as regards the 1860s, A magyar birtokos középosztály és a közélet, Budapest, 1919, p. 98, see also pp. 144–45. 328 CHAPTER NINE

The Influence of the Aristocracy on Political Issues

The Social Question When it appeared in the 1870s the ‘social question’ in Hungary did not, as it did elsewhere in Europe, concern the protection of the workers or the ‘little man’ from the (undesirable) consequences of unbridled free enterprise. It was about the protection of the landowner from the (undesirable) consequences of free enterprise, of the chronic agrarian depression of the late nineteenth century and of the landlord’s own inefffĳiciency as a producer. The Agrarian Movement had a wider social purpose: it aimed to protect all agricultural producers small and large. It was launched in 1879 by the cream of the national aristocracy, counts Jenő Zichy, Aurél Dessewfffy, Pál Széchenyi and Sándor Károlyi, the last to become its leader.79 The movement acted as much in the interests of the gentry and perhaps even of the peasantry as in those of the aristocracy. Yet the Agrarians were not strong enough to form their own separate political party.80 The hold of constitutional questions on the minds of politicians and the public was too strong to allow for that. Instead, an agrarian parliamentary lobby developed. Some agrarian politicians supported the Liberal government, others acted as a pressure group, led by Károlyi, an associate of Albert Apponyi, influencing policy from the Opposition benches.81 The long tenure of Ignác Darányi, who as Minister of Agriculture established interventionist policies, is to the credit of the agrarian lobby.82 But Darányi’s measures were designed to protect all landowners from the efffects of competition rather than to further the aristocrats’ interests.83

Church-State Relations Church-state relations were far more important in politics during the Dualist era than social questions. The subject produced conflicts and

79 See János Horváth, Gróf Károlyi Sándor és vezérkara, Budapest, 1916, for a concise summary of the co-operative movement. 80 This was bitterly lamented by the Agrarian landowner; see Zoltán Lippay, op. cit., p. 116. 81 Albert Apponyi, op. cit., pp. 131–35. 82 Dr Darányi served as Minister of Agriculture between 1895 and 1903 in three successive Liberal Cabinets, and again during the Coalition Cabinet between 1906 and 1910. Darányi was greatly influenced by Count Károlyi’s ideas. 83 Darányi’s report to parliament, submitted at the end of his fĳirst tenure, was a proud compendium of state entrepreneurship in agriculture as well as an account of the help given to the landowner ‘to help himself’. Also published in English as The State and Agriculture in Hungary, London, 1905. On the agrarian movement, see Zoltán Szász in MT, 6, 1979, pp. 1258–65. aristocracy, gentry and parliamentary tradition 329 crises, which social questions never did. For forty years after the 1867 Settlement the Roman Catholic Church was on the defensive. The liberal and largely anticlerical majority of the elected chamber, dominated by the partly Protestant gentry, demanded legislation to secure religious equality. The press and the public, at least in the capital, were secularist. The Roman Catholic Church was badly in need of protection and the aristocracy offfered whatever it could in the Upper House. But the critical factor was the crown, the staunchest supporter of the Church. Radical plans, such as the nationalization of the Church funds,84 statutory provisions for liberty of conscience to replace the higgledy-piggledy system of customary rights that governed the relations of the various Churches and the state, could not even get past the lower chamber because the government was unable to secure the monarch’s ‘preliminary sanction’ to introduce the bills. The bishops and the lay aristocracy formed the second line of defence. They had a strong card: the government needed the support of the Upper House (solid Sixty-Seveners to a man), against the opposition to Deák’s Settlement in the lower chamber and in the public. As the defence of the 1867 Constitution was the major consideration of the government during the Dualist era, it could not affford a Kulturkampf. Attempts to bring mixed marriage between Jews and Christians under statutory law failed in the 1880s because of opposition in the Upper House.85 The successes of the Church and the aristocracy in blocking legislature detrimental to Roman Catholic interests were nevertheless limited and temporary: the Church sufffered defeats and forced compromises. It lost a battle as early as 1868 on the question of the religion of children from mixed marriages. This defeat opened a Pandora’s Box of sectarian strife for decades to come. The outcome of the debate on this issue is particularly revealing because the anticlerical gentry majority of the House of

84 The religious fund and the education fund were the two largest Roman Catholic funds. They accrued from the intercalaris revenues of episcopal sees, and private donations, as well as from the confĳiscated properties of former religious orders. The funds were administered, on behalf of the Church by the government, following Erastian principles. After 1867, the funds were managed in co-operation with the Church, by the Ministry of Religion (the kultusz) and Public Education. Some of the funds did not appear in the state budget. Time and again disputes flared up in the House of Representatives as to whether the funds were state funds or belonged to the Church. On their background, see Móritz Csáky, ‘Die römisch-katolische Kirche in Ungarn’, in Adam Wandruszka and Peter Urbanitsch (eds), Die Konfessionen, Habsburgermonarchie 1848–1918, vol. IV, Vienna, 1985, pp. 271–75. 85 László Péter, ‘Hungarian Liberals and Church-State Relations, 1867–1900’, Hungary and European Civilisation, Budapest, 1989, pp. 91–92. 330 CHAPTER NINE

Representatives did not merely overcome the opposition from Catholic interests; it inflicted defeat, at the same time, on a government proposal introduced by Baron József Eötvös, Minister of Religion and Public Education, and backed by Deák (both were Roman Catholic).86 The government bill left it to the parents in a mixed marriage to decide the religion of their children. In the committee stage Eötvös’s principle was, however, replaced by that of sexus sexum sequitur, borrowed from Transylvanian law. The revised bill went through parliament. The law imposed a duty on the Catholic partner of a mixed marriage which was in conflict with Catholic theology.87 Catholic church authorities allowed mixed marriages on the strict condition of an ‘assurance’ (téritvény)88 whereby the non-Catholic partner agreed to bring up the children of both sexes in the Roman Catholic faith. It was precisely to stop this practice that Protestants and anticlerical liberals successfully combined against the Catholic and the libertarian vote in parliament.89 The Catholic Church did not stop the practice of exacting ‘assurances’ after 1868 and local priests, now unlawfully, baptized children of both sexes from mixed marriages. Enraged Protestant parsons, their parliamentary supporters and the press demanded retribution by the law which led to elkeresztelés crises.90 As the courts were not prepared to punish priests for carrying out a religious duty, the cases were transferred to the administrative authorities in 1890 under a ministerial ordinance, instead of being heard in courts. Now Roman Catholic priests sufffered the humili- ation of being fĳined, even sent to prison.91 There was but one-way out of the festering sectarian conflict between the Roman Catholic and the Protestant churches: the introduction of civil marriage, which an increasing number of politicians deemed unavoidable. After Franz Joseph had reluctantly given permission to the Wekerle government to introduce legislation, the Church and the magnates of the Upper House were left in an exposed position. The crown appeared to be neutral in the battle. The bills on civil marriage and four other bills on Church-state relations went through the House of Representatives with a large majority in the course of 1894. As expected, the Church and the Catholic aristocrats

86 Ibid., pp. 95–96 and notes 62–65. 87 Section 12, Law LIII of 1868. 88 Commonly called reverzális, formed on the Latin reversales and German Reverse. 89 Eötvös’s principle was libertarian: it asserted the parents’ right of choice and protected it by banning ‘assurance letters’ exacted beforehand. 90 Coined on the German wegtaufen (baptised offf). 91 L. Péter, ‘Hungarian Liberals and Church-State Relations, 1867–1900’, pp. 96–101. aristocracy, gentry and parliamentary tradition 331 put up a fĳierce fĳight against the whole reform package. They proved stronger than the combined force of the government party of the Upper House (many of whom were appointed members) and the Protestant magnates. After the Upper House had thrown out the bill on civil marriage the crown forced Wekerle into resignation. When however Khuen- Hédervary, the crown’s candidate, could not form a new Cabinet, Franz Joseph had to turn back to Wekerle who, reappointed, was allowed to use the crown’s authority to put pressure on Catholic aristocrats to let the bills through. Afraid of Pairschub92 the opposition allowed three of the fĳive bills through. If Franz Joseph had given his royal sanction to these measures straight away, aristocratic opposition to the remaining two bills would have soon collapsed; but he did not and that put new heart into the Roman Catholic cause. The monarch meanwhile came to the conclusion that he could not get rid of Wekerle (an overriding consideration) without the three bills being duly promulgated. After this had happened, the new Prime Minister Bánfffy was left with the job of completing the reform. The Upper House was forced after three rejections to let through the last bill, ‘On the Free Exercise of Religion’, the fourth time with the application of Pairschub and the threat of the further creation of peers if necessary.93 The Church-state legislation of the 1890s shows the limits to which the independent aristocracy could go in asserting political power. Aristocrats could remonstrate, occasionally obstruct and even rebel against the domination of the other chamber. They could not win a set battle even when the crown, a closet supporter who at times engaged in manœuvres to help, was sympathetic to their cause. The establishment of the Catholic People’s Party in January 1895 by Count Nándor Zichy, a Conservative old hand, other Zichys and one Esterházy (all counts) undoubtedly weakened the Sixty-Sevener camp but it also marked the defeat of the ‘Ultramontane’ forces. The Conservative-Liberal divide remained an undercurrent in Hungarian politics. It had no chance of supplanting the fundamental political divide between the defenders and the opponents of the 1867 Settlement.

92 Under Section 5, Law VII of 1885, the crown could, on the advice of the Council of Ministers, create up to fĳifty life peers. 93 The classic account of the Church-State legislation in 1894–95 in Gábor Salacz, A magyar kultúrharc története 1890–1895, Vienna, 1938, ch. 5. For a shorter description, see Moritz Csáky, Der Kulturkampf in Ungarn, Graz, 1967, pp. 92–102. The documents of the government crisis in 1894 were published by Péter Hanák, Iratok, pp. 304–51. 332 CHAPTER NINE

The Constitutional Question The structural polarity of crown versus ország reappeared in politics after 1867 as the constitutional question: ‘the issue of public law’. The driving force of Hungarian politics right up to 1918, the issue centred on preoccupations about Hungary’s relationship to the crown and the Empire in public law. Moderates accepted and defended the 1867 constitutional Settlement and were in government. The moderate opposition re-interpreted the Settlement in order to extract further ‘concessions’ from Franz Joseph to bolster Hungary’s separate standing. The radical opposition rejected the Settlement altogether, demanding the repeal of the laws which had set up the common (imperial) institutions, above all the common army. They aimed at the ‘restoration’ of a purely personal union with Austria on the basis of the 1848 Laws. It was the constitutional rather than any other issue that divided the parties in the gentry- dominated House of Representatives, made and unmade politicians and governments, and plunged the Monarchy into a protracted crisis after the turn of the century. The crisis emerged in late 1902 when the Koerber government in the Reichsrat and the Széll government in the Hungarian parliament introduced legislation to raise the common army’s annual contingent of recruits from 103,100 to 125,000.94 At fĳirst only small groups of Forty-eighters and later an obstructing House of Representatives began to treat the passing of the two bills as a bargaining counter for national ‘army concessions’ by the monarch. The aristocracy’s political power should be measured by its ability to produce distinct attitudes and policies which, while remaining loyal to the crown, could, with some success, mediate between the monarch and the majority of the nation’s elected representatives. Where should one look for such attitudes and policies? Certainly not in the Upper House which, in contrast to the robust attitudes shown during the crisis over church legislation a few years before, slept through the constitutional crisis of 1905–06. There is no evidence that the Magnates of the Upper House had a policy distinct from the other House’s and the crown’s, let alone one that had any impact on either side.95 This itself, of course, points to a conclusion. Yet it is necessary to look at the House of Representatives

94 This reform, which was in line with the population growth, would have increased the Hungarian complement from 43,889 to 53,438 and the honvéd recruits from 12,500 to 15,500 men. 95 József Kristófffy,op. cit., describes the aristocracy as ‘leaderless’ (p. 161). aristocracy, gentry and parliamentary tradition 333

(hereafter: the House) where a large number of aristocrats was active, and where some of them played leading roles. Of the three layers of the aristocracy96 that made up the titled nobility we need be concerned only with the middle group. The ‘princely families’ and some families who intermarried with Austrian and Bohemian families, constituted the top class of the aristocracy. Hardly any of them were engaged in Hungarian politics, let alone stood for parliamentary election. The third layer, the ‘new barons’ and some Protestant families, stayed with Tisza during the conflict between parliament and the crown, and after their leader had lost the premiership in the Spring of 1905 stood on the sidelines. The active participants in the crisis largely came from the middle drawer of the titled nobility, the ‘national aristocracy’. These were well established families, holders of the title ‘count’ for many a generation, like the Andrássy, Apponyi, Batthyány, Csáky, Dessewfffy, Esterházy, Károlyi, Széchenyi, Sztáray and Zichy families. As a group they were sufffĳiciently independent to acquire seats in the House without support from the government. Before the crisis many of the independent aristocrats belonged, as a distinct group, to the governing Liberal Party; Julius Andrássy (the younger) was their leader and, because they had seceded from the party during the Bánfffy crisis in 1898, they were called ‘the Dissidents’.97 The Andrássy group once more defected from the Liberals in 1904 arid later formed the Constitution Party. Other aristocrats were in the opposition: Albert Apponyi’s National Party (apart from the years 1899–1903 when the party merged with the Liberals) and the Zichys, who led the Catholic People’s Party. Before the crisis all these groups were Sixty-seveners, but that was about all they had in common on the constitutional question. Their politics diverged. The avowed aim of the Catholic

96 The aristocracy was distinguished into three ‘classes’ by József Kristófffy: the fĳirst class (princely families) stood away from the constitutional crisis; the second class was made up by the historic families, all counts and Roman Catholic, ‘active participants’ against the king; the Protestant families, the third class, stayed with Tisza during the crisis (ibid., p. 162). Tibor Kolossa, writing about the 1860s, distinguished the (1) indigenae and the aulic aristocracy, a supranational group, (2) the liberal aristocracy of Hungary, participants in political life, and (3) the Protestant Transylvanian aristocracy (MT, 6, 1979, p. 82 I). Law VIII of 1886, for the reformed Upper House, listed seventeen princely families (all but three indigenae), 133 count (fĳifty-nine indigenae) families and 116 baronial (twenty-six indigenae) families (József Bölöny, História, 1981, 4, p. 32). Péter Hanák distinguished the ‘supranational’ aristocracy (about 100 families) from the families which traditionally participated in politics. The poorer families, from the Highlands and Transylvania, did not quite belong to this group and the new barons (fĳifty families) again formed a separate group after the turn of the century (MT, 7, 1978, pp. 436–37). 97 They were also known as ‘the counts’ (Kristófffy,op. cit., p. 59). 334 CHAPTER NINE

People’s Party was to drag politics away from constitutional questions altogether. Its hatred of Tisza was, however, so strong that it became the fĳirst Sixty-sevener party to use ‘technical’ fĳilibustering; later it joined the Coalition of parties, led by gentry Forty-eighters, to fĳight Tisza at the general election in January 1905. While the People’s Party, through a temporary aberration perhaps, was compelled by circumstances to support gentry policies on the army which created the crisis, Count Apponyi, the standard-bearer of the army demands in politics for two decades, may have been himself (though his aristocrat associates were not)98 the critical factor in bringing about the constitutional crisis. The charismatic leader of the National Party, and a great communicator, Apponyi, popularized, and partly even invented, the conceptual tools which destabilized the Liberal Party. He believed that, under the 1867 Settlement Law, Hungary possessed dormant rights which, when resuscitated, would enable the nation to realize its aspiration to turn an alien ‘German’ army into a force which adequately expressed the idea that Hungary was legally a sovereign independent state. The projec- tion of new political demands into the Settlement Law gradually undermined (as the Forty-eighters’ arguments never could) the belief of the House’s majority that the makers of the Settlement, Deák and Andrássy the elder, knew better. Apponyi’s programme could not be accepted by the crown: the programme periodically shifted, though the principle did not. For years the National Party’s main constitutional demand was the creation of a military academy. A few years after 1897, when a Hungarian Stafff College (the Ludovika) and Hungarian cadet schools had been established, Apponyi acquired a new agenda: Hungarian should gradually replace the German language in the common army’s Hungarian units. As President of the House under the Széll government Apponyi helped the ‘strugglers’99 from the Chair.100 In return for letting the two army bills through the House, these fĳilibustering Forty-eighters, demand ed a quid pro quo: the introduction of Hungarian as the language of service and command in the Hungarian regiments. After the destruction

98 Most of them were lukewarm about the army demands and Sándor Károlyi’s Agrarians were less than lukewarm; see Apponyi, op. cit., pp. I 17, 157 fff. 99 The kűzdők were the hard core of fĳilibustering radical Forty-eighters. 100 Apponyi received, with pomp and publicity, petitioners for a national army. More important: he sent a confĳidential memo to the government on the army question and then leaked it to the press, a great morale-booster to the ‘strugglers’. Apponyi in vol. II of his Emlékiratai, Budapest, 1934, abundantly quoted from his memos without explaining their context (pp. 79–84). aristocracy, gentry and parliamentary tradition 335 of two governments, the monarch, in October 1903, was prepared to make concessions on a few specifĳic points in order to help Tisza form a government. At that point Apponyi, however, chose the political wilderness: he resigned from the Chair of the House and, with a few associates, left the Liberal Party. The agrarian aristocrats did not follow him. Apponyi soon renounced the Sixty-Seven constitutional basis, threw in his lot with Ferenc Kossuth’s Forty-eighters and became the leading light of radical constitutionalism during the open conflict between parliament and the crown. It is not surprising that the bulk of Apponyi’ s aristocrat associates did not follow their leader. Andrássy had described him years before the crisis as the ‘stalking-horse’ for the Forty-eighter camp.101 At heart a radical because of the strength of his convictions, Apponyi never used his authority with the gentry masses to mediate in the crisis between the two sides. Instead of helping to put out the fĳire or contain it, Apponyi was the stoker of the engine, fuelled by-gentry desiderata that pushed politics towards deeper crises. Gyula Andrássy should have been the mediator. Seasoned observers of the political scene liked to cast the son of Deák’s ‘providential man’102 in that most desirable but hardly attainable role of delivering the national desiderata without losing the confĳidence of the monarch. Andrássy’s credentials before the crown were impeccable. A staunch defender of the ‘67 system in the House in which he was a Liberal member from 1885, Andrássy was minister a latere in 1894 and President of the Hungarian Delegation in 1902. His book on the 1867 Settlement, published in 1896, was a masterpiece in defence of the constitutional balance between the monarch and parliament. Fired by the traditional attitude of an aristocrat politician, he concluded that loyalty to the crown was not enough to maintain that balance. Harmony between the two sides could be preserved only if the nation exercised self-restraint and asked for nothing from its constitutional king which he, as a constitutional ruler of Austria, could not allow to happen.103 In the early phase of the army crisis, Andrássy made a powerful speech in the House defending the two

101 Count Gyula Andrássy, Az 1867-iki kiegyezésről, Budapest, 1896, pp. 383–86. 102 Ferenc Deák’s epithet bestowed on Gyula Andrássy the Elder, who in 1867, enjoying the full confĳidence of both sides, could reconcile the monarch with the aspirations of the nation (Manó Kónyi, op. cit., IV, p. 328). 103 The point is brilliantly argued by Count Gyula Andrássy, op. cit., Budapest, 1896, p. 445; the only fault of the book is its length. 336 CHAPTER NINE government bills, which raised the annual contingent of recruits without tying the passing of the bills to any quid pro quo.104 When, however, later in the same debate Tisza declared that he concurred with everything that Andrássy had said, the Opposition was seemingly disappointed that the two Liberal politicians were ‘tarred with the same brush’.105 Andrássy was popular with the opposition; Tisza was not. The two politicians led factions in the Liberal Party which, among others, were in disagreement on what to do with the obstrukció (fĳilibustering) of the Forty-eighter opposition. Whereas the Tisza group sought the remedy in augmenting the powers of the Chair by the revision of the House’s Standing Orders, the Andrássy-led aristocrats would have nothing to do with that. In their view, once the authority of the Chair was established so that obstrukció was no longer possible, the fĳine constitutional balance among the crown, the government and the legislature was fatally impaired. This attitude was what we should, in the circumstances, expect from independent-minded aristocrats: after all, obstruction had always been an essential part of the constitution.106 And so it happened that during the Bánfffy crisis in 1898 when the danger of the Standing Orders’ revision loomed large, the Andrássy group deserted the government, and thereby hastened Bánfffy’s fall, averted the upsetting of the constitutional balance and acquired some popularity with the opposition. The same problem returned with a vengeance in November 1904 when, however, the situation was, and the outcome became, quite diffferent. By the time Tisza, now Minister President, won the argument within the Liberal Party to change the Standing Orders, the revision could be carried out only by the infraction of the existing Standing Orders.107 The Andrássy group then left the Liberal Party never to return and the uproar against Tisza’s parliamentary coup was so loud that Tisza, after some hesitation, advised the monarch to call a general election. Now the unthinkable happened: in January 1905 the government went to the country with a safe majority and arrived back in parliament with a minority. This was a unique event in the history of Hungary and Eastern Europe before 1990.

104 On 5 February 1903 (Képv. napló, XI, pp. 210–11). Andrássy’s arguments centred on the requirements of the Monarchy’s great power status. 105 On 21 February 1903 (Képv. napló, XII, pp. 116–23); Tisza’s speech was subjected to vigorous heckling by the House’s opposition. 106 The practice of obstrukció could be regarded as the parliamentary form of the medieval ius resistendi which in 1905 was combined with the vis inertiae of the counties. 107 Other parliaments, including the British, had to face similar problems in dealing with fĳilibustering. aristocracy, gentry and parliamentary tradition 337

As everyone expected, the monarch now turned to Andrássy: he was designated Minister President in February for three weeks, but was never appointed. In the new House, in which the Independence Party, led by Ferenc Kossuth and Apponyi, was the largest, no majority could be created without substantial army concessions by the monarch. Andrássy underwent a change: instead of withdrawing he began pressing the monarch for army concessions.108 Franz Joseph dug his heels in. He turned away from Andrássy and eventually appointed a caretaker government, headed by Baron Fejérváry, which lacked parliamentary support. For the fĳirst time since 1867, the government was not a bufffer: the conflict between king and parliament was laid bare- as it had been between the crown and the ország before the age of modern constitutionalism. In earlier times the aristocracy had been an independent factor of power; the open conflict in 1905 merely forced Andrássy and the aristocrats one way or the other. While the crisis was simmering it was still possible to see in the independent national aristocracy the force which, when necessary, could mediate between the two sides. This expectation turned out to be an illusion after the 1905 general elections. Like everyone else the national aristocrats had either to withdraw or to choose between the two sides. Andrássy chose the gentry parliament. He turned out to be a most efffective organizer of the ‘resistance’ against the ‘unconstitutional’ Fejérvary government. The crisis gradually transformed Andrássy’s ideas on the constitution. The face-to-face contest between ‘the crown and the nation’ brought forth the issue of parliamentary government. The dualistic political responsibility of the government (equally towards king and parliament) worked only as long as a majority could be found in the House which shared the king’s views on Hungary’s constitutional rights. This majority temporarily disappeared. What could earlier be left unclear was now exposed. It was no longer enough to remind the politicians and the public, as Andrássy had been doing for years, of the need to maintain balance and harmony. A balanced constitution is inherently unstable.109 When Andrássy was

108 Andrássy’s new attitude of demanding concessions from the monarch did not change even after the constitutional crisis was over. As a minister of the crown, Andrássy went on begging the monarch for army concessions after 1906. Several passages in his unpublished Napló, held in the Library of the School of Slavonic and East European Studies (University of London), reveal this attitude. 109 As nineteenth-century liberals argued, like John Stuart Mill in chapter fĳive of his Representative Government (1861), there was a balance in every constitution but there was no balanced constitution which was a stable form of government. In vol. II of his 338 CHAPTER NINE forced to take sides, he found himself in the company of gentry Forty- eighters who, in order to deepen Hungary’s separation from Austria, tried to tip the balance between the crown’s and the parliament’s control of the government in the latter’s favour. The House asked the king in its address sent in May to exercise his prerogative through the appointment of ‘a responsible government such as would have the House’s confĳidence and whose programme would secure the House’s support’.110 At the tumultuous sitting of 21 June the House’s majority, including Andrássy, carried Kossuth’s motion of no confĳidence in the caretaker Cabinet, headed by Baron Fejérváry, on the grounds that the appointment was ‘incompatible with the parliamentary form of government’.111 Andrássy defended the House’s June resolutions in four articles published in the Budapesti Hirlap, the main organ of the Coalition of the parties.112 Law III of 1848, he argued, had established parliamentary government and after 1867 Cabinets had always had to have the support of the House’s majority to survive. The Fejérváry Cabinet, which had no chance of acquiring parliamentary support, was unlawful; ‘we must use all permissible means to obstruct its work’.113 Andrássy set out these and other points in his motion, submitted to the House on IQ October 1905, which was carried nem. con. in the same sitting: a protest against parliament’s repeated prorogation by the monarch.114

Emlékiratai (after 1918) even Apponyi dearly recognized that under Franz Joseph parliament did not yet possess the fĳinal authority on policy (pp. 85–86). 110 Képv. irom, I, pp. 33 and 100; the address was sent to the monarch (via Minister President Tisza) on 11 May after a long debate (Képv. napló, I pp. 126–269). The chairman of the Address Committee was Baron Dezső Bánfffy, its rapporteur, Count Tivadar Batthyány, the fĳirst draft was prepared by Apponyi: all were aristocrats. 111 On 21 June 1905 (Képv. napló, I, pp.466 and 468). A royal rescript prorogued parliament till 15 September. The House, instead of closing the session forthwith (the long established practice), held a debate over the rescript and, on Baron Bánfffy’s motion, declared the prorogation of parliament before the granting of supply, as well as the whole system of administration which the government was to introduce, to be unlawful and unconstitutional. The resolution asked the counties not to co-operate with the government (Képv. napló, I, pp. 469–75). The Andrássy group supported the resolution (p. 470). The House of Magnates also carried a motion of no confĳidence in the Cabinet on the same day. 112 ‘A kormány törvényessége’, issues of 22 and 23 July, and ‘A parlamentáris kormányzat’, 12 and 13 August 1905. 113 This was the concluding point of the second article. The third article was a polemic with Bertalan Lányi, the Minister of Justice, over Dicey’s views on the British parliamentary system. Andrássy insisted that Law III of 1848 established the political as well as the legal responsibility of the Cabinet which, therefore, must be parliamentary. In the last of the four articles Andrássy considered the question of lawful ways through which the counties’ resistance to the Fejéváry ministry should be organized. 114 Képv. napló, II, pp. 13–18 and pp. 22–23. aristocracy, gentry and parliamentary tradition 339

Andrássy’s and the Coalition’s position, an example of constitutional innovation by reference to pre-existing right, was criticized by Győző Concha, Professor of Politics in the Law Faculty of Budapest University, in the Budapesti Szemle.115 Concha argued that the legislator in 1848 was primarily concerned with the creation of, ‘independent’ rather than ‘responsible’ government and that Law III of 1848 had established legal rather than political responsibility. He also reasoned that the political responsibility of the government was, wherever established, an informal convention rather than a legal institution.116 In Hungary, where between 1867 and 1905 one party was continuously in power, these conventions had not yet developed; the properly appointed Fejérváry Cabinet was therefore a lawful government in spite of the vote of no confĳidence by parliament.117 But Concha was sceptical about the government’s chances of remaining lawful for very long and he probably held the establishment of parliamentary government to be desirable in Hungary. Concha’s colleague, Gyula Kautz,118 in the same periodical, made similar points to Concha’s,119 except that he did not think that the introduction of parliamentary government in Hungary was desirable, or at least not just yet.120 The Coalition’s predictable rejoinder to Concha’s and Kautz’s attacks came from the Roman Catholic journalist Beta Tillmann.121 Tillmann’s essay was published at the gravest moment in the crisis: after the ‘forced’ dissolution of parliament on 19 February 1906 and before there were any signs that the Coalition might take offfĳice on the king’s terms.122 Andrássy wrote the preface to Tillmann’s work, reiterating his arguments on majority rule and concluding on the point that the independence of Hungary as a state would be in jeopardy if Fejérváry’s ‘system’ were to be recognized

115 Győző Concha, ‘Jogi intézmény-e a parlamenti kormány?’, Budapesti Szemle, 1905, pp. 402–43. 116 Ibid., pp. 409, 413 and 422 fff. (on the French and the British political systems). 117 Ibid., pp. 441–43. 118 Gyula Kautz had a distinguished political, as well as academic, career and became a member of the Upper House in 1886. 119 A parlamentarizmus és különösen a parlamentáris kormányalkat, in Budapesti Szemle, 1906 and separately Budapest, 1906, pp. 1–85. 120 Ibid., pp. 76–79; Kautz argued that neither its social nor its political conditions made Hungary ready for the parliamentary form of government. 121 A Roman Catholic priest and editor of the daily, Alkotmány, Tillmann soon mag- yarized his name to Turi. 122 Elrendeli-e az 1848: III. t.-czikk a parlamenti kormányt?, Budapest, 1906. The date of the preface is 28 March 1906. 340 CHAPTER NINE as lawful government.123 The system was the Coalition’s codeword for government by edict. There existed a real threat that the crown’s government would introduce general sufffrage by octroi and that the discredited balanced constitution based on refractory representatives of the noble society would be replaced by a (tame) people’s parliament. This threat, not aristocratic mediation, turned out to be the efffective solvent of the 1905 constitutional crisis. The Coalition climbed down: it accepted offfĳice largely on the king’s terms in April 1906.124 A temporary truce rather than a proper settlement, the crisis flared up once more in 1909. Political stability was restored by Tisza’s 1912 parliamentary-coup which forced through the two army expansion bills (pending for ten years!) by the revision of the House’s Standing Orders. Tisza’s coup blocked the door for any future attempt to introduce parliamentary government. Arguably, the support that Andrássy, the Sixty-Sevener aristocrat, and his group lent to the Forty-eighter gentry parliament prolonged the crisis.

Conclusions

An examination of the attitudes of those aristocrats who were actively involved in politics refutes the view that the magnate class wielded decisive political power. The fact that aristocrats were in a leading position in most political movements of any consequence can be misleading. It may not mean more than that aristocrats were held in an elevated social position. We ought to ask where, in what issues, were the separate interests and attitudes of the aristocracy successfully asserted against gentry attitudes and interests. There could not be many. For the examination of at least some of the important political issues suggests that, in instances of conflict between the two segments of the political élite, the gentry arguably had the upper hand and won most of the battles. The gentry certainly left a stronger imprint on Hungarian politics than the magnates. The former rather than the latter set the parliamentary agenda. The character of

123 Ibid., p. 8. The debate on the parliamentary system went on during, and even after, the collapse of the Coalition Cabinet. See, for instance, József Kun’s, Mihály Réz’s and István Tisza’s articles in the Magyar Figyelő after 1910, and also the more theoretical monograph by László Buza, A miniszterek jogi felelőssége, Budapest, 1911. 124 Because parliament was dissolved in mid-February, without the pact and the appointment of the Wekerle government Franz Joseph could not have called together the new parliament within the statutory limits and this failure would have knocked out the cornerstone of the 1848 constitution, which had stipulated that the new parliament (after elections) had to commence its fĳirst session within three months (Section 5, Law IV of 1848). aristocracy, gentry and parliamentary tradition 341 politics was largely shaped by politicians with a gentry outlook. The unre- mitting dominance of the constitutional issue, which kept Hungarian politics potentially on a collision course with the crown and Austria, speaks for the strength of the separatist gentry’s attitudes. The refusal to go to the Reichsrat in the 1860s, economic separation from Austria in the 1870s and after, as well as the army demands, were all gentry policies. This is not to say, however, that, instead of the magnates, the gentry wielded the decisive political power. For the aristocracy was still a largely independent social force in the early twentieth century.125 The gentry as a class were much less so. The well-to-do gentry of the Liberal Party were not re-elected without massive support from the administrative machinery. Reports in the late nineteenth century about economic decay, social ‘decadence’ and debauchery in the gentry class were too numerous to be disregarded.126 Notwithstanding Lakatos’s view to the contrary, the gentry politician’s connection with ownership of land became tenuous in the late nineteenth century. How much land, if any, was owned by the szolga- bírós who were brought in the House in large numbers by Kálmán Tisza as Minister of the Interior at the 1875 general election? What was the proportion of the landed gentry to the ‘bureaucratic gentry’ in the ‘mameluk’127 army of the Liberal Party? Before systematic research can answer these questions one may surmise that, in parliamentary terms, until at least 1875 the government depended on the gentry, and after Kálmán Tisza had perfected ‘the system’ (clientelism based on the county bureaucrats), the gentry became dependent on the government. The articulate landowner Zoltán Lippay observed on the eve of World War I that the gentry was ‘exclusive’ without being independent: ‘Fifty years ago the gentry was an administrator [in the county] fĳirst and producer second; today he is gentry fĳirst and producer last’128—perhaps not much more than the grin that remained after the Cheshire cat had disappeared. Arguably, during the half century that preceded the First World War the political influence of both sections of the country’s élite (and also

125 Nevertheless two-thirds of the government party aristocrats with ‘nationality constituencies’ had to rely on strong government support at elections (cf. note 57). 126 Zoltán Lippay, op. cit., pp. 22, 156; Péter Hanák, Etudes historiques hongroises, I, Budapest, 1985, pp. 417–20; Viola Finn, ‘Zsigmond Justh: In Search of a new Nobility’, in László Péter and Robert B. Pynsent (eds), Intellectuals and the Future in the Habsburg Monarchy 1890–1914, London, 1988, pp. 132, 138fff. 127 MPs entirely dependent on the government, see C. A. Macartney, The Habsburg Empire 1790–1818, London, 1968, p. 694; and see note 51 above. 128 Zoltán Lippay, op. cit., pp. 153 fff. 342 CHAPTER NINE that of the Roman Catholic Church)129 diminished without any substantial increase of the new urban social groups’ political influence. If so, the benefĳiciary of this change was the state machinery which had, in general, loosened its links with the country’s independent social centres of power. It appears that social classes exercised substantial influence on government policy as long as, and to the extent that, they had remained ‘feudal’, and that the alternative to the power of the noble landowning élite was not the ascendancy of the bourgeoisie but that of the hivatalállam, the east European authoritarian state. I have looked at Hungary’s political élite in conjunction with the political issues from a parliamentary perspective. Political issues, however, shed only limited light on this subject. The character of the Hungarian landowning élite could be better explored through prosopography.130 The parliamentary level should be complemented at the local level by studies on the relationship between land-tenure, the kinship system and local power. The study of the nineteenth-century political élite—Concha called it the országló nemzettest131—would be incomplete without a study of the magyar intelligencia and the birtokosság: the Hungarian educated classes and the landowners who formed the local élite in the countryside.

(1992)

129 There is a striking analogy here with the diminishing independence of the Roman Catholic Church, which had been partly liberated by the 1855 Concordat from the Erastian policies that had been pursued by the government ever since Joseph II, only to face the far greater danger of the overweening authority of the state after 1867 (cf. László Péter, ‘Hungarian Liberals’, in op. cit., p. 120). 130 A pioneer work is Károly Vörös’s on the composition of the Upper House before and after the 1885 reform, referred to in note 8. 131 That is, ‘the ruling nation-body’ (Győző Concha, Hatvan év tudományos mozgalmai között, Budapest, 1935, II, p. 570). CHAPTER TEN

LAW XLIV OF 1868 ‘ON THE EQUALITY OF NATIONALITY RIGHTS’ AND THE LANGUAGE OF LOCAL ADMINISTRATION

More has been written on the 1868 Law concerning nationality rights than on any other aspect of Dualist Hungary’s legislation. Historians have discussed the making of the 1868 Law as a story of conflict, which it was, between the House of Representatives’ Hungarian majority and the radical representatives of the nationalities over the recognition of ‘nationality’ by law. There is within that story another story however, to which not enough attention has been paid so far, although it sheds light on the story of conflict. During the course of drafting the bill on nationality rights the House’s Hungarian majority changed its views on the language provisions of local administration (counties and royal free towns). Ever since the Law on nationality rights was enacted, opinion concerning its character has—in Hungary as much as elsewhere—been sharply divided. R. W. Seton-Watson and other champions of minority rights thought that the Law was flawed by its contradictory principles and ambiguities.1 The American historian, Arthur May described it as ‘one of the most enlightened measures of its kind ever adopted.’2 These conflicting assessments can be partly reconciled, once the two principles on which the provisions of the Law are based are scrutinised. After 1867 the quality of legislation was sometimes poor because measures hastily drafted by the ministers of the Andrássy cabinet were rushed through parliament, but Law XLIV of 1868 was not an example of this. By April 1866 the House had sent out a committee to prepare a bill; yet, after many drafts, parliament dealt with the subject only towards the end of its term in November 1868. The crowded parliamentary timetable in 1867–68 may partly account for the slow pace at which the legislation progressed. But the Hungarian liberal parliamentarians—the Opposition as much as the Deák party—were dilatory, and had plenty of reasons for being so. Firstly, they were afraid of the nationality question—a subject too

1 Scotus Viator, Racial Problems in Hungary, London, 1908, p. 148. 2 A. J. May, The Hapsburg Monarchy, 1867–1914, Mass., 1965, p. 83. 344 CHAPTER TEN dangerous to tackle.3 Secondly, the leaders of the Deák party had tactical reasons: they bargained fĳirst with their strongest opponent, the crown, then with the strongest of the remainder, Croatia, and fĳinally with the politically weakest, the nationalities. More important than either of these two reasons was, however, that they did not quite know what to do. They hesitated and prevaricated because their ideas were contradictory and they wished to have it both ways. The liberal politicians of the government and of the Opposition insisted on the principle of the unitary state which led them to assert that all the citizens of Hungary formed, in the political sense, a single nation—in fact the single nation and the unitary state were cognates. But leading liberals also cherished the ideal of equality of religious and nationality rights4 which they sometimes understood as (1) equality before the law, at other times as (2) the recognition of religious, language and nationality rights exercised by individuals and, again, as (3) the recognition and equality of established churches and, in some sense, of the nationalities as language groups. Knowing that equality of nationality rights could not, in all the three senses, be realised to the full if it were also assumed that the entire population belonged to a single political nation, liberals were vacillating over which of the two principles ought to come fĳirst. József Eötvös, minister for religion and public education, Pál Nyáry, a leading fĳigure of the Opposition, and a minority among the members of the House were inclined to treat equality of nationality rights as the rule and what the unitary state required as the exception. Ferencz Deák and the majority, on the other hand, preferred to start from the requirements of the unitary

3 This fear was not new: Hungarian liberals were very reluctant to pronounce on the nationality question in 1861. This is implicitly denied by many historians who argue that, because of its early dissolution, parliament could not squeeze in a debate on the nationality question. But the report of the House Committee on the nationality question (see below) was submitted on 9 August, parliament was dissolved by the monarch on the 21st and the House held only two short sittings (both on the same day) between these two dates. 4 The closely related terms ‘equality of rights’ (egyenjogúság, a loan-translation of Gleichberechtigung), ‘equality before the law’ (törvény előtti egyenlőség) and ‘legal equality’ (jogegyenlőség, a loan-translation of Rechtsgleicheit) were fairly consistently distinguished in Hungarian usage in the last century. Legal equality primarily associated the removal of legal diffferences based on privileges, between individuals in the 1840s. The context of the equality before the law was court proceedings. Equality of rights (the term did not come into use until after 1848) associated the idea of the individual (or group) being authorised to do something. The principle of single nation—one language, cherished by Hungarian liberals before 1848, was compatible with equality before the law and also with legal equality; it was not compatible with equality of rights—as the term was understood after 1848. ‘on the equality of nationality rights’ 345 state: they wished to declare the single-nation principle before they defĳined the areas to which equality of rights applied. In the end they agreed on the latter course, put more emphasis on the fĳirst sense, quali- fĳied the use of the second and unambiguously excluded the third sense in which equality of nationality rights could be claimed. Yet it was the last of the three senses the political conflict in parliament was about. All national movements long to acquire a political roof of some kind over their heads. In 1867–68 out of the 402 members who represented Hungary and Transylvania in the House some 60 could be regarded as representing non-Hungarian nationalities. The leaders of the Serb, Romanian, Saxon and Slovak deputies demanded from parliament that each nationality, as a group, should be legally recognised as equal to the Hungarian, i.e. those who spoke Magyar. The issue was that of territorial autonomy. Against Hungarian insistence on the single nation, which supported the unitary state claim, the nationalities demanded the recognition of equal rights in order to claim autonomous territories. This demand clashed head on with the single Hungarian nation principle, especially because ‘Hungarian’ was never (and being the same word, Magyar, could not be) distinguished from the other sense of ‘Hungarian’, the Magyar speakers as a nationality. A nation, recognised, was entitled to territory; a nationality, unrecognised, was not. As the Hungarian liberals, with the exception of the Croats, denied territorial autonomy to the non-Hungarians, they reserved for them the term ‘nationality’; more or less consistently after 1868. When in the debate it became clear that parliament did not intend to recognise and, therefore, devolve territorial autonomy to the nationalities, their most articulate representatives, bitterly disappointed, neglected the opportunity to secure the optimal provisions of language rights which would have still been compatible with the principles on which the Hungarians insisted. The conflict over the single political nation had existed from the 1840s, when the liberals assumed dominance in Hungarian politics; it was not just a sequel to the 1867 Settlement. Kossuth, Deák, Eötvös, and later the Conservatives, moderate empire-men and radical independents, asserted that the political unity of Hungary, based on indefensible historic right, required that all the inhabitants of the country, irrespective of social status, religion or language, should form one political nation. In 1848 the country was torn by civil war in the South because of that principle. Yet after Világos it was not abandoned and was clearly reasserted in the 1861 Report of the House’s committee on the nationality question which was influenced by Eötvös ideas. 346 CHAPTER TEN

But the liberals were prepared to learn from the bloody conflicts of 1848–49 and throughout the 1860s were committed to a policy of reconciliation with the non-Hungarians. Eötvös believed in equality of nationality rights out of deep philosophical convictions: national movements, he held, could not be suppressed and, if properly harnessed, would serve social progress. Deák believed in the equitable treatment of nationality rights out of tolerance, sound common sense and also out of duty to honour his word given to the monarch. For Hungarian liberals had to respond to political pressure from the Empire. Ever since the March Constitution of 1849 the principle of Gleichbere- chtigung had been played out by Vienna against the historic right claims of the Hungarian liberals. Individuals’ language rights, in relations with the public authorities and in education, envisaged by the October Diploma of 1860, and government policy during the provisorium, exerted considerable moral pressure on Hungarian liberals. Moreover, in the course of the dialogue with the crown during the 1861 parliament, the monarch demanded and parliament promised legislation. Thus Hungarian policy to reach a constitutional settlement with the crown required the acceptance of the equality of nationality rights. Yet, paradoxically, the policy to settle up with the Empire also hardened the single- nation claim. Deák demanded complete parity for the management of the ‘common matters’ between Hungary and the Other Lands as two equal partners. The Address draft of February 1866 declared that Hungary wished to deal with His Majesty’s Other Lands qua constitutional peoples and ‘as one free nation with another’. The veteran Serb leader, Djordje Stratimirovic, forcefully argued in the House that as there existed many nations in Hungary as much as in the Other Lands the text should be amended: ‘as free nations with other free nations’. Deák cautiously responded that, whether the singular or the plural was used, the point was that the two sides should bargain with each other only as free and independent partners. Indeed he thought that there was ‘only one political nationality in Hungary’, but the term ‘free nation’ in his draft was no more than an analogy; the subject of the nationalities’ position would, at any rate, be discussed on another occasion. Deák’s explanation did not satisfy non-Hungarian members. The issue of whether the nationalities should be ‘recognised’ was now on the agenda and the House sent out a committee to draft a bill to ‘guarantee the interests of the non-Hungarian nationalities’. The fĳirst draft of the Committee’s subcommittee became public, after the Settlement had been concluded, in June 1867. The bill’s guiding ‘on the equality of nationality rights’ 347 principle, according to the subcommittee report, was ‘the equality of nationality rights of the peoples inhabiting the country’. The purpose, the report went on, was to enable the communities ‘to make use of their nationality claims right up to the line that has unavoidably to be drawn by the country’s political unity, that is its territorial integrity, unitary legislation and state administration’. The bill, which closely followed the scheme adopted by the 1861 report, was technically a poor attempt at drafting. It listed language rights on the village, parish, county (county), town and ‘state administration’ level. Parliament was to determine the level of subsidies to schools and to cultural associations which the nationalities had a right to form (Sections 22 and 23). The general principles were less clear. Whereas the 1861 report had been contradictory because it had asserted the unitary Hungarian political nation principle and, without any explanation, had recognised the nationalities as bodies, the 1867 bill did neither. Although the bill’s title was: ‘On the Equality of the Rights of the Nationalities’, the chapter headings used the weaker term, ‘nationality rights’, while the clauses to which they referred concerned mostly individual language rights. Section 12, incidentally, mentioned ‘the offfĳicial state language’ and Section 18 declared ‘Hungarian’ to be the language of ‘state administration’. The last paragraph shed some light on the bill’s conception of national equality: ‘The equality of rights of the country’s every nationality, determined in the paragraphs above, is thereby declared to be a fundamental law.’ The bill fell between two stools. It did not satisfy the leaders of the nationalities because it was largely concerned with individual language rights (i.e. what has been distinguished as the second sense of equality) rather than with the legal recognition of the nationalities as groups (the third sense). At the same time, the bill alarmed the gentry of the counties and the towns (the so called ‘municipalities’) in nationally mixed districts: §10 of the draft allowed the majority of the Assembly in each county and town to determine the language of administration. The language of local administration had been for decades a key question in Hungarian politics. One could not select a better topic to illustrate the changing fortunes of the Hungarian liberals than the changing regulations of the county’s offfĳicial language. After decades of agitation for the right of Hungarian to replace Latin, Law VI of 1840 established Hungarian as compulsory for all the ‘correspondence’ of the counties in Hungary proper. The April Laws (Section 2e Law XVI of 1848) stipulated Hungarian as the sole language of county meetings. This rule was to apply to Transylvania in addition to Hungary proper. The Resolution of the 348 CHAPTER TEN

National Assembly on the nationalities, made in Szeged in July 1849, allowed, in addition to Hungarian, the use of other languages at meetings and for the minutes to be drawn up in a second language, wherever the majority was non-Hungarian. After Világos German became the offfĳicial (internal) language of the new, imposed administration. In 1860 the counties were restored with Hungarian as the offfĳicial language. The 1861 report of the House’s committee on the nationality question would have allowed the Annual Meeting of each municipality to determine its own ‘internal’ language. In his confĳidential talks with Baron Augusz in December 1864 Deák thought that the majority should determine the offfĳicial language in each county. After the constitution had come into force in February 1867, parliament authorised the government to restore the powers of the counties and it suspended Section 2(e) Law XVI of 1848, pending further legislation on the nationality question, ‘in order to forestall misunder- standings and anxieties which would only hinder an equitable solution’. The government order went out before the coronation. The sub-committee’s draft bill, published a few weeks after the coronation, was ‘greeted with a storm of vehement protest’ in the Hungarian press and in petitions sent by municipalities and associations to parliament. The county gentry feared that the language reform would weaken the national character of the Hungarian state and ‘the mood’ in the House changed. Deák himself alluded to this change later. From the summer of 1867 the resolution of the nationality question by an Act of parliament was for the majority an unpopular and tiresome, though unavoidable, obligation which in the midst of hectic legislation on so many other subjects was, predictably, put on the back burner. In late October 1868 the bill, revised, fĳinally emerged from the Committee whose membership meanwhile had changed. The individual language rights became restricted, but by far the most important change in the bill was the restoration of Hungarian, the language of the state, as a blanket rule in the municipalities (counties and towns). The minutes of the Assembly could also be drawn up in any other language if desired by one fĳifth of the voters. The Committee erased expressions from the bill which could be construed to involve the legal recognition of the nationalities. The title, ‘On the Equality of the Rights of the Nationalities’, was changed to ‘On the Equality of Nationality Rights’. The chapter headings disappeared; the Law was no longer to be ‘fundamental’ and an added Preamble declared both the equality of the citizen’s language rights and the political unity of the country. The bill, more palatable to the political tastes of the House’s majority, was referred to the Central Committee of ‘on the equality of nationality rights’ 349 the House and was redrafted once more; it arrived back in the House within a fortnight. The changes were partly technical, partly of substance. The new Preamble blurred the conflict between the equality of rights principle and that of the country’s political and administrative unity. The bill still lacked cohesion, however, and on 24: November, the fĳirst day of its general debate, which lasted for fĳive days, Deák, encouraged by members of his own party and of the Left Centre, introduced in the House his own draft bill.5 In contrast to the Committee bill which, coming after the two earlier drafts, had set out the language rights in local government fĳirst and then moved upwards, Deák’s bill began with the language of parliament (a subject neglected in the earlier drafts) and of central government, and then moved down to the commune. The bill acquired cohesion, internal consistency and was harmonised with other laws (concerning Croatia, for instance) by the inclusion of new paragraphs and, even more, by the link established now between the clauses and the reworked new Preamble. Deák turned the table on his opponents by extracting from the principles they cherished what Deák himself wished to afffĳirm; he solved the constitutional conflict by teasing out all the ország rights he had wished to secure from the Pragmatic Sanction and, in a similar fashion, tackled the nationality question in the bill’s Preamble, by grafting the single unitary nation on to the equality of rights principle. The familiar passage ran: Whereas all citizens of Hungary, according to the basic principles of the constitution, form, in the political sense, a single nation, the indivisible unitary Hungarian nation of which every citizen of the fatherland, to whatever nationality he may belong, is a member with equal rights; and whereas this equality of rights could be restricted by special rules concerning only the offfĳicial use of the country’s various languages and only in so far as is neces- sitated by the unity of the country, by the feasibility of government and administration and by the proper dispensing of justice; while the complete equality of rights of the fatherland’s citizens is afffĳirmed to remain in every other respect intact, the following rules shall serve as the norm for the offfĳi- cial use of various languages. The fĳirst paragraph of the bill, then, logically inferred from ‘the political unity of the nation’ that the language of the state, and therefore of

5 It is widely believed about the drafting of the Law that Deák submitted an amendment which tagged a preamble onto the bill which had been essentially drafted by Eötvös. This assessment contains three errors: (1) Deák presented a bill, not an amendment to the House; (2) he revised the preamble which the earlier drafts had already provided and (3) there is no evidence that Eötvös had at any stage been involved in the drafting of the bill. 350 CHAPTER TEN

legislation and of central government, had to be Hungarian; Sections 2–6 dealt with the municipalities followed by the rest of the provisions. Deák’s speech had a strong impact on Hungarian deputies but the shift of emphasis his bill carried out did not afffect the parliamentary conflict which was about the ‘recognition’ of the nationalities denied to them by the Committee’s draft as much as by Deáks’s. The conflict existed between the two Hungarian drafts, on the one hand, and the minority bill on the other. The latter was submitted together with the Committee bill to the House on 28 October. The minority bill, the joint draft of Romanian and Serb deputies signed by three members of the Committee, ‘recognised’ all the ‘nations’ of Hungary, including the Hungarian, as equal. Alexandru Mocioni (Sándor Mocsonyi), a Romanian deputy, speaking to the minority bill, and others from his side of the House, supported the political unity of the country, Hungarian leadership and Hungarian as the offfĳicial state language. Mocioni was even prepared to accept that all citizens formed one political nation. If however—he argued—equality of rights meant anything, each nation also should be recognised within the single political nation; language rights for persons were not enough. The county boundaries should be adjusted to coincide with language so that each nation would have its own territory. The Hungarian response was uniform in denying ‘recognition’ and territorial autonomy. György Bartal, a leading politician and an old hand on the subject, said that concessions to the nationalities, (one or two of which gravitated towards their kinsmen outside Hungary) which could not satisfy their aspirations, would debilitate Hungary and lead to its disintegration. In that context, more than once, he alluded to the Russian (Pan-Slav) danger. But Bartal also believed, passionately, in the equality of language rights and in the freedom to develop the mother tongue through independent schools and cultural associations. The state, he argued, should not support any particular nationality—not even Hungarian. The Slavs and the Romanians need not be afraid: Hungarians did not wish to assimilate them. In a powerful speech made on the second day of the debate Eötvös bore down on the minority bill: if the counties were handed over to single nationalities to dominate, as Mocioni and others proposed, neither personal freedom nor the interests of the nationalities could be secured. The change would be a move from the terrain of freedom and competition of ideas back to the ‘ramparts of privileges’. What would be the fate of the minorities which would be sizeable even after the county boundaries were redrawn? The lifelong opponent of the county system was ‘on the equality of nationality rights’ 351

rapturously applauded by the House’s (municipalist!) majority when he scofffed at the idea of ‘depositing nationalities, as mummies rolled into legislation in the municipal crypt’. But, replied Iosif Hodoşiu, a Romanian, it was not the minority’s bill but the majority’s which discriminated between citizens and which created privileges by compelling all those wishing to be eligible for public offfĳice to learn Hungarian. The debate was hotting up on its third day; heckling began on the part of county gentry deputies and the Chair was losing its impartiality. There was no clean split in the House along sectarian line however. Quite a few representatives of the nationalities were speaking for the majority’s or Deák’s draft. The Serbian leader Miletic, in a most impressive speech, spoke for the minority bill: the examples of Switzerland and Belgium demonstrated the fallacy of the view that there could be only one political nation in the state. The nationalities should be recognised through the nationalisatio of the municipalities, the counties and towns with redrawn boundaries, which however need not mean the denationalisatio of minorities within. Nor would the reform be a fĳirst step towards Hungary’s disintegration, as Bartal and Eötvös had feared. On the contrary, the traditionally wide powers of the municipalities, ‘the bastions of constitutional liberty’, would fĳirmly tie all nationalities to the country and would even exercise attraction towards their kinsmen living beyond the borders. In an age, said Miletic, in which the desire to unify compels large nations, like the Germans under Bismarck, to throw away liberalism, Hungary’s mission should be to unite the small nations against autocracy. This could be accomplished if the state remained largely in the hands of the Hungarians and the nationalities, where they were in a majority, would be satisfĳied through the municipal institutions. The idea of Hungarians leading eastern Europe’s small nations and sharing power with them in the counties was a non-starter: the populist implications of the minority bill scared the wits out of the county gentry. Many were prepared to connive at the non-Hungarian intelligentsia’s hanging on to their municipal posts wherever they had already been fĳirmly established. None wished to give any opportunity, however, for a political plan to turn the municipalities into battlegrounds for domination by a ‘majority’, either non-Hungarian or, indeed, Hungarian. If the language of the county was left to a majority, the social power of the gentry could have been challenged from below, by one or another nationality, in over half of the country’s counties in which, beneath the landed gentry and gentry intelligentsia, the peasantry was either predominantly non- Hungarian or heavily mixed. This potential challenge touched on the very 352 CHAPTER TEN existence of Hungarian as the country’s gentry-led dominant nationality.6 Rather than giving hostages to the future, any lingering doubt about Hungarian, the language of the state, being the offfĳicial language in every single county had to be obliterated. Deák’s bill was winning support in the House over the Committee bill because it helped to remove all those lingering doubts. In his bill the presumption of the law was decisively shifted away from the principle of the equality of rights towards that of the language of the state. It followed from the Preamble’s unitary nation principle that Hungarian had to be the language of the state and this rule, applied to parliament and the ministry in the fĳirst paragraphs, was from the second paragraph onwards applied to the municipalities. Deák moved up the four paragraphs concerning county language, which had been tucked away in the middle of the Committee bill, to follow on §1. The gentry understood the promulgation of the Hungarian unitary nation as insurance against any future relaxation on the principle that the county’s and the royal free towns’ offfĳi- cial language had to be Hungarian. For any tinkering with that principle moved uncomfortably close to the idea of power sharing with the nationalities’ intelligentsias. Deák admitted, repeatedly, in the House that in drafting his bill he was responding to political pressure and that he found a few provisions in the Committee bill too restrictive towards non-Hungarian languages. Here and there he reduced some of the restrictions. Nevertheless, an ‘essential point’ in his bill, he emphasised, was that ‘as regards the internal language of the counties I have accepted the Central Committee draft which is better than any of our earlier drafts’. Eötvös changed his views as well. After the conclusion of the debate, just before voting began at the 28 November sitting, Eötvös suddenly arose to declare his support for Deák’s bill because, he said, it had expressed the same principles as the Committee’s. Indeed it had, except that it reversed the presumption of the law of the earlier drafts. More important was that some time before his speech on 25 November, Eötvös had accepted, like Deák, the change to Hungarian as the offfĳicial language for all of the counties. Neither Deák nor Eötvös, however, could be criticised for going back on commitments made in public. (Deák’s talks with Baron Augusz in 1864–65 were private

6 Lajos Mocsáry, the stout-hearted defender of nationality rights, criticised the Committee bill, in the House on 11 November 1868, as too restrictive. He attacked more vigorously the minority draft, submitted by the leaders of the nationalities, as a plan which ‘amounts to the breaking up of Hungary’. ‘on the equality of nationality rights’ 353 and confĳidential). They could even claim that the county and the town language clauses of the Law were necessary to implement the principles they had always professed: the equality of nationality rights in its fĳirst and second senses. Also, it is clear that the shift in Deák’s and Eötvös’ views did not exacerbate the conflict between the House’s Hungarian majority and the nationalities’ radical representatives. It is still perplexing, however, why Deák’s bill wiped the Committee bill clean of any support in the House. When the President put the Central Committee bill to the vote—a (unique?) procedural freak in the history of the Hungarian parliament—‘not a single deputy rose’ (even members of the Committee remained fĳirmly seated).7 What happened after is better known. The minority bill was voted on next. ‘Twenty members demanded a roll call which revealed the limited appeal of that draft even among the nationalities’ sixty deputies: twenty-four voted for, 267 voted against and 113 were absent. ‘The radical Romanian members left the Chamber’— states the parliamentary journal.8 The House then accepted Deák’s bill by rising. The result, greeted with cheers, was a shining example of his states- manship in constructing something that many others would have loved to have done themselves, but could not. The clauses went through at one short sitting. In the end, the equality of nationality rights principle was largely pared down to language rights conferred on the individual. But Law XLIV of 1868 was still a tolerant and broadminded measure in many respects. The individual had the right to speak in his mother tongue in the county Assembly whose minutes could be drawn up in ‘second languages’ in addition to the state language. The citizen determined the language of correspondence between himself and the state authorities at every level of administration; he had the right to a trial in his mother tongue in the courts of fĳirst instance. The language of administration in the commune was decided by the majority but, again, the individual had the right to use his own language, if it was diffferent, at meetings and in correspondence with the offfĳi- cials. The Law contained provisions concerning the appointment of offfĳicials, from among the nationalities, ‘who possessed the necessary

7 Incidentally, the bill which passed into the Statute book belonged to those few which were not the government’s. 8 On the following day they were back and before the clauses of the bill were taken, after short protests delivered by Mocioni and Miletic, twenty-four deputies marched out for the second time. But the boycotting of parliament (which later became a frequently repeated story in publications abroad) did not date from that time. Mocioni and Miletic were active members of the next parliament. 354 CHAPTER TEN knowledge of languages’; without however committing anybody to do anything in particular. The liberal spirit of the Law showed in the provisions on religion, education and culture. The right of citizens, communes, churches and associations to establish schools and form cultural and economic societies to serve under state supervision ‘the lawful needs of the nationalities’ in any language was afffĳirmed. Also, §17 declared it to be the duty of the government to provide primary and secondary education ‘so far as possible’ in the mother tongue. It would be difffĳicult to object to Law XLIV of 1868 as contrary to liberal principles; nor could the claim be rejected, as R. W. Seton-Watson did,9 that the measure carried into the lawbook the equal rights of nationality principle. The critical fact, however, was that this principle could be, and was, understood in three diffferent ways in the 1860’s. Hungarian and non- Hungarian politicians seeking support from the same principle were at cross-purposes. The former insisted that in securing the country’s administrative as well as political unity, they were merely following the examples of France and England where liberals had built centralised states. Some centralisation of political power was undoubtedly a prerequisite of liberal politics in most, but not in all, places, But Hungary, being polyglot, did not fĳit the general pattern and liberals there, obsessed with historic rights, were blind to the point. When they were reminded that in Cisleithania next-door, administrative centralisation was not being pursued by liberals, they could retort that it was only because the German element, being relatively weak there, was unsuccessful. Hungarian liberals could be blamed for their failure to invent principles which liberals in the West did not profess and, at least in France and in England, did not need. This failure, the product of their nationalism, meant that they were short sighted; it did not however make them less liberal.

9 R .W. Seton-Watson wrote that ‘from a strictly legal standpoint the title of this law is a misnomer’, but he translated the title as ‘Law of Equal Rights of the Nationalities’ which from a strictly textual standpoint is a mistranslation. CHAPTER ELEVEN

THE ARMY QUESTION IN HUNGARIAN POLITICS 1867–19181

‘I wish one could, but obviously one cannot, remake the whole world on a Hungarian cobbler’s last.’ Baron Géza Fejérváry, Minister of National Defence Forty-Eighter hecklers: ‘Yes, we can and we shall!’ (1903 in the House)

The Constitutional Question

The army question was a part of constitutional politics that has to be explained. When Franz Joseph dissolved the Hungarian parliament on December 10, 1868, Ferencz Deák and the majority in the House of Repre- sentatives could look back with satisfaction on the preceding three years. Deák and his party had reached a constitutional settlement with the crown that had been enacted as Act XII of 1867. Through the Settlement Hungary, with which Transylvania and Croatia were united, had acquired internal self-government and limited influence in imperial afffairs. The government was headed by the imaginative and entertaining Count Gyula Andrássy, a charmer whom Deák called the ‘providential man’2 because he possessed the rare quality of being equally acceptable to Vienna and to his own country. The government and its parliamentary supporters hoped that, with the Settlement out of the way, concerns about Hungary’s position within the Empire would lose their hold over politics. This hope was never fulfĳilled. The constitutional question,közjogi kérdés (question of public law) acquired paramount importance, becoming almost an obsession in public life. Driven by nationalism, it was concerned with the extent to which Hungary had rights to legal independence, which was the critical aspiration. Debates on Hungary’s constitutional

1 I am indebted to my readers, Robert Evans, Robert Pynsent, Martyn Rady and Angus Walker. They have removed much from the text that was not clear and improved it in other respects. A number of sections of this paper are taken from an earlier publication in German that is referred to in note 6. 2 Manó Kónyi, Deák Ferencz beszédei (hereafter: DFB), IV, Budapest 1897, p. 328. 356 chapter eleven rights took up an inordinately large amount of parliamentary time from the beginning to the end (1918) of the Dualist era. Conflicting views on accepting or rejecting the 1867 Settlement reflected politicians’ aspirations to improve Hungary’s legal position in the Monarchy. This conflict dominated proceedings in the House of Representatives and divided the House more than any other political question. For long periods, the constitutional question eclipsed all else. Furthermore, divisions on other matters were more frequently than not influenced by divisions on the constitutional question rather than vice versa. The drawn-out conflict over the ‘nationalization’ of the counties, franchise reform and the nationality question are the most evident examples. Unsurprisingly, therefore, the constitutional question provided the basis on which parties were formed and re-formed in parliament.3 The defenders of the 1867 Settlement were almost invariably the party that supported the government in parliament (the Deák or, after 1875, the Liberal Party). Opposition parties criticized the Settlement or its implementation on political or rejected it on constitutional grounds. Again, it was the degree of opposition to the 1867 Settlement as well as the nature and the extent of the demands for revision or repeal that provided the basis of party division within the opposition. Those groups that accepted in principle the 1867 Settlement, and were thus regierungsfähig (the Moderate Opposition after 1878, the National Party after 1892, and also the ‘Liberal Dissidents’), represented the middle ground between the ‘Government Party’, as it was called, and the groups that rejected the 1867 Settlement on constitutional grounds. These last groups (the Left Centre before 1874; the Extreme Left, the 1848 Party after 1868, the Left and the Independence Party from 1874, later the 1848 and Independence Party) were not regierungsfähig in the eyes of the monarch. They demanded that the 1867 Settlement be repealed and the laws of 1848 reinstated in integrum, a change which, in their view, would have severed all institutional links with the ‘Other Lands’ of the Monarchy, save the monarch himself. This was the demand for a so-called ‘pure personal union’.4 An analysis of

3 The classic description of the party structure by Gusztáv Gratz, A dualizmus kora, 2, Budapest 1934, (hereafter Dualizmus), I, pp. 24–31. The party programs were published by Gyula Mérei (ed.), Magyar politikai pártprogrammok 1867–1914 (hereafter: Mérei, Pártprogr.), Budapest 1934, pp. 241–363. 4 The claim (to which many Hungarian historians are still wedded) that the Laws of 1848 established ‘personal union’ with the rest of the Monarchy is pure fĳiction. It was a home rule of sorts that the Laws granted Hungary. The 1867 constitutional Settlement, legally speaking, was not a ‘compromise’; it secured wider rights for Hungary than the 1848 the army question in hungarian politics 1867-1918 357 the several dozen political crises that took place between 1867 and 1918 would likewise reveal the remarkable hold constitutional questions had over Hungarian politics. Arguably, twelve out of the twenty cabinet crises of the Dualist era that eventually led to the appointment of a new prime minister concerned the constitution.5 Moreover, the protracted crisis of 1905–06 that shook the Dualist system, and indeed the Monarchy as a whole, was a constitutional crisis. The truth about the 1867 Settlement was that, apart from the fĳirst few years, political support for it in the country was weak: it did not fully meet Hungarian national aspirations. At the same time, any substantial improvement on Deák’s Settlement in Hungary’s favour had to confront superior forces beyond the River Leitha: the monarch, his Army and the public. Hence the intractability of this nationalist conflict, at least under constitutional government, and the indestructibility of the constitutional question.6

The Army Question and the Constitution

The constitutional and the army questions were intertwined, something that, under Marxist influence, has not received due emphasis from historians since the Second World War. In fact, the army question formed the hard core of the constitutional discourse. This was largely because the Hungarian constitution was dualistic: the central structural feature of the political institutions had been for centuries the division between the customary rights of the crown, in which the royal offfĳice was vested, and those of the noble ország, exercised by the landowners, the autonomous counties and the diet. Crown and ország as two depositories of rights functioned side by side in conflicts and accommodation. The monarch possessed wide reservata, which covered imperial afffairs, the Army, external relations and other matters over which, before 1867, the ország had no influence. On the other hand, the monarch was duty bound to maintain the customary rights of the ország, as a Land, intact. For Hungary, the

Laws. See László Péter, ‘Old Hats and Closet Revisionists: Reflections on Domokos Kosáry’s Latest Work on the 1848 Hungarian Revolution’, SEER, 80, 2002, 2, pp. 296–319 (305–08, 318–19). 5 The cabinets of Andrássy, Bittó, Wenckheim, K. Tisza, Szapáry, Széll, Khuen-Héderváry (1903), Fejérváry, Wekerle (1906), Khuen-Héderváry (1910), Lukács, Károlyi. 6 László Péter, ‘Die Verfassungsentwicklung in Ungarn’. In Helmut Rumpler and Peter Urbanitsch (eds), Die Habsburgermonarchie 1848–1918, vol. VII, Vienna, (hereafter: Péter, ‘Verfassungsentwicklung’), pp. 239–540 (504–07). 358 chapter eleven outcome of this system was a mixed or balanced constitution. Accordingly, the crown entered into negotiations with the ország at its diet over the terms on which Hungary paid tax and offfered soldiers to the monarch. The diet did not control supply but it used in the negotiations, the diaetalis tractatus, the monarch’s promises to right grievances (gravamina) and satisfy desiderata (postulata) as bargaining counters. The diet frequently disputed whether the royal propositiones, requesting tax and soldiers, or the ország grievances should be dealt with fĳirst. In sum, the right to grant soldiers served as a constitutional lever that maintained a balance of sorts between the crown and the ország. These medieval Hungarian institutions in the other Lands of the Monarchy, where they had existed at all, became etiolated shells. From this perspective Hungary was always separate, indeed independent of the rest of the Empire: a monarchic union of Lands rather than a single State. In the course of the nineteenth century questions concerning the Army became the centrepiece of the diaetalis tractatus, known as the constitutional question. This is not quite obvious because of historians’ tenacious reluctance to distinguish between two kinds of ‘dualism’: one being the reciprocal connexions between the Habsburg crown and the ország, manifested in the tractatus, the other being the dualism, so called, between the Other Lands of the Monarchy and Hungary. The former dualism concerned the mixed government, the binary structure of authority, called Doppelpoligkeit in Central Europe, based on medieval customary rights; the latter, largely unregulated before 1867, by virtue of Law XII 1867, became, at least formally, contractual. The dualistic crown-ország relations were, nevertheless, through the reservata of the common crown, based on the Pragmatic Sanction, indirectly connected Hungary with ‘Austria’. In fact, by the sixteenth century they formed a monarchic union of Lands. As we shall see, Hungarian constitutional innovations between 1867 and 1918 gradually crept up on the earlier dualistic structures. Parliament laid claim to the monarch’s reservata; also it denied that Hungary had ever been a part of the monarchic union of Lands. This was indeed an uncharted (and, in general, unacknowledged) tectonic shift in the Hungarian view of their position in the Monarchy. In this process of deliberate radical mental transformation, one could not overstate the efffect of the 1848 revolution. The Independence War of 1848–49, when Kossuth and Görgey organized a honvéd army that took on the Austrian and the Russian military, was emblematic in creating a new Hungarian identity and aspirations. ‘Forty-eight’ outlasted ‘Sixty-seven’— Deák’s Settlement, condemned by faint praise as a ‘Compromise’. After the system of representative government was permanently established in the army question in hungarian politics 1867-1918 359

1867, political authority still remained dualistic. The authority of parliament was greatly enhanced, yet government did not become parliamentary in its proper sense of being the ultimate source of authority in legislation. The system of mixed government survived. Power was shared between the crown and parliament, a precarious and shifting balance, as the history of the army question amply demonstrates.

The 1867 Constitutional Settlement and the Army

The 1867 Settlement itself was driven by the military demands of the Empire’s great-power status. The introduction of universal liability to military service for males was necessary for the maintenance of the Empire’s international position. It would have been difffĳicult to introduce this reform without a settlement with Hungary. Deák and Andrássy did not possess the political clout to impose a constitutional settlement on an unwilling monarch, but they did have something indispensable to political success: good luck. The following took place. The disaster the French army inflicted on the Monarchy at Solferino in June 1859 forced Franz Joseph to abandon autocratic government because it could no longer be affforded. Autocracy borrowed to fĳinance itself and its unwillingness to control its expenditure led to the exhaustion of its credit. Since there was no public check on expenditure, foreign banks were ever less willing to help out Austria. Franz Joseph now reintroduced representative bodies. This was not a response to pressure from the ‘German’ Liberals or Hungarian or Slav nationalists, and the primary aim was not to satisfy the demands of this or that social class or nationality. Constitutional experi- mentation was necessary because of the demand of the fĳinancial houses in western Europe that government expenditure should be publicly accountable. Accountability could be achieved only through constitutional control of fĳinance. The bankers launched a press campaign demanding the reform of government and this put life in the liberals and the nationalists of the Monarchy. The monarch now revived a dormant institution, the Reichsrat, which the 1860 October Diploma turned into a representative body. The budget could still, however, not be balanced: there was a large defĳicit each year between 1861 and 1864. The German Liberals, who dominated the Reichsrat, forced cuts in army expenditure. The generals complained that they were denied the means of running an efffective army. Then came the war with Prussia. In the autumn of 1864 it became clear to Franz Joseph 360 chapter eleven that, unless Bismarck were stopped by force, Prussia would achieve supremacy in Germany. Ever since 1861, the German Liberals in the Reichsrat were cutting military expenditure. The monarch needed a political lever against the German Liberals to strengthen the Army so that Austria was able to endure a war with Prussia. Deák understood this. In his Easter 1865 article, he clearly stated: ‘we are always prepared to har- monize our laws, through legislation, to guarantee the Empire’s secure existence.’7 What attracted Franz Joseph to the idea of a constitutional settlement with the Hungarians was that they provided him with a counterweight to the German Liberals. Faced by an aggressive Prussia, Franz Joseph was prepared to exchange greater Hungarian autonomy against Hungarian support for military expenditure. This support persisted throughout the Dualist era. Hungarian parliamentarians, unlike many in the Reichsrat, did not oppose army expansion as such, even during the crisis years after 1902. (They had to pay less than their Austrian partner for it.) Parliament used its support for army expansion, however, as a trade-offf to gain recognition of the national identity of the Army’s Hungarian units. Paradoxically perhaps, Hungarian aspirations proved, in the long run, more damaging to the Army’s efffectiveness than the parsi- mony of the Reichsrat. Arguments about the status of the Army are the main vehicle for Hungarian nationalism after 1867. One ought not assume, however, that other aspects of constitutional politics were of secondary importance. Common foreign afffairs and the monarch’s household attracted only temporary interest. But the economic side of the relationship, and particularly the decennial negotiations of the Customs and Commercial Union, like the army question, were contentious throughout the Dualist era.8 However, the political motive for change in the economy was ambivalent. Strong economic interests favouring, for example, the maintenance of the common tarifff system competed with the desire to achieve economic independence from Austria. By contrast, arguments for the existing common rather than a separate Hungarian national army, although sound, secured insufffĳicient support in the country. Moreover, the Settlement Law put economic subjects and the Army under diffferent regimes. The former were ‘public matters of great

7 DFB, III, p. 408. 8 For a comprehensive treatment of the economic Ausgleich, see Friedrich Gottas, Ungarn im Zeitalter des Hochliberalismus, Studien zur Tisza-Ära (1875–1890), Vienna, 1976 (hereafter: Gottas, Ungarn), pp. 75–161. the army question in hungarian politics 1867-1918 361

importance’ to be handled jointly with the other half of the Empire on political grounds rather than on account of legal obligation. Hungary retained the right to contract out of any or all of them, save state debts, if agreement with the Other Lands could not be secured.9 Because obstacles to changes in economic relationships had little to do with the Settlement Law itself and because the Law’s economic provisions were more or less straightforward, the scope for constitutional politics here was limited. This was not the case in army matters. There the provisions were complex and, in contrast to economic subjects, the country’s obligations were derived from the Pragmatic Sanction. In army matters the rights of the ország, Hungary as the contracting legal partner of the crown, were restricted while those of the monarch were wide and ‘recognized’ rather than defĳined by the Settlement Law. Yet the monarch’s rights were counterbalanced by ország rights, again recognized rather than defĳined. By and large, control over the Army remained reserved (reservata) to the crown, the emperor-king, and as such united for the Monarchy as a whole; the raising of the Army continued, however, to be a shared right (communicata) and required the separate consent of the Hungarian parliament.10 These principles provided ample material for constitutional debate. Indeed, more than any other aspect of the Settlement, it was the army provisions of Law XII of 1867 and the implementing instruments that became the growth points of the constitution.11 Three laws reforming the Army were put through parliament in 1868, the texts of which were practically identical with the laws passed by the Reichsrat for Cisleithania.12 Law XL on the system of defence introduced

9 See Péter, ‘Verfassungsentwicklung’, pp. 326–27. 10 Ibid., pp. 323–25. 11 The House’s proceedings concerning the implementing instruments of the Settlement in 1867 and 1868 revealed basic attitudes. The debate over the bill on the state debt was long, even though the government had an impressive two-to-one majority (229 for, 110 against) on December 15 1867, Az országgyűlés képviselőházának naplója (hereafter: Képv. napló), vol. vi, pp. 150–52. The House showed only limited interest in discussing the bill on the Customs Union. At the close of the general debate on December 17 1867 the vote was taken by rising and the paragraphs had to be held over to the following sitting because the House lost its quorum (of the 402 members only 105 were present), ibid., p. 204. In sharp contrast, interest in the three defence bills was strong and the debate in the House prolonged. But in the end, the government, with Deák’s fĳirm support, won easily. At the most important vote, held on August 4 1868, of the 281 members present 235 voted for, 43 against, and 2 abstained, with 120 absent; ibid., vol. ix, pp. 424–26. 12 See Edmund Bernatzik, Die österreichischen Verfassungsgesetze, Vienna, 1911 (hereafter: Bernatzik, Die öst. Verfassungsges.), pp. 688–704; ‘Die k.(u.)k. Armee — Gliederung und Aufgabenstellung’ in Rumpler and Urbanitsch (eds), Die Habsburgermonarchie 1848– 1918, v, pp. 489–91; see Éva Somogyi’s introductory essay and the minutes of the six 362 chapter eleven general conscription, a major reform which had strong support in parliament. Universal military service was seen as following from the principle of civil society based on rights and duties applied equally to all.13 The Law determined the war-time establishment of the Army and fĳixed the annual contingent of recruits, shared between the two parts of the Monarchy, for ten years. A critical innovation for the maintenance of constitutional balance between crown and ország was the provision that enlistment had to be agreed annually by parliament.14 Law XLI created the honvédség, a second-line force on which the Hungarians insisted, which, in 1867, Franz Joseph had agreed to set up and which the military and the Austrian politicians took some time to accept.15 Organized separately from the Army, administratively under the Hungarian Ministry of Defence, the honvédség was a national army substitute. Like the Landwehr in Cisleithania, which had to be set up because of the principle of parity in the Dualist system, it was an (expen- sive) auxiliary force, and without artillery not yet entirely fĳit for front-line duty alongside the Army. The honvédség took the oath to the ‘Supreme Commander’ (not quite the ‘king’) and to the laws of the country; its personnel, flag, language of service and of command were Hungarian and Croatian. All in all, the Law treated the honvédség as a subject that constitutionally belonged to the shared rather than the reserved monarchic rights. The third instrument, Law XLII of 1868, on the general levy in time of war (and under threat of war) did not attract much constitutional interest.

imperial (common) ministerial council meetings in Die Protokolle des gemeinsamen Ministerrates des österreichisch-ungarischen Monarchie 1867–1870, Budapest, 1999, pp. xxxi–xxxviii, p. 10 et passim. 13 See László Péter, ‘The Holy Crown of Hungary, Visible and Invisible’, p. 55 above. 14 Section 13 Law XL of 1868, cf. Section 12 Law XII of 1867 which stipulated: ‘from time to time’ rather than ‘annually’. Andrássy’s conflicts with the military establishment over the reforms agreed in 1868 centred on the acceptance of the division of army rights reached at the Hungarian Settlement rather than, as has been suggested by G. E. Rothenberg, on some further Hungarian army demands. See Rothenberg, ‘Toward a National Hungarian Army’, The Slavic Review, 1972, p. 808, and the same author’s The Army of Francis Joseph, West Lafayette, IN, 1976 (hereafter Rothenberg, The Army), pp. 75–78. The Hungarian army demands made after 1902 should not be read into the conflicts that had preceded the enactments of the three defence laws of 1868. 15 On the creation of the honvédség and Andrássy’s difffĳiculties in negotiating with the military leaders, see Tibor Papp, ‘Die königliche ungarische Landwehr (honvéd) 1868–1914’, in Adam Wandruszka and Peter Urbanitsch (eds), Die Habsburgermonarchie 1848–1918, vol. v, Vienna 1987, pp. 637f. the army question in hungarian politics 1867-1918 363

After the 1867 Settlement

It was the visible presence of the imperial or common Army in Hungary that kept the constitutional question alive. The Imperial Army (later renamed Imperial and Royal), quartered in Hungary, was a multinational army that included the Hungarian regiments. It was largely led by German and German-speaking offfĳicers. The Army, including its Hungarian units, were subordinated to the Ministry of War in Vienna rather than to the Hungarian government in Budapest. The maintenance of a large, repressive military force under ‘German’ leadership in the country, over which the Hungarian government had only limited control would have been a source of conflict under normal circumstances, even without its ‘peace- keeping’ role at elections and its role in enforcing labour contracts during the harvest. The sensitive question of relations between the civilian population and the ‘alien’ Army, and the incidents of conflict between soldiers and civilians were a constant headache for the government, and a target easily exploited by the opponents of the Settlement.16 Yet these ‘incidents’, important though they must have been, do not provide a sufffĳicient explanation of the role the army question played in Hungarian politics. The cause does not seem to be commensurate with the efffect. Furthermore, it is not clear what is cause and what efffect. We can only surmise how far the incidents created the army question and how far the already existing army question produced the incidents. Some disafffection with the Settlement manifested itself in Hungary as early as 1867, and undoubtedly the provisions concerning the common Imperial Army were felt to be the least desirable part of it.17 The Army quartered in Hungary was involved in conflict, so-called ‘incidents’, between civilians and troops and relations between the offfĳicers and society was tense.18 In the fĳirst decade after 1867 the Army and the honvédség produced lively and occasionally long exchanges in the House, especially

16 Gábor Vermes set out many of the arguments on both sides and described the incidents in his ‘Hungary and the Common Army in the Austro-Hungarian Monarchy’, in S. B. Vardy and A. H. Vardy (eds), Society and Change, Studies in Honor of Béla K. Király, New York, 1983, pp. 89–101. 17 Péter Hanák describes the mutual antipathy between the Army and the Hungarian population as the ‘Achilles tendon’ of the Dualist system, ‘Die Stellung Ungarns in der Monarchie’, in Friedrich Engel-Jánosi and Helmut Rumpler (eds), Probleme der franzisko- josephinischen Zeit 1848–1916, Munich, 1967, p. 90. 18 On the conflicts between the Army and the civilian population, see Tibor Hajdu, Tisztikar és középosztály, Budapest, 1999 (hereafter: Hajdu, Tisztikar), esp. Ch. 3; see also note 15 above. 364 chapter eleven in the Address and budget debates. These frequently centred on practical questions and were conducted on political rather than constitutional lines by Tisza’s Left Centre Party, although before 1875 it had not accepted the 1867 constitutional basis. It was a widely shared aspiration on both sides of the House that the honvédség should become a fĳirst-line military force.19 It was also hoped that the proportion of Hungarian offfĳicers in the Army would increase so that it would become truly ‘common’.20 The hope that the spirit of the Army would not be ‘anti-Hungarian’ was not con- fĳined to the government benches. There was some agitation for Hungarian cadet schools and for the establishment of a Hungarian military academy.21 The constitutional arguments of the Forty-eighters for a Hungarian national army had not as yet made a strong impact on the House. After the 1875 party realignment, the economic Ausgleich and the consequences of the occupation of Bosnia moved to the foreground of constitutional politics. The smouldering discontent with the common Army stationed in Hungary erupted only in the 1880s.22 From that time onwards, the army question dominated Hungarian politics for well over two decades—even in the 1890s when one after another attempt to distract public interest from it failed.

The Army Question and Apponyi

The dominance of the army question coincided with, and largely explains, the rise of Count Albert Apponyi, a supporter of the 1867 Settlement. The party structure in the House of Representatives resolves the paradox that a Sixty-sevener brought the army question into prominence. The Independentist groups, so called Forty-eighters, as devoted followers of Kossuth, rejected all common institutions, demanded a separate

19 The development of the honvédség was hampered by fĳinancial stringency and by the refusal of the imperial military to equip them with artillery and other technology. 20 The term ‘common Army’ appeared for the fĳirst time in the implementing clause, Section 14, of Law XX of 1873 on army horses (which also refers to the ‘common Minister of War’) and then in the title of Law LI of 1875 on army pensions. It went into general use in the Hungarian statutes. What was a ‘concession’ by the monarch in the 1870s was bemoaned later by jurists like Károly Kmety, who pointed out that the term had not been used in the Settlement Law or in the 1868 army laws; Kmety, Közjog, Budapest, 1911, p. 507 n. 2. 21 The plan for a Hungarian military academy, in fact an aspiration since 1790, was soon shelved for decades and the proportion of Hungarian offfĳicers in the Army did not notice- ably improve in the 1870s. 22 From the beginning of the 1880s, the number of reported ‘army incidents’ in the country greatly increased (civilian insults, flag violations, the Hentzi and Gotterhalte incidents, and so forth). the army question in hungarian politics 1867-1918 365

Hungarian army and recognized only a personal union with Austria. They were led by Daniel Irányi, Ignácz Helfy, Kossuth’s confĳidant, and Ernő Simonyi, members of the entourage of the Great Exile, who returned to Hungary after the Settlement. The Forty-eighters had a growing appeal in the Hungarian districts that sent independent gentry to the House.23 Yet they had no chance to form a government. Since they did not recognize the 1867 Settlement, the monarch regarded them as nicht regierungsfähig. A party of protest, the Independentists did not even aim to gain offfĳice. Apponyi came from a diffferent political world. The son of György Apponyi, Chancellor before 1848 and arch-enemy of Kossuth, he was educated by Jesuits in Vienna and joined the erstwhile Conservative Sennyey group that supported the government, when in 1872 he acquired a seat in the House. He had plenty in his ‘schwarz-gelb’ background to live down. After decay set in within the Deák party, a party realignment took place. The Left Centre put their constitutional opposition to the Settlement into ‘cold storage’24 and merged with the governing majority to form the Liberal Party in 1875. For fĳifteen years Kálmán Tisza was the undisputed leader of the Sixty-sevener majority. A brilliant tactician and debater in the House, Tisza was a master of ad hoc arrangements and not carrying out any political programme. In 1878, the former Conservatives split away and were later joined by dissatisfĳied Liberals to form the United Opposition and reformed themselves as the Moderate Opposition in 1881 under the joint leadership of Apponyi and Dezső Szilágyi. A liberal law professor and a loner, a Rottweiler let loose on the House, Szilágyi’s sheer intellectual force in recasting Hungarian constitutional law elevated him to the top rank. Yet Apponyi always had the edge on him.25 Apponyi’s impressive bearing, modulated voice, and his often passionate oratory ensured the charismatic appeal of this political Don Quixote and ensures it even today in Hungary.26

23 See the statistical analysis of Ernő Lakatos, A magyar politikai vezetőréteg 1848–1918, Budapest, 1942 (hereafter A m. vezetőréteg), pp. 52, 55–56. 24 The much used derisive phrase by Forty-eighters that Tisza szögre akasztotta (hung on a peg) the ‘Bihar points’ (that is, the party programme) was never uttered by Tisza himself, Gyula Oláh, Az 1875-ik évi fuzió története, Budapest, 1908, pp. 292–93. 25 But, after 1878, Apponyi came under the influence of Szilágyi, which he acknowledged on many occasions, see his Emlékirataim, vol. i, Budapest, 1922, pp. 141–43. Whereas Szilágyi, Apponyi argued, was satisfĳied with asserting the principle of state independence, his own aim was the realization of the principle. After 1886, when the two men parted company, Szilágyi claimed that Apponyi had never really understood him. 26 Not, however, outside Hungary. His political attitudes were described by C. A. Macartney, who otherwise liked him, as ‘incurably unadult’, The Habsburg Empire 1790– 1918, London 1968, p. 761. In Hungary the literature on Apponyi is hagiographic. 366 chapter eleven

Once formed, the new group looked like a political refugee camp rather than a party with a coherent political programme, yet many a politician hoped that it would break the hold of the constitutional question on Hungarian politics, for it unambiguously recognized the Settlement and was therefore regierungsfähig in the eyes of the monarch. And yet, as if it had been the iron law of Hungarian politics, a few years after the party realignment, politics was back where it had been: the forces in parliament were largely separated by diffferent attitudes to the Settlement. Apponyi’s conversion to constitutional politics was gradual. After 1875, his concerns were the economic Ausgleich with Austria, the cutting of army expenditure and the request that ‘the Hungarian element should make greater headway in the common Army’27—all respectable Sixty- sevener political rather than constitutional questions. During the Eastern Crisis, however, Apponyi gave strong support to Szilágyi’s constitutional politics. A new tone was audible in the 1881 election Manifesto of the Moderate Opposition that complained that Tisza’s policies undermined public confĳidence in the Settlement and that national grievances had built up because of the government’s ‘negligence in the enforcement of guarantees gained in the Settlement and the perversion of its spirit’.28 In the 1884 Manifesto this became the central contention against ‘the governmental system’ (which ‘perverted and threatened the basis of public law’).29 Nevertheless Szilágyi remained a fĳirm Sixty-sevener and resigned from his party, leaving Apponyi its sole leader. Barely a fortnight after Szilágyi’s resignation in March 1886, Apponyi30 introduced his most characteristic constitutional innovation, later to be termed the idea of the ‘dormant rights’ or ‘advancement’ of the Settlement. He told the House that the country had expected Tisza, because of his past in the opposition, to develop the institutions in a national direction on the basis of what the Settlement had already secured ‘in embryonic form’. Whereas the government party had done nothing, his party wanted to use the Settlement to ‘build up our national institutions and inject the

27 Election manifesto of the United Opposition (under Apponyi and Szilágyi’s leadership), April 13 1878, Mérei, Pártprogr., pp. 251–54. 28 March 23, 1881, ibid., pp. 254–58. 29 April 10 1884. The criticism became specifĳic: the government had allowed the competence of the common ministry to be widened (this was a reference to the administration of Bosnia) and made control over it by the Delegations illusory (a reference to a debate in May 1882 on defence costs in relation to Bosnia), ibid., p. 258. 30 Szilágyi resigned on March 21 and Apponyi made his speech on March 24 in the course of the debate on the administration bill which at one point developed into a general debate on government policy. the army question in hungarian politics 1867-1918 367 national spirit into the common institutions’.31 This idea that combined the ‘recognition’ of the Settlement, a sine qua non for remaining regierungsfähig , with the promise to fulfĳil national aspirations turned out to be the thin end of the wedge that eventually shattered majority support for Deák’s work from within the Sixty-sevener camp. But this danger looked remote in 1886. In practical terms, the ‘revival’ (felélesztés) of ‘dormant’ rights meant for Apponyi only the modest aim of creating a Hungarian military academy, which the government, too, had been (unsuccessfully) pressing for. Events pushed Apponyi to spell out his full constitutional doctrine in October in the Jansky Afffair debate in the House.32 On May 21 1886 Ludwig Jansky, a brigadier general, commander of a regiment stationed in Hungary, laid a wreath on General Hentzi’s tomb in Buda Castle where Hentzi had fallen in 1849 defending it against Görgey’s army (for decades the wreath-laying was an annual event, together with an appropriate speech). On this occasion, the press and the public found the ceremony offfensive. The Hungarian government called Jansky’s action tactless, but the war ministry (in Vienna) put the Hungarian commander of the army corps in Budapest on the retirement list and promoted Jansky. This provoked serious disturbances in the streets of Budapest and parliament received floods of petitions that demanded legislation for a separate Hungarian army. The monarch sent a friendly rescript to Tisza to help his government.33 Apponyi had a fĳield day in the House. First, he made it clear that his party held no truck with the Forty- eighters who demanded the splitting of the Army. Then he quoted from Franz Joseph’s rescript, sent earlier to reduce tension in the country: ‘the spirit of the Army could not be diffferent from that of its supreme commander.’ Apponyi turned round the monarch’s dictum: ‘The supreme commander, however, is no other than the crowned constitutional king of Hungary and therefore the spirit of the Army cannot be diffferent from that of the constitutional king.’34 This was, he went on, indeed a ‘postulate to be translated into life’, which meant ‘the unconditional recognition of Hungary as a sovereign State’ by His Majesty’s coronation oath and by his

31 On March 24 1886, Képv. napló, x, p. 313. Apponyi considered that the speech had been a benchmark in his political career, Emlékirataim, i, pp. 140–43. 32 Gratz, Dualizmus, i, pp. 244–46. See also Vilmos Heiszler ‘A Jansky-ügy’, in András Gerő (ed.), Skandallum; Magyar közéleti botrányok 1843–1991, Budapest, 1993, pp. 76–91 (a useful account in which, however, the author managed to go through the story without even mentioning Apponyi). 33 Gratz, Dualizmus, i, p. 245. 34 October 11, 1886, Képv. napló, xiii, pp. 188–89. 368 chapter eleven sanctioning of Law XII of 1867. This was so much the essence of Hungarian constitutionalism that it was not even necessary to produce further evidence. And it followed that the constitutive factors of the Hungarian State (i.e. king and parliament) possessed unlimited sovereignty over every aspect of state life—including defence. The Army was an institution operated in common with the Other Lands of the Monarchy not because it had been created by a legal source over and above Hungarian state sovereignty, ‘but because the sovereign legislation of the Hungarian State found it appropriate, in agreement with the legislature of the Monarchy’s other State [that is, the Other Lands], to create this common institution’. This was the spirit of the Hungarian constitution with which the common Army should be in harmony. Then came a sideswipe at the idea, har- boured by some people in Cisleithania, that there existed an österreichis- cher Gesamtstaat, before Apponyi made a further claim. Law XII of 1867 ‘by which the legislature consented to the maintenance of a united common Army, but did not envisage the Hungarian units’ complete loss of individuality within it, for the Law clearly refers to the Hungarian army as a complementary part of the entire Army’. He proposed that the government initiate the measures by which the spirit of Law XII of 1867 was realized in ‘creating solidarity between the nation and the Army’.35 Apponyi used a sledge hammer to crack a nut and what he demanded, in practical terms, was not very clear. Yet his ‘postulate’ (the term is a throwback to the postulata of the old constitution) was innovative: never before had a Sixty-sevener politician spelled out in the House the doctrine of the unlimited sovereign power to make statute law. While Apponyi was speaking the government benches were silent but, a year after Apponyi’s speech, in 1887, the fĳirst textbook of the dogmatic law school by Ernő Nagy, ‘the Hungarian Laband’ appeared.36 A follower of Paul Laband, professor at Strasbourg, leading jurist of the German Empire, Nagy turned away from the historical method in favour of the analytical. In fact, Nagy’s textbook was written in a conceptual frame similar to Apponyi’s and the claim to ‘legislative sovereignty’, like the claim to ‘organic development’, became buzzwords in constitutional discourse. National desiderata concerning the Army were from that time onwards supported by the

35 Ibid., p. 192. The phrase ‘complemetary part of the entire Army’ was in Section 11 of 1867 XII, its German translation was, however, ‘als integrierenden Teiles des gesamten Heeres’; Ivan Žolger, Der staatsrechtliche Ausgleich zwischen Österreich und Ungarn, Leipzig, 1911, p. 116. 36 Péter, ‘Verfassungsentwicklung’, pp. 396–98. the army question in hungarian politics 1867-1918 369 presumption of legislative sovereignty as an attribute of the legally independent Hungarian State.

The Watershed: The 1889 Great Defence Debate

It has been widely recognized that the parliamentary debate on the system of defence in the fĳirst three months of 1889 was a turning point in the history of the Dualist system. Indeed, the debate did not merely destroy Kálmán Tisza’s fĳifteen years’ unchallenged leadership; it transformed politics. Until 1889, the conflicts in the Monarchy could still be regarded as political and temporary;37 after 1889, they were increasingly recognized as structural and permanent. In Cisleithania, generals and politicians were apprehensive lest there were a drift towards an Armee auf Kündigung, which raised the spectre of Monarchie auf Kündigung. In Hungary the habitually optimistic liberal, Gusztáv Beksics, wrote that ‘after 1889 Hungarian politics became a territory of volcanic eruptions’.38 In the interwar period Gusztáv Gratz, a leading minister in retirement, lamented the ‘fateful efffect of perturbed political conditions’ that had arisen out of the debate in 188939 and Apponyi wrote that this was when the Sixty-seven system virtually ‘collapsed’.40 However, we fĳind neither in the contemporary accounts nor in the historical literature any reference to the fact that an indispensable part of the conflict over the system of defence in 1889 was the new constitutional outlook that had emerged in the immediately preceding years. The new outlook was based on the rejection of the idea that Hungary was a part of the Empire as a monarchic union of Lands and on the presumption that Hungary was, by virtue of the 1867 Settlement, a legally independent State. This new claim, shared between Sixty-seveners and Forty-eighters, transformed the outlook of the political class as a whole and made the

37 Gusztáv Beksics, a leading Liberal publicist, argued in 1883 that the nation no longer had constitutional conflicts, Kemény Zsigmond, a forradalom s a kiegyezés, Budapest, 1883, p. 289; a few years later, he changed his mind. 38 Beksics, who died in May 1906, wrote these lines after the April Pact had been made; he hoped that things were once more improving; see his posthumous A Szabadelvűpárt története, Budapest, 1907, p. 8; Gottas, Ungarn, pp. 72–74. The movement among university students and the street demonstrators are described by Dániel Szabó, ‘A véderőtüntetések résztvevői’, Korall, 2004, 17, September, pp. 43–60; Hajdu, Tisztikar, pp. 94–97 (good details on incidents). 39 Gratz, Dualizmus, i, p. 407. 40 Emlékirataim, i, p. 169, and repeated in ii, p. 26. 370 chapter eleven conflicts over the Army unavoidable. Thus the spectacular clash of political wills in 1889 had little to do with the Settlement that Deák made with Franz Joseph and much more with the claim to state sovereignty that in the second half of the 1880s was read into Deák’s work. Two major objections were raised in the House against the Defence Bill that, after revisions, became Law VI of 1889, and the new constitutional outlook was involved in both. Section 14 of the Bill, obscurely drafted, could be construed as amounting to the weakening of Hungary’s right to negotiate the number of recruits raised decennially.41 This was the context in which Szilágyi was soon to make the claim that ‘If agreement is not reached each state retains its freedom of action’.42 (The Szilágyi thesis was clearly in conflict with Deák’s constitutionalism, a contract between crown and ország based on the Pragmatic Sanction rather than an agreement between two legally independent States.) The other objection concerned Section 25 of the Bill which imposed on the ‘one-year voluntary reserve offfĳicers’ the obligation to pass an examination in German.43 Apponyi had a fĳield day with this paragraph.44 The government had argued that Section 11, Law XII of 1867 clearly assigned the power to determine the language of the Army to the monarch, and a leading liberal45 said that the law did not give parliament any control over army language. But, argued Apponyi, the presumption of the law was on the side of parliament46 and Section 11 did not expressly assign the determination of army language to the monarch.47 The monarch had acted lawfully in accordance with the army language regulations because the other agent of legislation had chosen not to have a say in the matter in 1867. Apponyi made it clear that he did not intend to raise the question of army language. The point was, however, that the language of reserve offfĳicers’ instruction was ‘a part of the sovereign right of our state language’ rather

41 Tisza insisted for weeks that it did not, but eventually surrendered and restored a passage identical with that of Law XL of 1868 (Section 13). 42 See Péter, ‘Verfassungsentwicklung’, pp. 515–17. In Deák’s constitutional outlook, the ország had the right to bargain but also the obligation to seek agreement because of its duty to help its monarch and the Other Lands. 43 The paragraph imposed the obligation to serve a second year if the candidate failed the examination. 44 The speech was frequently interrupted by rapturous applause from his party, the Forty-eighters, and from the gallery. 45 Gyula Horváth who was about to defect and move over to Apponyi’s side. 46 March 2 1889, Képv. napló, ix, p. 178. 47 Apponyi also argued that there had been references to the language of army instruction in old statute laws which indicated that the diet had not regarded the subject as a reservata. the army question in hungarian politics 1867-1918 371 than a reserved royal right. Sovereignty was a great principle of the Hungarian constitution, which did not require further legal demonstra- tion.48 The speech confĳirmed Apponyi as the standard-bearer of Hungarian aspirations for many years to come.49 Teofĳil Fabiny, Minister of Justice, took up some of Apponyi’s points. The language of the Army, the minister insisted (amidst much heckling from the opposition), was a reserved royal right, in contrast to the language of the honvédség where the 1868 Law had expressly recognized parliament’s participation.50 He warned: ‘Just as the ország holds fast to its rights, so the monarch’s rights should be respected.’51 This was the language of the old dualist structure: the language of the past.52 Fabiny was out of offfĳice within a month, ostensibly on health grounds. Only further research could shed light on the extent to which his robust defence of the monarch’s rights embarrassed the government that had been fatally wounded in the debate. Academia clearly did not regret his departure. The doctrine of the Holy Crown was (tacitly) based on Apponyi’s ‘great principle’ and the much respected innovative constructor of this doctrine, Academician Győző Concha, referred to Fabiny’s speech as a ‘mistake’.53 A most telling outcome of the debate in parliament was that Fabiny’s successor as a Minister of Justice was none other than Szilágyi, the great beast of constitutional politics, brought into Tisza’s last administration to bolster up sagging government authority. The author of the 1893 Szilágyi thesis that Law XII of 1867 was an ‘independent creation’ of the Hungarian legislature (rather than a so-called internal state contract between partners), could never be described as poacher turned gamekeeper. Not surprisingly, Franz Joseph did his best to get rid of him at the fĳirst opportunity.

48 On March 2 1889 Képv. napló, ix, pp. 178–79 and see his speech in the Jansky Debate in 1886, see note 32 above. 49 The speech on March 2, together with his closing speech, were the most efffective of the four speeches that Apponyi made in the defence debate. 50 March 5, ibid., pp. 213–14. 51 Ibid., p. 216. On March 6, he said that his duty was ‘as much to maintain the monarch’s rights unimpaired as to guard the ország’s’, ibid., p. 249. 52 So was Gyula Andrássy’s last political speech, made in the Upper House on April 5 1889. Alarmed by the agitation in the country for an independent Hungarian army, Andrássy produced excellent political arguments for the maintenance of the common Army. Full of common sense, the speech, couched in the language and the constitutional ideas of the monarchic union of Lands, went down well in the Upper House, but the country was moving in another direction, Andrássy Gyula Gróf beszéde a véderő-törvényjavaslat tárgyában, Budapest, 1889, esp. pp. 29–31, 35–36, 64–65. 53 See Péter, ‘The Holy Crown’, p. 83 above. 372 chapter eleven

As an offfshoot of the defence debate Tisza was successful in securing the monarch’s Handschreiben of October 17, 1889 which ordained that in future the Army and navy be styled ‘imperial and royal’ (rather than ‘imperial’ or ‘imperial-royal’). The monarch’s Handschreiben of October 4, 1895 extended this change to the ‘minister of the imperial house and foreign afffairs’ which now became ‘imperial and royal’.54 These changes were not innovative. They merely carried into efffect what had been implied in the new style introduced by the monarch in November 1868.55 Although the 1889 and the 1895 documents, in contrast to that of 1868, were countersigned by the addressee, the foreign minister, they should be regarded as unilateral declarations of the monarch’s will. Franz Joseph made it clear in his 1889 Handschreiben that the alteration of the offfĳicial style was not to afffect the Einheit und Unzertrennbarkeit of the common Army and navy in the form in which, on the basis of the Pragmatic Sanction, they had been established in 1867. Clearly, these changes could hardly be seen as legally supporting Hungarian constitutional aspirations, particularly after the Great Defence Debate of 1889.56 In the 1890s, Szilágyi and Apponyi’s constitutional ideas penetrated deep into the political class and transformed its political culture. Historians are yet to recognize that from the 1890s, the three main forces of parliamentary politics, the governing Liberal party, Apponyi’s National Party57 and the Forty-eighter camp, shared a new constitutional outlook in that they all held Hungary and Austria externally as well as internally, to be legally fully sovereign States. The new claim afffected Regierungs- fähigkeit. The Forty-eighters were, as they always had been, beyond the pale because of their declared aim to abolish the institutions common with the other state. But recognition of the common institutions was no

54 See Bernatzik, Die öst. Verfassungsges, pp. 53–54; István Diószegi, Die Protokolle des gemeinsamen Ministerrates der österreichisch-ungarischen Monarchie 1883–1895, Budapest, 1993 (hereafter Diószegi, Protokolle), pp. 142–48, 467–74. In a similar vein, the Minister of War became ‘k. und k.’ in 1912 (this change, sadly, ended the marvellously demonstrative practice that the same authority which appeared as ‘Imperial’ in Cisleithania was called ‘common’ in Hungary). 55 See Péter, ‘Verfassungsentwicklung’, pp. 508–09. Based on Andrássy’s memorandum which had argued that the Monarchy’s offfĳicial style should express the ‘state interdependence’ (Zusammengehörigkeit) of the Empire’s two ‘halves’, Franz Joseph ordered in November 1868 that the (short) form of his own title be Emperor of Austria and apostolic King of Hungary. Also, he ruled that the Lands united under his sceptre should appear in offfĳicial usage as Austro-Hungarian Monarchy or Empire. 56 See Bernatzik, Die öst. Verfassungsges, p. 53; Diószegi, Protokolle, pp. 147–48. 57 On January 5, 1892 the party replaced the Moderate Opposition with the new name, Mérei, Pártprogr., pp. 261, 270. the army question in hungarian politics 1867-1918 373 longer enough for a political group to be regierungsfähig because widely diffferent claims could be inferred from the state independence of Hungary explained into Law XII of 1867.58 Hence the formula established in the negotiations with Apponyi in January 1895: for the monarch Regierungs- fähigkeit required the recognition of the Settlement ‘as it had been created as well as interpreted and implemented for twenty-eight years’.59 This requirement for holding offfĳice made for tension within the Liberal Party, for, under the spell of Szilágyi and others’ new language of politics, Liberals shared the aspiration with Apponyi’s group to establish a stronger Hungarian presence in and accentuate the Hungarian character of the regiments of Transleithania. After all, the Dualist system was based on parity between the two halves of the Monarchy, yet, even at the end of the nineteenth century, only a quarter of the army offfĳicers were from Hungary and fewer than half of these were Magyars. The strongest group in the Liberal Party headed by Count István Tisza was, however, determined to avoid any conflict with the crown. The aristocrats of the Party, led by Count Gyula Andrássy Junior, later labelled the Dissidents, were all loyal to the king. Indeed, in his book (a brilliant defence of the Sixty-seven system), Andrássy argued in 1896 that loyalty to the crown in itself was not enough: the nation should not ask anything of its king that he, as the constitutional monarch of Austria, could not secure.60 A few years later, however, Andrássy was trying unsuccessfully to mediate between the crown and parliament’s gentry majority. Apponyi and his National Party played a decisive role in the unfolding events. As the century moved to a close, without any encouragement

58 From 1892, as Mérei points out, even the Liberals included constitutional desiderata in their programmes, ibid., p. 30. 59 See, for example, Apponyi’s references to kormányképesség, Regierungsfähigkeit, Emlékirataim, i, pp. 76, 99, 108, 110, 117. After Wekerle’s resignation, Khuen-Héderváry, the king’s candidate, unsuccessfully sounded out Apponyi about a merger between his party and the Liberals. The recognition of the Settlement ‘as it had been created as well as interpreted and implemented for twenty-eight years’, was the precondition which the Liberal caucus (but not Apponyi) accepted; Ignácz Darányi in the House on January 19 1895, Képv. napló, xxii, pp. 13–14. Gábor Ugron, Forty-eighter, argued that a uniform interpretation of Law XII of 1867 had never existed (January 21), ibid., pp. 41–44. The Liberal Party, wisely, refused to give hostages to the future by including the formula in its programme. Indeed, on September 15 1903, István Tisza (not yet Prime Minister) at a party meeting (rather than in parliament) admitted that the Settlement had not yet been implemented in every respect and as one example he mentioned the promotion of the Hungarian language and the Hungarian complement in the Army. József Kun Barabási (ed.), Gróf Tisza István képviselőházi beszédei, vol. i, Budapest, 1930 (hereafter TIKB), pp. 744–46. 60 See László Péter, ‘The Aristocracy, the Gentry and Their Parliamentary Tradition in Nineteenth-Century Hungary’, p. 335 above. 374 chapter eleven from the monarch, but infatuated by the new vocabulary of the sovereign Hungarian State,61 an inexplicable optimism was generated in the gentry- led counties and in parliament that Hungarian army aspirations would be realized.62 Apponyi’s reputation was growing in the Liberal Party63 and within his own party pressure was growing to merge with the Liberals in order to get into government. In 1899, when the army question was temporarily not in the foreground, Apponyi and his group joined the Liberals and he was elected president of the House. Parliament was now set on a collision course with the crown.

The Army Crisis of 1903

After the turn of the century, the army question came back with a vengeance. The leaders of the Army, concerned that the Monarchy was rapidly falling behind other states in defence, worked out a plan to increase the annual contingent of recruits in keeping with population growth.64 The army expansion bills went through the Reichsrat only with difffĳiculty, and on the condition that Hungary also passed them.65 The two army bills introduced by the Széll ministry in November 1902 moderately raised Hungary’s defence contribution. Nevertheless, Forty-eighters demanded a quid pro quo: the introduction of Hungarian as the language of command (some seventy words) and the language of service (instruction) in all the regiments of Hungary. The pressure was now on the Liberals to press for at least some of these demands.66 When the Liberals failed to respond, the Forty-eighters began to carry out obstrukció. The urbane, afffable Kálmán Széll, after Wekerle the only Liberal prime minister with a

61 At every turn in the long crisis between 1902 and 1912, the claim to state sovereignty provided the critical argument in support of the army demands. 62 Gusztáv Beksics’s last chapter, ‘Harmincz év’, in the ten-volume ‘millenary history’, Sándor Szilágyi (ed.), A magyar nemzet története, vol. x, 1898, reflected this optimism, pp. 807–08. 63 Although the passing of Laws XXII and XXIII of 1897 which raised the Ludovica to the level of a stafff college and provided for new cadet schools and a military high school deprived Apponyi’s National Party of a large part of its army programme. 64 See Walter Wagner, ‘Die k(u)k Armee, Gliederung und Aufgabenstellung’, in Wandruszka and Urbanitsch (eds), Die Habsburgermonarchie 1848–1918, v, pp. 142–633 (493); see also the not always reliable account of the army crisis in Rothenberg, The Army, pp. 131–38. 65 Gustav Kolmer, Parlament und Verfassung in Österreich, viii, Vienna, 1914 (hereafter: Kolmer, Parlament), pp. 448–51. 66 See Péter, ‘Verfassungsentwicklung’, pp. 452–53. the army question in hungarian politics 1867-1918 375 liberal programme of sorts, hoped that the Independentists would tire of their fĳilibustering. Instead, by the end of April 1903, they put his administration into (dog Latin) ex lex. When governments could not put the Appropriation Bill (budget) through parliament in time (which happened frequently), they were covered by an enabling bill, called indemnitás (another misnomer), that authorized them to collect taxes and meet public expenditure. When neither the Appropriation nor an enabling bill had been passed, ex lex obtained (the government put outside the law). This occurred for the fĳirst time in 1899, when the Bánfffy government was replaced by Széll’s. His government, when it could not end parliamentary anarchy and ex lex obtained, was asked to resign by the monarch, under the influence of Archduke Franz Ferdinand and Count Isván Tisza (not that these two ever co-operated). The monarch designated Tisza as the man to take over, but it turned out that the Liberals were not yet ready to reform the Standing Orders to remove obstrukció, which Tisza planned. Then in June 1903, Franz Joseph, in order to end parliamentary anarchy, appointed Count Károly Khuen-Héderváry who was allowed temporarily to shelve the two army bills. Since he still could not restore order in the House, he resigned in August, was soon reappointed but his tenure was cut short by the consequences of Franz Joseph’s Chłopy Order. Chłopy was the village in Galicia where the monarch, attending manoeuvres, issued an army order on September 16, which incensed the Hungarian public. Franz Joseph warned against ‘one-sided aspirations’ that show no understanding of the great tasks that the Army performed for the benefĳit of both Staatsgebiete. The use of this phrase coupled (in another passage) with a reference to every Volksstamm of the ‘great whole’ shocked most Hungarian politicians. The operative passage of the Order read: ‘Common and unifĳied as it now is, my Army shall remain, as a strong force that defends the Austro-Hungarian Monarchy against its enemies.’67 The Order created so much excitement in Budapest that the monarch sent a conciliatory rescript to the Prime Minister Khuen-Héderváry to pla- cate the Sixty-sevener majority.68 Although Franz Joseph reiterated his

67 ‘Mein Heer insbesondere, dessen gediegenes Gefüge einseitige Bestrebungen, in Verkennung der hohen Aufgaben, welche dasselbe zum Wohle beider Staatsgebiete der Monarchie zu erfüllen hat, zu lockern geeignet wären, möge wissen, daş Ich nie der Rechte und Befugnisse mich begebe, welche seinem obersten Herrn verbürgt sind. Gemeinsam und einheitlich wie es ist, soll mein Heer bleiben, die starke Macht zur Verteidigung der österreichisch-ungarischen Monarchie gegen jeden Feind.’ Kolmer, Parlament, viii, pp. 494–95; TIKB, i, pp. 730–31. 68 On September 22 1903, ibid., i, pp. 731–32. 376 chapter eleven determination to transmit the monarch’s army rights to his successors unimpaired, he was prepared to implement ‘in my royal power’69 such army reforms as he considered permissible. This led to the appointment of the Committee of Nine by the Liberals. The Committee’s report was submitted to the king, after which Franz Joseph, whilst reasserting his right to determine the language of the Army, made the concession that ‘the lawful influence of parliament applied to this question as to any other constitutional right’. The subsequent sentence explained: ‘Legislation, [agreed by] the crown and parliament together, could alter this position.’ 70 The concession did not amount to much71 and that was why Apponyi and a part of his group left the Liberal Party. It was, however, all too much for Cisleithania. While the Chłopy Order and its consequences were part of the constitutional discourse, in the strict sense, involving the crown and parliament, the Koerber-Tisza debate involved ‘Austria’ and Hungary. The prime minister of Cisleithania, Ernst von Koerber, explained in the Reichsrat that both §5 of the Delegations-Gesetz and 11 of Law XII of 1867, although using diffferent terms, provided for the monarch’s reserved right in maintaining the complete unity of the Army. He then went on to infer from the Hungarian law that in any alteration of the management of subjects that were common to the Monarchy as a whole, Austria possessed the same rights as Hungary.72 It is difffĳicult to see what, if any, exception could be taken to the speech on the basis of the constitutional arrangement framed by Deák in 1867, but Khuen-Héderváry’s critical response to it in the House on September 23 was not considered robust enough. He was subsequently defeated on a procedural motion by the House and resigned. This was unprecedented; no government had lost offfĳice in this manner before. In came István Tisza, Franz Joseph’s last bet, with a carrot and a stick. The carrot was the army programme of the Committee of Nine in which Franz Joseph made minor concessions; the stick was Tisza’s determination to revise the House’s Standing Orders so that the two army bills could be pushed through. He impressed the House in his response to Koerber’s speeches. Tisza had, like most Liberals, accepted the Szilágyi thesis that

69 ‘Királyi hatalmamból folyó.’ 70 TIKB, i, pp. 749–51; Bernatzik, Die öst. Verfassungsges., p. 706, for the eight-point programme see ibid., pp. 704–06. 71 Had the text, approved by the monarch, used ‘king’ rather than ‘crown’ Franz Joseph would have moved towards the Szilágyi thesis. 72 On September 23 1903. TIKB, i, pp. 734–36 and ii, pp. 95–97; Kolmer, Parlament (the second intervention of the Prime Minister Koerber), viii, pp. 512–21. the army question in hungarian politics 1867-1918 377 the Settlement Law was an independent creation with which Koerber’s statement was in conflict. And so the Hungarian prime minister brushed offf the statement of his Austrian opposite number as: ‘to use an English expression, the dilettante utterances of a “distinguished foreigner” to which it would be a mistake to attribute much weight.’73 Among others, Apponyi (soon to defect from the Liberals to become in 1905 joint leader with Ferencz Kossuth of the Forty-eighters in the House) sent Tisza a letter of congratulation. The army crisis deepened after 1903. The Committee of Nine programme did not offfer enough to provide an acceptable quid quo pro for the higher annual contingent of recruits. The two bills already shelved by Khuen-Héderváry in June could not be brought back by Tisza when he took over in the autumn.74 However, the monarch did not abandon the army expansion plan and as an ever growing section of the political class demanded (unobtainable) major language concessions from the monarch, the political situation worsened into a constitutional crisis. After Tisza had gone for broke with the Standing Orders revisions75 and lost, his government became in January 1905 the fĳirst ever in Central Europe to be forced out of offfĳice by the adverse vote of the electorate.76 The basis of the conflict now became parliamentary government versus mixed constitution rather than solely conflict over army rights. Indeed, after the autumn of 1903, the army question dried up as a source of constitutional innovation, although it still dominated politics. Since the Liberals, after thirty years of uninterrupted tenure of offfĳice, lost their majority in the House, the king had to negotiate with the leaders of the Coalition formed by the Forty-eighter and the Sixty-sevener opposition parties. The king designated Gyula Andrássy Junior as Prime Minister. His effforts to construct a coalition government, however, came unstuck on the demand to introduce Hungarian as the language of command and service in the Hungarian regiments, a demand which Franz Joseph

73 Tisza then referred to point 8 of the Neunerprogramm with the slight ‘amendment’ that the word ‘king’ be used rather than ‘crown’, see note 71 above. November 18 1903, see TIKB, ii, pp. 98–100. This was the occasion which led Archduke Franz Ferdinand to refer to Tisza as ‘dieser Patent-Hochverräter’. 74 Neither Khuen-Héderváry nor Tisza could have formed a government without the (temporary) removal of the army bills from the order of the day. 75 Tisza could carry out the revision of the House’s Standing Orders (as in comparable cases elsewhere in Europe) only through infraction of the existing Standing Orders, TIKB, iii, pp. 227–36. 76 In the elections held in January, the Independentists, led by Kossuth and Apponyi, became the largest party, but without an absolute majority. Ibid., iii, pp. 413–16. 378 chapter eleven repeatedly rejected. (He well understood that he would otherwise face further demands eventually leading to a separate Hungarian army and also to similar demands made by the Czechs and the Croats.) The monarch was then prepared to appoint Andrássy ad interim before agreement with the majority of the House, which formed a Coalition on army demands. This plan was rejected by the Coalition.77 The acute political conflict between king and parliament was not resolved by further negotiations in Budapest. The consequent constitutional crisis afffected the whole Monarchy and beyond. In June 1905, Tisza was replaced by Baron Géza Fejérváry. For the fĳirst time, Franz Joseph appointed a temporary government ‘which stood outside the parties’;78 it had no parliamentary support. The cabinet no longer served as a bufffer; for the fĳirst time since 1867, the conflict between the crown and parliament was laid bare. Although the royal letter and Fejérváry made clear that the government intended to fĳind a successor based on majority support,79 the House passed a motion of no confĳi- dence80 and declared the government unconstitutional.81 Fejérváry resigned and was reappointed in October with a programme that included a substantial extension of parliamentary franchise to put further pressure on the Coalition to take offfĳice on the king’s terms. A political compromise was still the main option for the monarch. He had, however, an emergency plan, ‘Case U’, worked out by the Ministry of War, for the military occupation of Hungary.82 Because the politicians, supported by the bulk of the political class, continued to resist him for months, Franz Joseph dissolved parliament prematurely in ex lex with military assistance in

77 TIKB, iii, pp. 430–35. 78 The king’s letter to Baron Fejérváry of June 18 1905, ibid., p. 579; Bertalan Lányi, A Fejérváry kormány, Budapest, 1909 (hereafter: Lányi, Fejérváry), pp. 15–20. 79 Prime Minister Fejérváry in the House on June 21 1905, Képv. napló, i, pp. 461–63. 80 Ferencz Kossuth’s motion on June 21 1905, ibid., pp. 466–68. 81 Proposed by Dezső Bánfffy, ibid., pp. 469–75. The resolution was passed nem. con. only after the king’s rescript that had suspended the sittings had been read out and the government and most of the Liberals had left the chamber. In another resolution the House declared the prorogation of parliament unconstitutional, see per contra Lányi, Fejérváry, pp. 316f, 408f, 415f. The Upper House also condemned the Fejérváry government. 82 The policy options of the government, including the military one, were discussed in a Kronrat on August 22 at Bad Ischl. See Éva Somogyi’s introductory essay and the minutes of the meetings in Die Protokolle des gemeinsamen Ministerrates des österreichisch- ungarischen Monarchie 1896–1907, Budapest, 1991, pp. lxxi–lxxiii, 445–66. Kurt Peball and Günther E. Rothenberg, ‘Der Fall “U”’, in Aus drei Jahrhunderten. Beiträge zur österreichis- chen Heeres- und Kriegsgeschichte von 1645 bis 1938 (Schriften des Heeresgeschichtlichen Museums 4), Vienna, 1969, pp. 85–126; Péter Hanák, Magyarország története, vol. vii, I, Budapest, 1978 (hereafter: MT), pp. 579–83. the army question in hungarian politics 1867-1918 379

February 1906. That was a turning point in the crisis. Henry Wickham Steed, The Times correspondent in Vienna, turned out to be right all along: the Coalition was a paper tiger.83

The Swing of the Pendulum

The Coalition surrendered after the basic rule of the constitution was about to be broken. By law, parliament was elected for fĳive years. The king had the right to dissolve parliament, but after a premature dissolution he had to call another within three months. It became clear, however, after the dissolution in February 1906, that the king’s government would introduce by octroi a substantial extension of the franchise before the next parliamentary elections. This reform would have undermined the ascendancy of the gentry in politics. In order to forestall that, the Coalition had to accept offfĳice without any concessions being made by the king. Indeed, Franz Joseph, having successfully reasserted his right to appoint the government, set stifff terms on which the Coalition was invited to assume offfĳice in April 1906. Sándor Wekerle headed the government, Franz Joseph’s personal choice,84 a Sixty-sevener who did not belong to any of the Coalition parties.85 Parliament was painfully aware that coming to a settlement with the crown in the previous summer would have secured them better terms. The army question was left hanging even after the April 1906 pact, a temporary truce rather than a proper settlement, which suspended the constitutional crisis. The Wekerle ministry did not commit itself to the higher annual recruitment,86 nor did parliament abandon the demand for army-language reform. In 1909, the king used the crisis of the Wekerle government to shift parliamentary politics back to the fĳirm supporters of the 1867 Settlement. In January 1910, he appointed Khuen, who enjoyed no parliamentary support.87 This was, however, not a repetition

83 See The Times, January 30, February 1, 8, 15, March 6, 14, 23, April 7, 10 1906. 84 József Kristófffy,Magyarország Kálváriája: Az összeomlás. Politikai emlékek, 1890–1926 (hereafter Kristófffy, Magyarország), Budapest, 1927, pp. 348, 356. Apponyi, Emlékirataim, ii, pp. 161–62. Although a year later the king told Andrássy that he had appointed Wekerle because ‘nobody else was available’, István Dolmányos, MT, vol. vii/II, Budapest, 1978, pp. 610–11 (a dig at Andrássy who had declined to take offfĳice on his terms). 85 Wekerle joined Andrássy’s Constitution Party on April 8 1906, the day of his appointment. 86 See Andrássy’s account of his audience with the king, Count Julius Andrássy Junior’s political diary 1908–1913, Kónyi-Lónyay Papers, X (hereafter Naplója), in the Library of UCL SSEES, p. 5. 87 TIKB, iv, pp. 55–65; Albert Deák, A parlamenti kormányrendszer Magyarországon, ii, Budapest, 1912, (hereafter: Parl. korm.), p. 30; Kristófffy,Magyarország , pp. 654–55; Gábor 380 chapter eleven of the appointment of Fejérváry (which had followed rather than preceded a general election). After tumultuous scenes in the House, sittings had to be suspended and in March, parliament was once more dissolved in ex lex. The general election, however, produced a Sixty-sevener House.88 The king’s gamble had paid offf. He was not yet out of the woods, however. The army bill that raised the annual intake (and that the Reichsrat had already passed, although with difffĳiculty, in 1903)89 was resubmitted in the House in May 1911. As before, the Independentist minority demanded concessions and backed their demand by obstruction. And, as before, the majority began to waver. In March 1912, Khuen resigned and then begged Franz Joseph to give way on one point.90 The flabbergasted aged monarch authorized the prime minister to leak in Budapest that ‘should even the Sixty-seveners side with those who want to curtail one of my most important monarchic rights, I am prepared to abdicate … they can then face the consequences’.91 This blackmail worked. The prospect of Franz Ferdinand’s immediate succession scared the wits out of most Hungarian politicians. Khuen fĳinally resigned in April. The king forthwith appointed László Lukács, whose tenure brought the army crisis to an end. In June 1912, by a parliamentary coup engineered by Tisza, who was now in the chair, through which the Standing Orders were toughened up by the new majority, the army bill, which raised the annual contingent of recruits, was, after ten years of conflict, forced through the House without the monarch making concessions to Hungary.92 As a result, Tisza became a hated man in the political class. When war broke out in 1914, the army question was still hanging over politics.

Conclusions

There are several possible explanations for the army question’s dominance over constitutional politics:

Vermes, István Tisza, New York, 1985 (hereafter Tisza), pp. 132–34. On Franz Ferdinand and the construction of the cabinet, see Gratz, Dualizmus, ii, pp. 238–39. 88 TIKB, iv, pp. 86, 188–90, 424–26. 89 See note 63 above. 90 TIKB, iv, p. 650. The so-called recruit resolution crisis, which concerned a new interpretation of Law XVIII of 1888 that was to reduce the monarch’s army rights to call up reservists when parliament did not pass the bill on the annual contingent of recruits. 91 Kristófffy, Magyarország, pp. 677–79, he thought it was only a false alarm; TIKB, iv, pp. 664–66. 92 Ibid., pp. 684–702. the army question in hungarian politics 1867-1918 381

1. At the time of the Koerber-Tisza debate, observers, more sensitive to constitutional forms than we are today, noticed with dismay that the obligations of the contracting parties were set out diffferently in the Hungarian Settlement Law and in the December Constitution. The discrepancy over the monarch’s army rights was particularly glaring. While §11 Law XII of 1867 ‘recognized’ the monarchic right as ‘constitutional’, §5 of the Delegations-Gesetz assigned disposition over the Army ‘exclusively’ (ausschliesslich) to the monarch.93 Difffĳiculties over the diffferences undoubtedly existed from the start, but their importance should not be exaggerated. §69 of the Hungarian law stipulated that its clauses regarding the treatment of common matters would come into efffect only when ‘their content’ had been consented to by the Other Lands. The enactment of the December Constitution was seen in Hungary as satisfying what the Hungarian law required and the Settlement came into force in all respects. For as long as the political will existed to interpret the two texts as sub- stantively identical, diffferences of formulae did not seem to matter that much. Or, to put it diffferently, the gap between the two texts was not unbridgeable as long as the Hungarian clause retained its original structurally dualistic sense: monarchic reservata by virtue of the constitution. The empire of the Habsburgs, seen in 1867 as a monarchic union of Lands rather than a union of two independent States, did not require identical legal provisions for its proper functioning. Because within the monarchic union Hungary possessed a mixed or balanced constitution rather than parliamentary government, there always existed discrepancies between the dynasty’s and the ország’s views on their respective rights and obligations. Arguably, for centuries, the discrepancies before 1867 had been much greater than after.94 By the end of the nineteenth century the political will in Hungary to co-operate with the other ‘half’ of the Monarchy diminished and under the influence of the new constitutional discourse, based on the doctrine of state sovereignty (magyar állameszme), the textual diffferences exacerbated the conflict but did not create it. Hungary’s rights under the 1867 Settlement were reinterpreted in Budapest as much where the text matched that of the December Constitution as where it did not. On the critical point of army rights, after the Settlement Law sufffered reinterpretation, ‘constitutional’ came to mean ‘subject to parliamentary influence’.

93 Bernatzik, Die öst. Verfassungsges., p. 443. 94 See Péter, ‘Verfassungsentwicklung’, pp. 257–58. 382 chapter eleven

From that point onwards, the Austrian and the Hungarian laws flatly contradicted each other. The clash between the old and the new view on the constitution became manifest in the conflict over the monarch’s army Order issued from Chłopy and the subsequent Koerber-Tisza debate. 2. Evidence abounds for the existence of strong Hungarian nationalist sentiment about the Army: its German character was an afffront to the Hungarian claim to national independence. Demands for the expansion of the use of the Hungarian language had strong popular appeal. As regards the outcome of the conflict, expectations in the House were unrealistic. When Fejérváry as Minister of National Defence in 1903 observed tongue in cheek that he wished to, but alas could not remake the whole world to meet Hungarian desiderata, he was shouted down by Forty- eighters in the House: ‘Yes, we can and we shall.’95 The opposition was determined ‘to wrest national demands’ from the crown. Incidentally, national movements became more vigorous nearly everywhere in the Monarchy around the turn of the century. The defeat of Russia by Japan and the 1905 revolution that knocked Russia temporarily out of the European balance of power emboldened radical nationalists. As elsewhere in the region, Hungarian nationalist demands were claimed as historic rights. The new concepts, the State, legislation, national independence, legal sovereignty, were all projected into medieval history. Constitutional innovation in Hungary was carried out by reference to pre- existing rights. Yet nationalism by itself cannot provide an adequate account for the conflict over the Army. Nationalism explains too much and at the same time too little. It begs the question: one may accept that the driving force of constitutional politics was nationalism, but one still has to ask why it took the form of the army question. 3. Perhaps the nature of the Hungarian political class provides the answer. The character of parliament (and particularly of the opposition) was formed by the landed gentry and the ‘national intelligentsia’ whose social outlook was similar to the gentry’s. In the sixteenth century, Werbőczy had established the convention of viewing the nobility as a warrior class (katona nemzet) whose privileges were based on military virtue: ‘unlettered but brave’ (not interested in crafts or trade, nor cultivating the arts). Late nineteenth-century political pamphlets still used Werbőczy’s imagery. The ‘shield of Christianity’ topos found its way as much into Apponyi’s political vocabulary in the early twentieth century

95 On January 28 1903, Képv. napló, xi, p. 76. Zoltán Pap and others were the hecklers. the army question in hungarian politics 1867-1918 383 as it had done into Kossuth’s half a century earlier. The noble’s sword was more than an accessory to the bearer’s social standing; it was even exempted from the bailifff’s authority when he requisitioned property—a stipulation in the law on Promissory Notes of 1843. This proud gentry class had unhappily lost its own army in the eighteenth century, except the insurrectio, a hopelessly outdated noble militia. Ever since 1790 the gentry had demanded the return of its army as an essential attribute of the Hungarian ‘national genius’. Important though these traditions and memories may have been, they could not have pushed a country to the brink of civil war, as the army question did. The appeal of the army demands also reached far beyond the gentry. 4. A plausible explanation for the Hungarian language demands is that the Army, based on the German language, did not offfer good job opportunities for the gentry. Of the army offfĳicers in 1902 only 27 per cent were from Hungary and, as I pointed out earlier, fewer than half of these were Magyar. The rest were either of Swabian or of South Slav origin.96 Most of the Magyars who entered did not get very far: only a few passed through stafff college. The language barrier was a serious handicap. Complaints about the lack of promotion prospects of the ‘national intelligentsia’ in the Army crop up in speeches in parliament constantly. There are well- documented cases of ‘frustrated’ young gentlemen leaving the Army.97 They mention prejudice against them as well as the language barrier.98 Only the hussars were a preserve of aristocratic and gentry families. But these families avoided the honvédség. In fact, the honvédség, where there was no language problem, attracted the gentry still less than the Army.99 All in all, something must be wrong with this explanation. Research carried out in recent years by Tibor Hajdu and István Deák has produced results that cannot be reconciled with traditional explanations. Hajdu’s book offfers a comprehensive statistical analysis of the social and national changes in the Hungarian offfĳicer corps of the Monarchy. The nobility rapidly lost ground in the Army in favour of the urban middle and lower

96 In March 1903 the subject was ventilated by the Forty-eighters in the House, see István Dolmányos, A magyar parlamenti ellenzék történetéből 1901–1904, Budapest, 1963 (hereafter Dolmányos, Parl. ellenzék), pp. 160–64 (real nuggets embedded in arid Marxist soil); Rothenberg, The Army, pp. 127–28; Hajdu, Tisztikar, pp. 62–63. 97 Compare Dolmányos, Parl. ellenzék, p. 161. 98 This complaint was frequently made in the House. Even leading politicians like Gábor Baross and the law professor Gejza Ferdinándy allegedly left the Army on these grounds, see Ödön Polner, Három magyar közjogász, Budapest, 1941, p. 15 (on Ferdinándy). 99 Hajdu, Tisztikar, p. 258. The prestige of the honvédség was very low after 1868 although it greatly improved after the turn of the century, see pp. 271–75. 384 chapter eleven classes. Hajdu thinks twice before he attributes nationality to an offfĳicer. He writes: ‘Anybody who thinks that a Hungarian, a German or a Romanian could be distinguished with certainty is either naive or a big- oted nationalist.’100 How an offfĳicer in the supra-national Army selected (or refused to select) a national identity would largely depend on circumstances. The proportion of Magyar offfĳicers, low in 1867, was steadily increasing from the 1890s onwards. István Deák’s work, Beyond Nation- alism, A Social and Political History of the Habsburg Offfĳicer Corps 1848–1918, is a bold attempt to describe the Habsburg Army as an institution ‘beyond nationalism’ (rather than preceding it). Its religious or ethnic tolerance, towards Jews for instance, was remarkable.101 The Army was ‘more ethnic- ity blind than biased’102 and ‘if the Joint Army displayed any nationality bias in its promotions, it was in favour of its Magyar offfĳicers. This contra- dicts the incessant complaints of the Hungarian politicians but is nevertheless true’. All in all, promotion was based on higher training courses rather than on social or national background. Germans were promoted in large numbers because they were better educated than the others.103 The military authorities, goaded on by Hungarian politicians, introduced measures of positive discrimination to alleviate the dearth of quali- fĳied applicants from Hungary. Bursaries were widely available. From 1874 onwards, Hungarian Delegation resolutions asked for the establishment of one or more military high schools in Hungary and later demanded the Ludovica Academy, a stafff college. In 1875, they asked for a greater use of the Hungarian language in the curriculum and subsequently for regular reports and statistics about the progress of the language. In 1881, the Hungarian Delegation requested that candidates not be turned away from cadet schools because of their poor German. These measures improved the proportion of Magyar offfĳicers in the Army.104 The hard training and the discipline required in military schools was probably more important than the attitudes and the German language in keeping the gentry youth away from the Army. Those who entered and then dropped out might well have blamed their failure on language difffĳiculties and prevailing attitudes unjustifĳiably.105 Perhaps it was not so much the

100 Ibid., p. 159. 101 István Deák, Beyond Nationalism, Oxford, 1990, pp. 172–78. 102 Ibid., p. 188. 103 Ibid., pp. 187–89. 104 See Hajdu’s statistical analysis, Tisztikar, pp. 164–79. 105 Andrássy Senior complained in 1889 that the gentry youth were keen to become state or local offfĳicials and were hardly interested in joining the Army.Andrássy Gyula gróf the army question in hungarian politics 1867-1918 385 gentry putting pressure on the politicians for army reforms but the politicians urging the gentry intelligentsia to join the army—without much success. 5. The emergence of the army question in the 1880s coincided with recurrent unfavourable conditions in agriculture. The conflict between the ‘agrarians’ and the ‘mercantilists’ as well as the army demands of the opposition developed simultaneously in parliament. Could the former explain the latter? Agricultural tarifffs and the army question produced a succession of political crises before the tarifff question receded into the background in the later stages of the Coalition government. Frustration over the insufffĳiciently protective measures for agriculture spilled over into army debates (there was much bitterness, for example, over the Italian wine tarifff in 1902). Those groups who were pressing the army demands (the Forty-eighters, Apponyi’s New Liberals, before and after they joined the government party under Széll, the Clericals and even the Dissidents of 1904) were all ‘agrarian’ at least in sympathy, and their fĳierc- est opponents were the ‘mercantilists’ (the Tisza group).106 But the link was no more than an overlap. Many agrarians, including leading fĳigures, were lukewarm towards army demands. Signifĳicantly, the party of ‘agrarian’ interests and policies par excellence was Apponyi’s National Party, after 1899 the New Liberals. However, when in November 1903 the New Liberals defected from the Liberal Party because of the king’s refusal to accept Apponyi’s view on the army reservata, the agrarian group refused to follow Apponyi and remained in the government party.107 On a practical level, the pursuance of the army demands did not help the campaign for higher agricultural tarifffs—on the contrary. Yet we should not exclude the possibility that further research might demonstrate some connexion between the two questions.

beszéde a véderőjavaslat tárgyában, p. 63. Franz Joseph complained in 1908 ‘daş die Ungaren keine kriegerische Nation sind, daş sie keinen militärischen Geist haben’, Andrássy Junior, Naplója, p. 181 (Andrássy disagreed); ‘Our young men’, wrote Apponyi, ‘averse to the drudgery and strict discipline of military service’ stayed away the Army, Apponyi, ‘The Army Question in Austria and Hungary’, The Monthly Review, 16, 1904, July- Sept., pp. 1–33 (16). Recent research does not quite bear out these views. Hajdu wrote that in the 1870s and 1880s the gentry youth stayed away from the Army, ‘Az értelmiség számszerű gyarapodásának következményei az első világháború előtt és után’, Valóság, vol. 23, 1980, 7, pp. 21–34 (25). However, the gentry’s presence in the Army later improved: Hajdu, Tisztikar, pp. 269–71. 106 The ‘bourgeois radicals’ of Huszadik Század frequently argued cogently that the driving force of the army question was the economic interests of the large landowners. 107 See Hanák, MT, vii/I, p. 529. 386 chapter eleven

6. Since the army question apparently did not concern hard economic interests, we have to ask how far it concerned the politics of the inessen- tial. Observers and scholars outside Hungary have drawn attention to the legal formalism, the ‘extraordinary skill’108 (or ‘pettifoggery’) of Hungarian jurists and politicians and their preoccupation with the formal, insub- stantial and ritual as a substitute for ‘real advances’. Hungarian politics periodically went through convulsions over titles, hyphens, flags, badges, uniform and the language of command. From this perspective, the army question, indeed Hungarian constitutional politics in general, was a barren exercise. Appearances were none the less important, not just in constitutional paraphernalia. British travellers noticed this feature of Hungarian mores. Paget writes: ‘the more ignorant scarcely believed us when we told them, that, as English gentlemen, we had no uniform.’109 Arthur Patterson notes: ‘As a national proverb truly observes, “Sallangos a magyar”, the Hungarian is fond of trappings.’110 It would be possible to argue, however, as Apponyi did,111 that the fĳight- ing for army symbols and so forth was a fĳight for real things in circumstances where symbols formed part of the argument in which each side collected even trivial-looking assets to be used against the opponent at a future date. A better defence of what I have called the politics of the ines- sential would be the acknowledgement that symbols are essential devices of social mobilization. Political activists instinctively understand the importance of contention over symbols. It is worth asking the question whether the extent to which the Hungarian preoccupation with the ines- sential might have constituted a response to the formalism, the rigid codes of behaviour in the use of symbols at the Habsburg court and also in the Army itself.112 7. Contemporary observers abroad thought that the nationality policy provided the key to Hungarian army demands. Accordingly, Hungarian

108 ‘the extraordinary skill of Magyar political lawyers in the interpretation of constitutional precepts’. Henry Wickham Steed, The Habsburg Monarchy, London, 1913, p. 49. As a Vienna correspondent of The Times, he welcomed the prospect of the introduction of universal sufffrage, since it would ‘counteract the mania for barren constitutional quibbling which bulks so largely in Hungarian public life’, The Times, September 5, 1905. 109 John Paget, Hungary and Transylvania, 2 vols, London, 1855, i, p. 419. 110 Arthur J. Patterson, The Magyars: Their Country and Institutions, 2 vols, London, 1869, i, p. 37. 111 Emlékiratai 1899–1906, Budapest, 1934, pp. 165–66. 112 The long debate in the House on Pál Nessy’s and others’ immunity cases illustrated well the formalistic code of behaviour expected even from reservist offfĳicers, November 20–27 1902, Képv. napló, ix, pp. 36–185. (Claims to parliament’s sovereignty regularly cropped up in this obstructionist debate.) See Hajdu, Tisztikar, pp. 64–65. the army question in hungarian politics 1867-1918 387 politicians tried to turn the Hungarian regiments of the Army into instruments of magyarization. The insecurity of the Magyars, ‘threatened’ by numerous other national groups on all sides, did not diminish after 1867. Magyarization was successful only in towns, among Jews and among isolated German groups settled into the midst of Magyars. But pamphlets and at least one study, by Pál Balogh, suggested that the Magyars were actually losing ground to the nationalities in mixed areas between the large language blocs, particularly in Transylvania.113 Debates in parliament reveal that those groups who were in the front line of the ‘struggle’ for army desiderata, the obstructionist Forty-eighter küzdők (the strugglers) were also the most chauvinist magyarisers and that the connexion between the two postures was evident in a great many speeches. However, a closer look at what the demands actually involved offfers a diffferent picture. The mandatory introduction of Hungarian as the sole Regi- mentssprache in all the regiments raised in Hungary would have been an efffective measure to force non-Magyar offfĳicers and recruits to learn Hungarian, although the change would have largely been at the expense of languages other than German. (Instruction was given in the ‘regimental language’ and a 20 per cent minority language qualifĳied as a second language.) But such a change could not have been carried out and, to my knowledge, was never demanded in parliament. A mandatory change to Hungarian as the Dienstsprache for the forty-seven regiments, of which only twenty-one were purely or partly Magyar, would possibly have forced all offfĳicers to acquire a smattering of Hungarian (it would not have ‘magyarised’ them) and most of them already knew some Hungarian (Hungarian being one of the Regimentssprachen in most regiments, which offfĳicers had to learn). This change was demanded by the opposition (not by the Liberals). But at any point during the crisis after the turn of the century, all groups including even the front-line ‘strugglers’ were quite willing to settle for much less: the introduction of Hungarian as the language of command in all regiments. ‘Yet, nobody thought (as I have argued elsewhere) that the seventy-odd words and phrases drilled into Romanian and Slovak recruits would magyarise them, just as the existing language of command did not germanise them or the Magyars’.114

113 Pál Balogh, A népfajok Magyarországon, Budapest, 1902, pp. 949–52. Balogh’s statistics were used by R. W. Seton-Watson, Racial Problems in Hungary, London, 1908, pp. 396–97. 114 Alan Sked, The Decline and Fall of the Habsburg Empire, 1815–1918, London, 1989 (hereafter Sked, Decline), p. 197 (Sked here quotes from an early TS version of this paper); as late 388 chapter eleven

Undoubtedly the demand to magyarise the language of command was seen by the ‘strugglers’ and by Franz Joseph as only a fĳirst step. On its fulfĳilment other demands would probably have been made by small groups—though that might have remained inefffective. Since some political bargains between Hungary and the dynasty had lasted in the past at least for one generation, there might have been parliamentary peace for some years. It is more plausible to assume that magyarisation was deployed in parliament as a respectable argument to reinforce the army demands rather than being the aim behind them. In sum, the army reforms were intended to impress the non-Magyars, to improve the prestige of the Hungarian State among the nationalities rather than to serve as a practical measure to magyarise them. 8. The country’s political culture and its institutional requirements had much to do with the prominence of the army question.115 As has been argued earlier, politics in Hungary had for centuries largely consisted of diaetalis tractatus—free bargaining between the royal offfĳicials and the ország diet over the requests of the crown for taxes and recruits in return for dealing with the grievances and the desiderata of the nobility. Providing soldiers and to a lesser extent the supply of money had been for long at the centre of the crown-ország relationship.116 The establishment of an ‘independent and responsible’ ministry greatly modifĳied but did not destroy this structural dualism. Had parliamentary government been introduced in 1867, structural dualism would have disappeared. But Hungary still possessed a mixed or balanced constitution in which the powers of the crown had been for centuries balanced by the rights of the diet, transformed in 1848 to become a parliament, strengthened with a popular element by the introduction of franchise. But the growth of ‘party absolutism’ under Tisza, the creation of ‘the system’ based on an etiolated county and corrupt elections ‘perverted’ the majority principle. The government was politically more dependent on the crown than on parliament. All this may have been necessary to maintain the 1867 Settlement,

as the 1930s Apponyi thought that, had the army been Hungarian after 1867, the assimilation of non-Magyars would have progressed steadily, Emlékiratai, ii, p. 198. On July 1 1905, the Prime Minister Fejérváry offfered parliament measures that would have radically increased the use of Hungarian as Regimentssprache, an offfer that the leaders of the Coalition turned down, Lányi, Fejérváry, pp. 29–31. 115 Alan Sked observed that the army question should not be seen as a by-product of nationalism or the nationality question. ‘At heart it was probably a constitutional one in the stricter sense of the term’, Sked, Decline, p. 197. 116 See Péter, ‘Verfassungsentwicklung’, pp. 253–55. the army question in hungarian politics 1867-1918 389 but it forced politics back into old tracks. Since the modern liberal institutions grafted onto the ancient constitution did not work very efffectively (there was no attempt, for instance, to impeach the Fejérváry government while in offfĳice, which would have been legally possible); the ancient institutions and habits were deployed in counterbalancing the powers of the crown and its government. The granting of supply retained its role as a constitutional lever, although it could only delay and the force it released was self-destructive. In the Dualist era, direct taxes contributed less than half of the State’s annual income. Government could, for a while, easily meet recurrent expenditure from other sources. Parliament’s control of public fĳinance turned out to be inadequate. Nor was it efffective as a constitutional guarantee. By contrast, even a temporary gap in the annual authorization by parliament to call up soldiers could damage the machinery of the Monarchy.117 Whenever the crown requested more soldiers the cry rose in parliament: ‘only in return for compensation’ (ellenérték), the fulfĳilment of some national desiderata. The army rights of the ország enshrined in §§12 and 13 of the Settlement Law were used to counter the royal reservata (§11) and the Tisza system. But parliamentary obstrukció was the essential lever. Its practice (and even more the threat of it) was not an aberration of the system but, as some participants observed, its central feature. The ‘strugglers’ did not allow the majority principle to prevail in the House. They prevented bills from being passed, mounted street demonstrations and petitions to put pressure on the House’s majority, drove governments into ex lex, disabled and sometimes even destroyed them. However, they could claim that what they were doing was only a response to the perversion of parliamentarism: the government violated the majority principle by gaining its majority by corrupt elections. Remedies for parliamentary obstruction could not be found easily because of the structural dualism of Hungarian politics. Labouring under a mixed constitution, the Liberals were reluctant to clamp down on the ‘strugglers’ since that might weaken parliament; they preferred to leave the president of the House weak–otherwise the political balance would be tilted even more towards the crown. The open conflict in 1905 induced both sides to fall back on the institutions of the past. The king appointed homo regius to negotiate with the Coalition leaders. The counties resisted the implementation of government measures with their traditional

117 Ibid., pp. 432–33. 390 chapter eleven

guerrilla war of vis inertiae rather than with the forms offfered by the laws passed after 1867. The government then sent royal commissars to restore order (a centuries-old practice). Their installation created even more disorder: they suspended the payment of salaries and dismissed elected offfĳicials in the king’s name with military assistance. The local gentry then occupied the county offfĳice, broke the commissar’s chair (széktörés, chair- breaking, was an old practice) and sealed the building. Where the gentry were not fĳirmly in the saddle, in the outlying territories with non- Hungarian nationalities, there were few signs of resistance. There was plenty of support for the Coalition in the Hungarian intelligentsia and the lower classes, especially in the countryside. But support in the capital and in the larger towns was feeble. The business classes kept away from the Coalition. The new ‘radical intelligentsia’, the industrial working classes, their trades unions and the Social Democratic Party were fĳighting for universal sufffrage and gave support to the government in return for promised social reforms. Ferencz Kossuth, in despair, pleaded for the re-establishment of the nádor, an archduke palatine, to mediate between crown and country.118 The Coalition, already in a hole, went on digging. When it refused to negotiate terms with the representatives of the Reichsrat (which the 1867 Settlement had provided for), assisted by a honvéd bat- talion, a ‘royal commissar plenipotentiary’ was sent by the monarch to parliament to hand over the royal rescript of dissolution.119 The House was empty. In the Basilica, however, Mgr Molnár, a leading Clerical, (who in December had been photographed sitting aloft the broken benches of the House when Tisza’s coup to change the Standing Orders had failed) celebrated a Mass for the Coalition. The Mass, Abbot Molnár announced, was to entreat the Virgin Mary to intercede and to protect Hungary. In the army question (and only in the army question) the crown could not be satisfĳied with a prolonged stalemate. The Habsburg Empire was rapidly falling behind its rivals militarily and the maintenance of its great- power status required a larger and better army. The Hungarian parliament rejected even the Army’s modest request for more recruits for over a decade. No other elected assembly in central and eastern Europe was able to stand up to the government to that extent at any time before the First World War. But the price the country had to pay was high constitutionally, and even higher politically. After 1901, all parliaments (in 1905,

118 The Times, January 22, 1906. 119 Gratz, Dualizmus, ii, pp. 112–14. the army question in hungarian politics 1867-1918 391

1906 and 1910) were prematurely dissolved by Franz Joseph into ex lex. Tisza’s parliamentary coup in 1912 mutilated parliament’s bargaining position with the crown. Naturally enough, although there is a balance in every constitution, there is no balanced constitution as a stable form of government.120 Whether the pendulum in Hungary would have swung back to parliament we shall never know because the Habsburg Monarchy disintegrated six years after Tisza’s coup. The political damage caused by the army crisis was incalculable. Cautious attempts at liberal reforms in the Monarchy were abandoned. In Bohemia the Czech nationalists, inspired by the Hungarian aspirations engaged in their own form of resistance in the ‘zde’ movement. When the War broke out in 1914, the Army, after the long years of delays in expansion, was in a sorry state. The Monarchy thereby became utterly dependent on the German high command—a dependence that sealed its fate. The crisis brought too much publicity to Hungarian politics in the European press. In 1900, Hungary, sometimes criticized abroad for being difffĳicult in its relations with Austria and for being unjust in its treatment of its nationalities, was nevertheless readily accepted as a ‘progressive’ liberal state.121 This acceptance was not undeserved, and in contrast to Austria, sufffering as it was from the efffects of the Badeni crisis, the country was seen by outsiders as a mainstay of stability that was bolstering up the Monarchy that was itself an essential counterweight to the growing power of Germany. The constitutional crisis destroyed the reputation of Hungarian politicians all over Europe. Their army demands turned out to be disruptive to the Monarchy and European peace. Indeed, Hungary itself was now considered to be a dangerous source of instability.122 The Coalition, even after taking offfĳice, did not abandon the plan to introduce Hungarian as the language of command. Outsiders saw this as forced magyarization, yet, as I have pointed out, over half of the population remained non-Magyars. Behind the constitutional crisis the European public ‘discovered’ the oppression of the nationalities. Hungary’s reputation as a liberal state collapsed and, in the foreign press, became comparable to Russia’s.123 The ‘massacre’ of Černová in October 1907 consolidated the new dark assessment of the country in the foreign ministries of

120 Compare John Stuart Mill, Representative Government, 1861, ch. V. 121 See Géza Jeszenszky, Az elveszett presztizs, Budapest, 1994, ch. 3. 122 László Péter, ‘Introduction’ in Péter and Martyn Rady (eds), British-Hungarian Relations since 1848, London, 2004, pp. 6–8. 123 The Times, November 1, 1907. 392 chapter eleven western Europe. Hungary became an overused paradigmatic instance of national oppression in the literature on modern nationalism. The change in the country’s image afffected the terms of the Trianon Peace Treaty in 1920. At the end of the First World War the Western Powers in their zeal to transfer all non-Magyars, even from the nationally mixed regions of Hungary, to its neighbours created a set of new multi-national states that were infested with problems of national minorities greater than Hungary had endured earlier. Nearly a third of Hungarians found themselves in the new states. Trianon traumatized Hungary. The Treaty formed an incubus on the Hungarian psyche, which it has after some eighty-fĳive years as yet to throw offf. All in all, our assessment of the army crisis will be dependent on the choice of perspective. From the outlook of liberal constitutionalism the ország’s army rights, an unpredictable disruptive force, generated the army crisis in the Monarchy with untold consequent political damage. From the perspective of a mixed constitution, which Hungary sustained, the army rights of the ország worked after 1867 for half a century as an efffĳicient lever to secure a constitutional balance of sorts between the crown and parliament as well as a political makeweight between the two states of the Habsburg Monarchy. CHAPTER TWELVE

INTELLECTUALS AND THE FUTURE IN THE HABSBURG MONARCHY, 1890–1914 (AN INTRODUCTION)

with Robert B. Pynsent

The German Culture

Culture in the Habsburg Monarchy was always fragmented. Even at the higher social level the elite in the Monarchy consisted of culturally diverse groups. Diversity at the top reflected a society which lacked cultural homogeneity. Ever since the Austrian, Bohemian and Hungarian Lands had been permanently united in the sixteenth century—and even more after parts of the Low Countries and of Italy and Poland were added—the diversity of religion, language and custom had been more pronounced than elsewhere in Europe. Our current inquiry concerns the cultural elements that linked the Monarchy’s social groups to each other rather than separating them. Social developments in the nineteenth century produced culturally contradictory results. In some respects society became more integrated and the Lands moved closer to each other. In other respects new rifts developed. This was as true of intellectual as of other aspects of social life. The unifying process was undoubtedly helped by the loss of the Low Coun- tries, later of Italy, and the creation of the German Empire, which weakened Austria’s ties with the rest of Germany. But the real force of social and cultural convergence inside the Monarchy lay in internal economic and social change. Paradoxically, the 1848–9 revolutions, instead of disrupting the Monarchy, in their consequences helped its integration. In 1850 the internal tarifffs, which had earlier separated the Lands, were fĳinally removed. The rapid growth of towns and industrialisation, a common currency, credit and transport system, particularly railways, through which entrepreneurs, engineers, and even the labour force were easily shifted from one Land to another, created urban centres all over the Monarchy with a similar outlook. These economic changes were matched by comparable changes in social institutions. The Austrian Civil Code of 1804 was introduced into the Hungarian Crown Lands in 1852 together 394 chapter twelve with the judicial system. Bureaucrats were transferred in large numbers from western to eastern parts. The Lands of the Monarchy, if only for a short period, acquired the same centralised bureaucratic institutions after the collapse of the 1848–9 revolutions. In the last twenty years of the eighteenth century, German became established as the language of high culture in the Monarchy. After 1848 through the growth of capitalism and of administrative centralisation, German urban culture permeated the new urban centres. As Pest, Prague, Zagreb rapidly expanded, so did German culture. Civil servants, railway offfĳicials, industrialists and, in some Lands, even workers on the shop floor were becoming German in culture. German culture could not, however, become general. The social group which transmitted the new urban culture was not sufffĳiciently strong for that, and it was itself not quite homogeneous. The new middle classes grew partly out of indigenous German burghers and partly out of the Germanised educated classes, in which the Jews, who were gradually emancipated, were prominent. In fact the Jews provided the backbone of the German urban middle-class culture in Vienna and Pest. The Jewish middle classes did not achieve social integration in the new expanding urban centres. Pest grew from 100,000 in the 1840s to a million by 1918. Natural growth was hardly a factor in this expansion. The incessant flow of people from the villages explains this growth. The newcomers brought with them a culture diffferent from that of the germanised Jewish middle classes. The two sets of newcomers rubbed shoulders without sharing the same culture.

The Culture of the Lands

A rift had developed between the culture of the towns and that of the countryside. Furthermore, the cultural gulf between Vienna and the Lands was also growing. Cultural change engendered by the growth of urban capitalism moved in the opposite direction to political change in the Monarchy. The new culture did not engulf the Lands where society remained predominantly agrarian. The emancipation of the peasants, the introduction of equality before the law and of modern private-property relations, and the change to a market economy gradually transformed the countryside in the nineteenth century. Social transformation in the countryside largely followed the politics of the landlords who, in most areas where they were not German intellectuals and the future in the monarchy 395 speaking, led anti-German nationalist movements. The rise of nationalism held back and, later, isolated germanised Jewish urban culture. The politically most successful nationalist movement was led by the Hungarian gentry who, through the Settlement or Ausgleich of 1867, acquired Home Rule for the eastern half of the Monarchy. The Croat gentry in the south and the Polish gentry in Galicia acquired autonomy. The attempt in Bohemia to attain a position comparable to that of the Hungarians failed in 1871. The nationalist gentry in Hungary and Croatia tried to create homogeneous ethnic cultures. In Hungary, under the parliamentary oligarchy of landowners, a large class of state offfĳicials and professional urban middle classes was created by 1900. The ascendant educated middle classes, instead of being absorbed into a German urban culture, rapidly integrated into the new gentry-based Magyar culture. Slovaks from northern Hungary entered Magyar grammar schools after the Slovak schools had been closed down; large numbers of Jews from Galicia, who may have arrived in Hungary via Cisleithania and who formed a quarter of Budapest’s population by 1914, and even the indigenous German burghers of Hungary’s older towns, fused. Magyar culture, however, did ‘not spread to the large settlements of non-Magyars. Magyars formed only about half of the country’s population by 1914. Just as the Magyars could not absorb their nationalities, the Croats in Croatia could not absorb the Serbs, and the Poles failed to polonise the Ukrainians in Galicia. The Czechs in Bohemia were, however, able to challenge the privileged position of the Germans even after 1871. All in all, while urbani- sation did bring the separate elements of the Monarchy’s society into contact with one another, and expanded an urban social group which identifĳied itself with the Monarchy, nationalism intensifĳied diffferences, indeed created new rifts all over the Monarchy. The cultural trends, described in this volume, treats involved reactions against separatist political nationalism. The 1890s was a period of growing political tension. The political stability of the years between 1875 and 1890 was replaced by the instability produced in Budapest by the Great Defence Debate of 1889, which weakened the Dualist system. The end of the long tenure of the Taafffe government in Cisleithania in 1893 had even more serious consequences, leading to the Badeni crisis of 1897, after which the Czech-German conflict in Bohemia was seen by most observers as insoluble. In parallel to these changes the German liberal middle-class parties in Vienna lost power to modern mass parties, the Social Democrats and Christian Socials. The rising anti-Semitism of Vienna and the speeches of a newly installed anti-Semitic mayor, Lueger, appeared to isolate the 396 chapter twelve germanised Jewish middle classes. Afffluence in Vienna, Prague and Budapest created new political aspirations, particularly the desire for universal sufffrage. Franz Joseph, who had enough of the political obstruction of middle-class nationalist politicians, embarked on experiments with the extension of the franchise. These experiments called the social and national foundations of the Dualist system into question. Instead of rely- ing on the German middle classes and the Hungarian landlords, a new order might be created which, with the political participation of the masses, might engender less obstructive political attitudes. On the other hand, mass politics would enable the Slavs to participate; perhaps the Dualist system would one day give way to a Trialist system with the ‘Slavs’ acquiring parity of status with the German middle classes and the Hungarian landlords. In 1900 it was, then, not at all clear what would be the path of the future: culture and politics based on rival national identi- ties or a new, more unifĳied, urban civilisation. The culture of the 1890s was largely an urban culture; the urban middle classes, the consumers of culture, took little notice of the gross problems of agriculture at the time, though they were beginning to become more seriously aware of the condition of the industrial proletariat. Before the last two decades of the nineteenth century Austrian- German culture had already been urban, but in the Hungarian and Bohemian lands it had been predominantly rural. In both Vienna and Budapest culture was dependent on the Jews; Jews ran the periodicals and daily press; Jews bought paintings, went to concerts and so forth. The same was generally true of German culture in Prague, but Jews had very little influence on Czech culture in Prague. Furthermore, in Vienna the dominant artists and thinkers were themselves Jews or conscious of Jewish descent. ‘Vienna 1900’ has become as much of an area for scholarly publication in Anglophone countries as the Italian Renaissance. Contemporaneous cultural activity in Budapest, Cracow and Prague has been largely neglected. The 1984–45 Darmstadt exhibition of Czech fĳine arts from 1878 to 1914 has had some impact on Anglophone art historians, and Bohemian- German literature of the period has earned considerable attention, mainly because of Franz Kafka. What linked the cultural centres of the Monarchy in this period was those centres’ orientation towards Imperial Germany. In the fĳin-de-siècle, Imperial Germany was represented primarily by Friedrich Nietzsche and by Arthur Schopenhauer. Many Slav nationalists, like T. G. Masaryk, abhorred the influence of Nietzsche on contemporaries. Yet, to the intellectuals and the future in the monarchy 397

average thinking Central European of the 1890s Nietzsche offfered an interpretation of the age. Towards the end of the nineteenth century the educated citizen of the Monarchy was faced with a social state of afffairs he needed to interpret (the factory-worker could no longer be considered an urban peasant); a new class, the moneyed upstart class, had become at least as powerful as the old aristocrats; railways had created a possibility of communication hitherto regarded as irrelevant to a decent man’s life; the Monarchy had been forced to enter a world economic forum because of North American grain production; Imperial Germany had created dependent colonies or protectorates in areas rich in raw materials, where Austria had lacked the impulse to go beyond the Mediterranean, and so forth. The Protestant moralist Nietzsche had apparently created an amoralist system which might interpret the chaos in which the aspiring intellectuals of the Monarchy found themselves. In fact, Nietzsche justifĳied the chaos. Nietzsche provided a basis for those intellectuals who became what Erich HelIer called ‘insurgents of the spirit’ (lecture delivered at the Barbican Centre, London, 22 October 1985). J. P. Stern speaks of Nietzsche as a potentially reassuring force, as a writer who challenged ‘the dichotomy of “scientifĳic” (i.e. das Wissenschaftliche) versus “imaginative”, or ‘that frag- mentation of knowledge which he … saw as one of the chief blights of modern Western civilization’ (Stern, Nietzsche, London, 1978, ‘Conclu- sion’). Freud unites the ‘scientifĳic’ with the ‘imaginative’, but so do most of the authors treated in this volume. Nietzsche’s challenge has retained its pertinence through the Snow-Leavis debate to the present, when a ‘decadent’ liberal education is forced by narrow fĳiscal utilitarian attitudes to fĳight against microchip technology. In this volume Swales labels Nietzsche ‘the patron saint of both the sceptics and the vitalists’; in Nietzsche the Austro-Hungarian intellectual found the apotheosis and the denigration of his social ambition, his shame, his strength and his weakness. Nietzsche found an existential solution in both the warrior and the ascetic. (In the lecture we have just mentioned, Heller spoke of fĳin-de-siècle Vienna’s having produced primarily ‘radicalisms and asceticisms of the mind’.) Farrell points out that Nietzsche, together with Schopenhauer, stimulated the wide acceptance that ‘it was possible and desirable to uncover the reality behind the mask of consciousness’. So, too, Eile speaks of the influence of Schopenhauer’s conception of Will together with the influence of Nietzsche’s ‘anti-intellectualism’ as the major stimuli for the ‘satanist’ Przybyszewski’s ‘irrationalism’. (Whether the conventional term ‘irrationalism’ adequately expresses the fĳin-de-siècle’s radical rejection of both 398 chapter twelve the Enlightenment and the Romantic reaction to the Enlightenment would make the subject of a long book.) According to Vlček, Schopenhauer’s pessimism led to Czech intellectuals’ awareness that they were living through a moral ‘crisis’, that ‘mystic sensualism’ was an adequate weapon against the hideousness of industrial society.

The fĳin-de-siècle

Austrian-German culture could, theoretically, exist in a national political vacuum, since German speakers did not have to have a national identity to fĳight for. Since the end of the eighteenth century (at least) it had become something of a national-protest tradition for Hungarians and Czechs, and Croats and Habsburg Poles, to believe, as Vlček says, that the main reason for ‘any policy of national self-determination’ was ‘the idea of the preservation of national culture.’ The preservation of national culture meant self-preservation against Vienna. It also meant, however, the attempt to preserve one’s native land or native class from the decay evident in Vienna. The literary critical term ‘Decadent’ is only useful in so far as it describes an artist who expresses his awareness of the decay around him, at the turn of the century. One might hold that over-sensitive intellectuals saw the new, wondrous urban life as ‘decay’. Finn’s old-fashioned Justh may see Magyar decay as a direct result of general western European debauchery, but on the whole the Monarchy’s intellectuals were concerned, in this period, with the decay and impending annihilation of European culture as a whole. The mytho- poeic Justh, however, also suggests a national escape from European decay. Finn states that Justh’s ‘Taedium vitae’ may be interpreted as instructing Hungarian nobles not to rely only on inspiration from the West. If they do not want to die out, they must fĳind their ‘own primal resources’. The position of Justh’s Magyar nobles may be compared with that of Schnitzler’s duelling army offfĳicers. In Swales’s exegesis on the code of such duels one sees the Nietzschean paradox of life-afffĳirmation combined with life-denial: ‘there is a strange, specious vitality to that heavily shop-soiled piece of social machinery’. Schnitzler’s works suggest the sick society Freud feels he must cure. Pynsent speaks of a generation which was ‘literally painfully aware of living in an age… of degenerate moral and aesthetic values’. A writer who strives to express his awareness of the decay surrounding him is necessarily a critic of contemporary life. The fĳin-de-siècle period intellectuals and the future in the monarchy 399 was fundamentally a period of criticism, a period when the leading intellectuals questioned all conventions and institutions. Only on criticism could any future be based. Few of these intellectuals were left wing in any recognised sense of the word. Most of them were of the lower middle or middle-middle classes and had spent some time at university. Their rejection of the social order was based on a moral and aesthetic idealism. Even monarchs had lost their aesthetic lure and had become bourgeois like the rest. Swales points out that Franz Joseph was now considered simply a chief bureaucrat. The Emperor was at the head of a society which technological advance had debased, even dehumanised. The spread of industry had brought with it the modern city, its squalor and its disrespect for the old. Pest was becoming a sprawling display of the new architecture, and in Vienna and, more still, Prague, old buildings were being torn down and replaced by what contemporaries saw as dull, ugly art nouveau buildings. Architectural historicism mingled with architectural novelty and thus expressed a general loss of bearings. The rebuilding of areas of old Prague and Vienna was considered the work of the ‘bestia triumphans’, what, as Swales points out, Hermann Broch referred to as ‘Unstil’. And Unstil expressed sheer artifĳiciality. Where for the capitalist the city had become a glorious centre for enterprise and innovation, for the intellectual it had become a centre for disillusion and sordidness. Especially for Hungarian intellectuals Vienna epitomised all that was unpleasant about the modern metropolis. Cushing points out that among the Hungarians there was ‘a suspicion of anything Austrian’. Indeed one of the clearest cultural tendencies in the Monarchy at the turn of the century was the independence of the three main cultural centres, Budapest, Prague and Vienna. Hungarian and Czech intellectuals either ignored or pretended to ignore everything going on in Vienna, as Viennese intellectuals virtually ignored everything going on in Budapest and Prague. All looked to Berlin, Leipzig, Dresden and Paris. Czechs and Hungarians did make exceptions, like Hermann Bahr and, to some extent, Arthur Schnitzler. In Vienna itself, Rogofff asserts, Klimt with his ‘visual ideology’ was con- demning the grand bourgeois and bureaucrat’s values of those who commissioned his works. What has been seen as ‘sensuous and lascivious’, Rogofff continues, is in fact ‘socially polemical, if not explicitly political’. Swales and Vlček come to similar conclusions about Schnitzler and Kafka. Klimt, Schnitzler, and Kafka were questioning institutional and social norms. Like their fellows in France and England, mainstream Austrian and Czech fĳin-de-siècle writers rejected all those values they considered the normal values of bourgeois industrial society, and they did this in the 400 chapter twelve belief that they were the sole purveyors of truth in a society of hypocrisy and vacuous conventions. Like Nietzsche, and before him Stirner, they saw mediocrity all around them. That goes also for the Hungarian poet, Endre Ady, whose attacks on money and the plutocracy may be compared with those of Rodin and Kupka. Rogofff sees in Klimt, and Vlček in most Czech artists of the period, sensualism as a form of social and political protest; sensualism eo ipso contains a rejection of the mediocrity imposed by technological advance. In the Czech context such sensual ism automatically constituted a rejection of the old ideas of patriotism or nationalism. Czech writers of the fĳin-de-siècle rejected Czech or Slavonic flag wagging. They come close to realising that the notion of nation is bogus. If being a good Czech artist meant anything, they stated, it meant being simply a good artist. The word ‘Czech’ was irrelevant. One might parallel that with Cushing’s suggestion that the Ausgleich of 1867 had removed the central theme of Hungarian art, anti-Austrian nationalism, and that in the period this volume examines there were Hungarians who began to think about art without a nationalist message, art which was art, not specifĳically Hungarian art. That was a particularly difffĳicult task for the nationally proud Hungarians, as is borne out by their achievements in the fĳine arts before the fĳirst decade of the twentieth century, indeed, perhaps before 1945 - Moholy-Nagy would be an exception. The Austrian Germans had few of the problems of the Czechs and Hungarians. Before the 1890s they had produced little fĳine literature. They had Nestroy, Grillparzer and the Bohemia-born Stifter, but they did not even hope to vie with the culture of Germany proper. The philosophers they had before the fĳin-de-siècle, Bolzano and Smetana, were very defĳinitely Prague-based. The Austrian Lands did, however, have music. In the 1890s all over Europe music was the art to which all other arts were said to need to aspire. Music produced emotional sensations which apparently could not be described in any other vocabulary than that of music. Furthermore, music seemed to constitute an art form ideally divorced from the sordid reality of late nineteenth-century life. Fin-de- siècle writers sought to go beyond the painterly l’art-pour-l’ artisme of the Pre-Raphaelites and the Parnassists. Rogofff sees in Klimt’s Beethoven Frieze an ‘allusion… to an escape from reality through art, beauty and justice’. And what that flight from reality actually meant for fĳin-de-siècle artists is summarised by Babits in Cushing’s essay; a man who escapes from life to books is not necessarily escaping from life; usually, that escape expresses a thirst ‘for more life than his period and fate have allotted him’. The aesthete artists of the fĳin-de-siècle loudly rejected the usefulness of intellectuals and the future in the monarchy 401 art mainly because the social ideology surrounding them proclaimed the need for usefulness in everything. Turn-of-the-century man was faced with something like mass Thatcherism. Dreams and chimeras were, then, the natural realm for art. One does not have to think of Freud (whose notions on dreams, Farrell says, were almost all old hat), but one should notice the role of dream and delirium in the fĳine arts and literature of the period. Dream was reality, and yet was not. One experienced a dream or a hallucination, and one did not. The dream was the most readily experience able manifestation of the ‘intermediate state’, of which artists of the fĳin-de-siècle made such a cult. The impact in Austria-Hungary of Huysmans’s appreciation of Moreau in A rebours, Pater’s appreciation of Leonardo in The Renaissance, De Quincey’s essays and Confessions, Baudelaire’s psychedelic poems and notebooks, and Flaubert’s almost mediaeval dream-splendid La Tentation de Saint Antoine, is incalculable. Since the cultures of Austria-Hungary were at the same time based on lack of confĳidence, that the influence of Morris (cf. the Wiener Werkstatte) was also strong will not surprise the cultural historian. He will also not be surprised by the only apparently greater paradox that a Hungarian Jewish Germanophone writer, Max Nordau (i.e. Südfeld), should have produced the most influential polemical attack on contemporary artistic trends— Die Entartung (conveniently translated as Degeneration). In dreams Freud found, among other things, the expression of repressed erotic urges, and the erotic was the prime problem for the fĳin-de-siècle artist. Eros was both the leveller and the producer of individualist opportunity. On top of that, the erotic was offfĳicially frowned upon by nineteenth-century bourgeois industrialist society, while the erotic actually tended to rob the individual of his identity, to perpetrate the process of debilitating assimilation the capitalist sought, according to contemporaneous intellectuals, to impose on the rest of the populace. In Swales’s interpretation, Schnitzler shows with his Reigen that ‘all men are equal in the promptings of physical desire’. Rogofff states that Klimt arrived ‘at the view that only the most uninhibited sexuality is a form of expression which could not be confĳined by the bourgeois structures known as civilisation’. Eile points out that, though Przybyszewski states ‘In the beginning was Lust’, he appreciates ‘his favourite sculptor, Vigeland’ for his ability to represent ‘eroticism deprived of any sensuality’. One of Pynsent’s authors, Procházka, paraphrases Nietzsche when he describes the bourgeois prettifĳication of lust, love as ‘an artefact composed of thousands of ruses and self-deceptions’. Long before Freud, Eduard von Hartmann had claimed that the unconscious determined human beings’ sexuality. 402 chapter twelve

Farrell takes Freud’s conception of the unconscious back beyond von Hartmann to Herbart, who, he says, ‘argued that all mental phenomena are the outcome of the action and interaction of ideas which have diffferent properties’. The main subject of art in the Monarchy at the turn of the century was the self. The establishment of the identity of the individual constituted the prime interest of those intellectuals who felt themselves to be victims of institutionalised mediocrity, albeit Freud, as Swales says, ‘challenges the sovereign intactness’ of the self, and helps to make identity ‘a volatile parcel of energies which, both as creators and inhibitors of pleasure, are the only begetters of man’s experience and cognition’. As Farrell puts it, Freud also describes a notional defence mechanism by which the individual human being prevents ‘the quantity of excitation from rising to an intolerable degree’. In his summary of Freud’s teachings (we use that word advisedly, for Freud did set himself up as a guru), Farrell tells of Freud’s belief that the successful overcoming of the Oedipal stage will enable the individual to ‘fuse the sensual and afffectionate aspect of sexuality’. In the London lecture we have referred to ‘Political Doom and Cultural Creativity’, Erich Heller persuasively surmised that the Oedipus complex was not what Freud thought it was. Heller averred that it did not describe ‘the general disposition of young men’, but ‘one of the gifts of the Habsburgs to generations of sons who gave their fathers a position of ultimate authority’, sons who eventually experienced the ‘unavoidable failure of their fathers’. The self, then, was a matter of authority. Swales argues that Schnitzler, as much as Freud, was concerned with dethroning ‘seine Majestät, das Ich’. Rogofff interprets Klimt’s depiction of Truth as a depiction of the deconstruction of ‘human impulses and characteristics… into the components of myths’ which evoke ‘the understanding of a contemporary human Identity’. To strive to understand individual human identity is to reject the levelling inherent in a society guided by technological success. In Eile’s interpretation that clearly lies behind Przybyszewski’s conception of the ‘naked soul’, the state of individual identity which works by ‘intuitive cognition’ rather than by inferior ‘rational and empiri- cal knowledge’. Przybyszewski’s ‘naked soul’, Eile tells us, also contains the idea of the libido and of free-flowing associations which reveal more about the truth of present reality than any positivist assertion. The ‘naked soul’ was free from the nasty nineteenth-century proclivity of producing taxonomies. Przybyszewski’s ‘naked soul’ made itself known through ‘dreams and hallucinations’. The position that the ordinary sensitive fĳin-de-siècle intellectual was put in by such conceptions is adequately intellectuals and the future in the monarchy 403 summarised by Finn’s quotation from Justh’s ‘Keresztutak’ (Crossroads): ‘he was scared to act because he was scared of wanting’; and in Justh’s Fuimus one character is described as being ‘afraid of himself’, perhaps because he ‘searches for self in self’. Fin-de-siècle man sought a defence against the incursions of modern society on the development of the self, but he simultaneously doubted the health of that self. J. P. Stern posits in his Nietzsche (1978) that his subject, because he knows ‘what it means to philosophise against the greatest intellectual and personal odds a man can devise’, fashions ‘a new style of understanding’. Fin-de-siècle intellectuals were mainly concerned with new perception - whether it was Weininger’s sexuality, Kraus’s or Wittgenstein’s perception of the word, Justh’s or Nordau’s or Procházka’s conception of ‘socio-artistic’ degeneration, Schnitzler’s or Masaryk’s perception of moral degeneration, or Freud’s perception of the cure for human inadequacy. Both the ‘plus’ and the ‘minus’ of the 1890s lie in the search for the ‘new’. Rogofff expresses that urge for newness as ‘the freeing of art from traditional or academic restraints’. For the intellectual, any new perception of his self necessarily entailed a re-evaluation of national history. Before the 1890s, the Hungarian or Czech (or Galician Pole or Croat or Slovak) had been lectured on what his national identity was. It included the history of his nation, and his nation’s mythological or mythicised heroes formed a part of his personal identity. While in this period many young Austrian Germans were seeking some sort of pan-German identity, Czechs and, to some extent, Hungarians, were busy criticising standard conceptions of nationality and nationalism. In the fĳin-de-siècle, while conventional Czech writers were consider- ing the largely imaginary horrors of the Baroque period, particularly the early eighteenth century, the historian Pekař (cf. Brušák) and littérateurs like Karásek and Miloš Marten were doing their best to demonstrate that the Baroque period was as Czech as most other periods in the national history. It had not been ‘an age of darkness’. Thus the writers made the fĳirst steps towards a re-interpretation of the myth-clogged so-called National Revival. Just as Czech Modernist writers saw the Czech nation on a course leading to self-destruction, so did Finn’s Justh see the Hungarian nation taking the path of damnation. In his Barbican Centre lecture, HelIer saw the period in Austria- Hungary as a period of ‘radicalisms and asceticisms’, and behind all the intellectual fĳigures considered in this volume were amoralists. Some of them may have spent a great deal of their time simply describing decay, but always present was their desire to. imagine paths out of their decay. 404 chapter twelve

Of those included in this volume only Justh and Freud created answers, some form of ideology. Justh saw a possible salvation for the Hungarian ruling classes in their inter-marrying with the peasantry. (There was nothing new about that, though Justh’s elaboration of the idea might be called new. One thinks of the contemporary Slovak Hviezdoslav’s long narrative poem, Ežo Vlkolinský (1890), where, uninfluenced by Justh, just such intermarrying is propagated for the survival of the Slovak branch of the Hungarian petty nobility.) Justh believed that an ascetic new nobility would take the Magyars to a fuller, more Hungarian, but also more European, life. Justh’s asceticism is epitomised by his interest in the Nazarenes and his unselfconscious rejection of nobles’ high living. Eile speaks of the satanist Przybyszewski as essentially a moralist. Pynsent speaks of Procházka’s moral judgement of the Czech national inferiority complex. It is, perhaps, hardly surprising that this Austro-Hungarian age of ‘radicalism and asceticism’ should have played such a large role in the creation of the twentieth-century Avant-garde. Przybyszewski became one of the creators of Expressionism. Many 18908 poems by Karasek look more Expressionist than Decadent. Dadaism. though it can be traced to other, pre-war Central European sources (cf. Vlček), was ‘offfĳicially’ set in motion by a Romanian. French Surrealism without the influence of Freud is unthinkable. The culture of Austria-Hungary at the turn of the century has done as much or more than any other culture to shape the thinking of twentieth-century European man. This collection of essays is intended to lay bare some of the roots of that phenomenon. CHAPTER THIRTEEN

CHURCH-STATE RELATIONS AND CIVIL SOCIETY IN HUNGARY: A HISTORICAL PERSPECTIVE

The Need for a Historical Perspective

The past offfers perspectives on what is permanent and what has changed. If political analysis confĳines itself to the present it will breed a myopic view of society and its prospects. In the history of modern Hungary the past and the present are brought together by the endeavour to create a west European type of civil society. Nineteenth-century Hungarian politicians and intellectuals strived to attain that social order and a century later their successors are still groping for it. The reform of church-state relations in the nineteenth century was just as important a part of the endeavour to create a civil society as it is now after the collapse of Communism. It would be wrong to assume that the Communist system of church-state relations was entirely the product of the post-war regime. The system had a good deal less to do with the Communist form of government and ideology and a good deal more afffĳin- ity with the legal and political traditions of eastern Europe than is generally assumed. Before the Second World War most of the Churches in Hungary had enjoyed privileges, legal rights and internal autonomy on a far wider scale than that to which they were reduced after 1948. The ideological conflict between nineteenth-century liberalism and religion was trifling compared with that between Marxism-Leninism and religion. Living under the barrage of fĳierce anti-religious propaganda, the Churches were subject to the sternest restrictions even after the 1956 revolution when the regime had become more tolerant towards its ideological enemies. Diffferences in the treatment of the Churches before and after the Communist takeover, though fundamental, should not obscure the fact that important principles on which church-state relations rested after 1948 were similar to those on which they had rested in the past. The turning point came with the collapse of the Communist system. In 1989–1990 church-state relations were not restored to what they had been before 1949. The signifĳicance of Law IV of 1990 “On the Freedom of Conscience and Religion and On the Churches” can be established only 406 chapter thirteen by looking at how church-state relations have evolved to become what they are today. We need not move back further than the nineteenth century, the age in which liberal politicians regulated the position of the Churches. It provides a most instructive historical perspective. A historical perspective sheds light on the similarities between the aspirations of nineteenth-century Hungarian liberals and the country’s recent liberal transformation. Politicians today, as in the last century, aspire to create a West European type of civil society in which the individuals, endowed with the same rights and duties, are equal and are subject to a single system of statute laws. Politicians today insist, as they did in the nineteenth century, that the law should treat all religions equally. Today the chances of accomplishing equality in church-state relations are better than they were a century ago. For, as we shall presently see, there were great diffferences in the position of the Churches and religions towards the state between Hungary and western Europe. Until quite recently diffferences between the eastern and the western half of the Continent in this, as in many other respects, were considerable.1 In West European civil society relationships between the state authorities and organised social groups were largely governed by statute laws and other legal norms, which applied equally to all. In Hungary and other East European countries customary laws predominated. Here the motley of government ordinances, instructions, prohibitions, licences as well as agreements and ad hoc arrangements—the product of bargaining between the civil authorities and individual Churches—generated a diversity of administrative practices and insecurely held privileges. These permitted each Church to function within its own circumscribed area of religious life. In order to explain church-state relations, fĳirst a general feature of the legal system, the autocratic principle of the law should be examined.

The Autocratic Principle of the Law

The right of the government to issue decrees on its own authority (motu et potestate proprio), which I call the autocratic principle, informed the relationship between the subject (later citizen), on the one hand, and the political authorities in Germany and the Habsburg Monarchy, on the

1 Only the western parts of eastern Europe have so far demonstrably moved away from the traditional patterns of church-state relations although the aspiration to do so exists in the whole region. church-state relations and civil society 407 other, before and during the nineteenth century. As we shall presently see, the autocratic principle, which rested on a presumption of the law, obstructed the freedom of the subject. Liberals in Central Europe, however, found an efffective remedy to counteract the consequences of the autocratic principle. A convenient way to examine the autocratic principle is to contrast the presumption of the law as regards the citizen’s rights in western Europe with the presumption of the law on the eastern side of the Rhine. In the law of evidence, the rebuttable presumption of law (presumptio juris) is either on the side of the citizen (and the group of citizens) or on that of the state authority. In the liberal states of western Europe, where the enforcement of civil rights was concerned, the presumption was on the side of the citizen. In conflicts between state offfĳicials, on the one hand, and the citizen and the group, on the other, the onus rested on the offfĳicial to demonstrate that his action was authorised by statute law.2 In the Habsburg Monarchy, Imperial Germany and elsewhere, the presumption of the law was on the side of the state authorities: in case of conflict, the burden of proof did not rest with the offfĳicial but with the opposite side. The citizen (or the group), seeking legal redress against an alleged wrong done by the state offfĳicial, had to produce evidence that the law expressly protected his interests on the point at issue. This diffference in the presumption of the law between the two parts of Europe had momentous consequences. In western Europe, where the law was silent, the citizen was said to be free. In the legal systems beyond the Rhine, the opposite prevailed: where the law was silent, the individual and the social group were not expressly protected by laws, it was the state authorities who were ‘free’.3 We have now reached the heart of the matter. The state authorities in central and eastern Europe could lawfully issue decrees and act at their own

2 This was common ground among West European natural-law school philosophers. The principle went into the 1789 Declaration of the Rights of Man and Citizen: ‘All that is not forbidden by law cannot be prevented, and no one can be forced to do what the law does not prescribe’, Western Liberalism, E. K. Bramsted and K. J. Melhuish (eds), London, 1978, p. 228. This was the presumption of the law on which justice was administered in the liberal states of western Europe in the nineteenth-century. 3 The widely-known bon mot, which originated among German law students in the nineteenth-century, had more than an element of truth in it: ‘In England ist alles erlaubt, was nicht verboten ist. In Deulschland ist alles verboten, was nicht erlaubt ist.’ The intellectual setting of the authoritarian state in Germany and the corresponding social attitudes associated with the ‘ostelbische Mentalität’ were discussed by Hans-Ulrich Wehler, Das Deutsche Kaiserreich (1871–1918), Göttingen, 1973, esp. pp. 105–107 and 133–34. 408 chapter thirteen discretion in matters which interfered with the individual and the group. Enacted statute law restricted the area in which the authorities could lawfully act. And beyond the restrictions which statute law imposed on the offfĳicial lay the sphere in which the authorities were either free from any legal restrictions in their dealings with the citizen (freie Verwaltung) or the government reduced the discretionary powers of the subordinate offfĳicial by issuing a decree or order, an action to which it had a prima facie right.4 This right, the autocratic principle of the law, recognised by jurists before as well as after 1848,5 was an accepted part of the Hungarian legal system. In Art. XII of 1790 the monarch promised to issue edicts only when the law was otherwise unafffected6 and to exercise ‘executive power’ in sensu legum. Law III of 1848 enacted that the executive power was to be exercised by the monarch through an ‘independent Hungarian ministry in the sense of the law’.7 The wording allowed the survival of the autocratic principle. Section 19 Law IV of 1869 ordained that judges had to proceed on the basis of statute law, rendelet (government decree), ‘based on statute law’,8 and lawful custom. The debate in the House over the section was instructive in that it clearly revealed that the phrase ‘based on statute law’ merely required that the decree should not contravene statute law.9 The judge, before application, had to establish whether or not the rendelet was lawful and he invariably applied government rendelet whenever in his view it did not conflict with consuetudo, the enactments

4 Georg Jellinek, Gesetz und Verordnung, Freiburg, 1887, pp. 255–56. Jellinek discussed the right in the context of the distinction between formal and substantive law, Pt. 11, Section ii, ch. I, pp. 226 fff. 5 Anton Virozsil, like others, argued that the praesumptio juris (die rechtliche Vermuthung) was, in doubtful cases, on the side of the king and that the monarch’s government possessed the right to issue decrees as long as it did not conflict with statute law, Das Staats-Recht des Königreichs Ungarn, Pest, 1865, n, sections 36 (esp. p. 5) and 46; Antal Cziráky, less clear on the question of presumptio juris, stoutly endorsed the monarch’s right to issue decrees, Juris publici regni Hungariae, Buda, 1851, Tom II, sections 323 and 442. Pál Szlemenics listed some ordinances enacted under ‘special royal powers’ which, ‘without ever being accepted by the diet have become a part of judicial practice and have been continuously in force’, Törvényeink története, Buda, 1860, p. 136. On the attitudes of jurists after 1867 see below note 10. 6 in rebus legi conformibus 7 Sections 2 and 3. 8 a törvény alapján keletkezett 9 The Central Committee of the House replaced the ministerial draft with the requirement that the rendelet was ‘issued on the basis of specifĳic authorisation by the legislature’. The House, however, restored the ministerial draft, Kepviselőházi irományok, I, pp. 59, 121 and Nap1ó, 9 July 1869, n, pp. 486–91. church-state relations and civil society 409 of decreta, or statute law.10 Under this legal system, based on the autocratic principle, individual rights were in essence ‘concessions’ from the state made either through independent executive action or by legislation. Thus the old question of sed quis custodiet ipsos custodes acquired special signifĳicance. The German and Austrian liberals’ remedy against the consequences of the autocratic principle was the Rechtsstaat, the State based on the rule of law. Liberals demanded formal declarations and entrenched civil rights as constitutional guarantees. They also insisted on detailed and comprehensive statutory provisions that covered every conceivable situation in order to establish freedom for the individual. Local self-government, participation in the administration of the commune, was another guarantee, and liberals were especially eager to institute administrative courts–efffective instruments of redress for the individual and the group against state interference. These were the liberal remedies in Central Europe whose realisation in the late nineteenth-century mitigated the dangers to liberal freedom inherent in the autocratic presumption of the law. Hungarian constitutionalists applied some of the liberal remedies to counterbalance the efffects of the autocratic principle. They introduced equality before the law. Also, they passed a few short laws which protected the right to private property, freedom of movement, work and contract, and other personal freedoms. Their record on civil rights, however, turned out to be patchy. Above all, they failed to create a statutory framework and provide sufffĳicient institutional guarantees to protect civil rights in order to mitigate the efffects both of the autocratic presumption of the law and of the overwhelming social power of the landowners over the rest of the population.

The Legal Position of the Churches

The autocratic principle obtained a powerful, although by no means exclusive, influence on the legal position of the Churches. The liberal objective was the creation of a legal order which safeguarded liberty of

10 Consuetudo, as Béni Grosschmid argued, in addition to statute law set limits to the enforceability of a royal ordinance but where those limits lay was left entirely unclear. Magánjogi előadások, Budapest, 1905, pp. 125–29. Győző Concha considered even the government decree which had been challenged by an adverse resolution of parliament to be valid law for the law courts, Hatvan év tudományos mozgalmai között, Budapest, 1928, I, pp. 405 and 416f, and see Kálmán Molnár, Kormányrendeletek, Eger, 1911, esp. 34–43. 410 chapter thirteen conscience and equality of religions. Yet liberal effforts led to unexpected results. As regards religion the customary rights of society interacted with the customary laws of the state: the enforced ministerial and local rendelets. In addition, statute laws protected religious rights as they had done for centuries under the ancient constitution. The interaction of these three legal sources after 1867, paradoxically in the liberal age, did not create equality but a hierarchy of religious classes. In multi-denominational11 and polyglot Hungary religion, nationality and social class sometimes coincided. The coincidence reinforced cultural diffferences and created in parts of the country what J S Furnivall described as ‘plural society’.12 The coexistence of religions was regulated by the crown and by statute law. The monarch’s powers in religious matters were wide, were partly outside parliament’s control and, being largely customary, were undefĳined. The Roman Catholic Church was fĳirmly tied to the crown through the ius patronatus, the monarch’s claim to make church appointments.13 The Church enjoyed the full protection of the monarch at the expense of its independence which was eroded in the late eighteenth-century through the Erastian, Josephist, as they were called, policies of the civil government. The Protestant Churches, though in the past hemmed in by restrictions, were self-governing communities, whose pastors and elders were elected by the congregations. The Calvinist Church was as closely associated with the national cause as the Roman Catholic Church was held to be a promoter of Habsburg interests.14

11 Half of the kingdom’s population belonged to the Roman Catholic Church. The rest were Uniate, Eastern Orthodox, Calvinist, Lutheran and Jewish. There were also Unitarians and a large number of small religious communities, the so-called ‘sects’, see statistics in Moritz Csilky ‘Die römisch-katholische Kirche in Ungarn’ in Adam Wandruszka and Peter Urbanitsch, Die Habsburgermonarchie 1848–1918. IV, p. 302 and 282–83. 12 In many districts elements of a ‘plural society’ existed in J. S. Furnivall’s sense of the term. For instance, in parts of the Highland Slovak Roman Catholic peasants, German Lutheran burghers and Hungarian Calvinist gentry lived together; cf. J. S. Furnivall, Colonial Policy and Practice, Cambridge, 1948, pp. 117–18 and esp. 303–306. 13 According to Werbőczy the pope had the right only to confĳirm the appointment made by the king, Tripartitum, Section 1, Tit. XI, Pt. I; Ferenc Eckhart, Magyar alkotmány- és jogtörténet, pp. 166–67, 297f; Andor Csizmadia, Rechtliche Beziehungen von Staat und Kirche in Ungarn vor 1944, Budapest, 1971, pp. 48–50. After 1867, next to foreign policy and army afffairs, it was in regard to the Roman Catholic Church that the monarch’s autocratic rights were best preserved. The appointment of prelates was the very fĳirst item on the list of subjects compiled in 1867 which required the monarch’s ‘preliminary sanction’ so called. See Emma Iványi, Magyar minisztertanácsi jegyzőkönyvek az első világháború korából 1914–1918, Budapest, 1960, pp. 531–32. 14 The stereotype of the Catholic Church being indiffferent to the national cause was largely false; see László Péter, ‘Hungarian Liberals and Church-State Relations (1867–1900)’ in Hungary and European Civilisation, ed. György Ránki, Bloomington, 1989, pp. 85–86. church-state relations and civil society 411

The degree of autonomy the various Churches attained difffered widely, although their ultimate control by the crown and their supervision by the civil authorities invariably set limits to their self-government. For the monarch had, since the eighteenth-century, claimed ius supremae inspectionis and for a much longer time, iura circa sacra which, like the ius supremae patronatus, exercised over the Roman Catholic Church, amounted to a collection of autocratic practices.15 Most of the Church syn- ods and congresses deliberated in the presence of a royal commissar or an inspector and their more important decisions were implemented only after they had been approved by the monarch or his minister. The crown approved the appointments of the prelates in the Orthodox Church16 and ‘confĳirmed’ the appointment of Transylvania’s Calvinist bishop.17 No Church was ever separated from the state. The Churches themselves did not want separation. They wished to be legally recognised, to be endowed with church statutes, to be entitled to legal and administrative protection by the state, including the right to seek help from the civil authorities to enforce their own regulations and to maintain internal discipline.18 Above all, Churches expected subsidies from the government to pay their clergy and support their schools. The system, which liberals were set to reform, with its highly fragmented and ad hoc arrangements, was the product of the Churches’ evolving customary rights combined with direct ministerial intervention based on the autocratic principle.

Equality of Religion in Legislation

Liberty of conscience and the protection of free worship by statute law were indispensable parts of the liberal agenda. Furthermore, a

15 Sándor Konek, Egyházjogtan kézikönyve, Pest, 1867, pp. 141–47; Andor Csizmadia, A magyar állam és az egyházak jogi kapcsolatainak kialakulása és gyakorlata a Horthy korszakban, Budapest, 1968, pp. 93–94. 16 Maria Theresa’s Systema consistoriale (1779), summary by János Prodán, ‘Az államfő legfelsőbb felügyeleti joga a magyarországi autokefális görögkeleti egyházban’, in Notter Antal emlékkönyv, Budapest, 1941, pp. 949f. The approval of appointments did not become a mere formality after 1867. When the monarch, on the advice of the government, refused to approve the elected prelate, Congress was forced to select another instead. See László Katus in Magyarország története 1848–1890, ed. Endre Kovács et al, Budapest, 1979, VI, p. 1339. 17 Also, the Bishop of the Calvinist Church in Transylvania had to take an oath of allegiance to the crown: Church Statutes, Section 178, Sándor Dárday, Közigazgatási törvény- tár, Budapest, 1893, II, p. 174 (30). 18 The ius advocatiae, applied to the Protestant Churches, was comparable to the brachium granted to the Catholic (and to the Eastern Orthodox?) Church; see Section 4 of the Statutes of the Calvinist Church, ibid, p. 174 (1). 412 chapter thirteen

distinguishing mark of Hungarian constitutionalism was the belief in the legal equality of religions. In contrast to nationality, this principle included the granting of autonomy by law equally to all the established Churches of multi-denominational Hungary. Two attitudes, anti-clerical- ism and the equality of Jews, were most closely associated with what liberals stood for. Anti-clericals—particularly of the Protestant liberal opposition—demanded after 1867 that the Roman Catholic Church be stripped of its privileges, that its property be secularized or, at least, the Roman Catholic funds19 be absorbed into state revenues and be shared out equally among the Churches. But there were Roman Catholic liberals who,–mostly on the government side- instead of antagonising their Church, hoped to reform it from the inside. Their aim was Church autonomy: the introduction of lay participation in the Catholic Church which would then administer Church funds. Jewish equality in 1867 had a more general appeal to the literate public and to parliament than anti-clerical- ism. It concerned fĳirst the demand that Jews’ civil and political disabilities be removed and in these respects Jews were emancipated in 1867 by Law XVII. The two short sections declared that the Jews ‘in respect of civil and political rights are equal’ to Christians and that ‘all contrary law, custom and rendelet are thereby abolished’.20 Hungarian liberals also understood by the equality of the Jews that their religion should be recognised by law and that anti-Semitism in politics should be resisted. These attitudes came naturally to politicians in Hungary where Protestants had demanded freedom for their religion for well over two centuries before the liberal age. The diet of 1790 reafffĳirmed the Protestants’ ‘liberties’; it also established the civil and political rights of the Orthodox Christians and recognised the privileges of their Church.21 These and other

19 The ‘funds’ accrued from intercalaris revenues, private donations, as well as from the confĳiscated properties of former religious orders, were administered underius patronatus by the government as a trustee, so to speak, for the purposes of paying the clergy and the maintenance of Church schools. After 1867, the funds were managed, in co-operation with the hierarchy, by the Ministry of Religion (the kultusz) and Public Education; Moritz Csáky, Die rom.-kath. Kirche, pp. 272–75; László Csorba, ‘A katolikus autonómia és a közalapok problémája a századforduló Magyarországán’, Protestáns Szemle, 1992 April- June, pp. 116–36. 20 The Bill, passed by the House egyhangúlag (nem. con.), on 20 Dec. 1867 (Képv. jkv., III, no. 1524), after the proposal of the House’s Senior Chairman, the Protestant Zsigmond Bernáth (21 June 1867, Kepv. irom, II, p. 230) had been approved by the House. Deák had urged the ministers to act on 26 June 1867; Manó Kónyi, ed., Deák Ferencz beszedei, V, pp. 114–15. On the signifĳicance and the limits of Law XVII of 1867 see László Gonda, A zsidóság Magyarországon 1526–1945 (hereafter: A zsidóság), Budapest 1992, pp. 116–19. 21 Arts. XXVI and XXVII of 1790. church-state relations and civil society 413 measures had been antecedents to the introduction of the liberal principle of religious freedom which was proclaimed (if, for the moment, one disregards the small print) by Law XX of 1848: ‘Complete equality and reciprocity without any discrimination are hereby declared among all the lawfully received religious denominations of the fatherland (Section 2).’

Nineteen years later the minister in charge of religion (the so-called kultusz) and public education was, as he had been in 1848, József Eötvös. The minister and parliament were as committed to religious freedom and equality after 1867 as they had been in 1848. As we fĳind from the Journal, the slogan which invariably won ‘general approval’ in the House–perhaps because it was hardly ever used in any specifĳic sense–was ‘free church in a free state’.22 The House on all sides expected the government to act ‘in the spirit of 1848’ and Eötvös needed no urging. He had been a champion of the liberty of conscience and of the equality of all religions for decades, insisting that these principles should be realised through generally appli- cable enacted statute law.23 In June 1868 Eötvös, speaking in the House for the Cabinet, gave a commitment to bring in legislation to implement what Law XX of 1848 had already promulgated. But the reform of the Roman Catholic Church had to come fĳirst; comprehensive legislation should come only afterwards. Meanwhile temporary measures would be introduced.24 The Preamble of Eötvös’s bill (Law LIII of 1868) On Reciprocity Between the Lawfully Received Christian Religions declared: Until the equal rights of religions25 are regulated in general, as regards the reciprocity between the Christian religions, by virtue of Law XX of 1848, the following are enacted. The Law provided a few regulations dealing with the conversions normally attending mixed marriages between Christians.26 The measure was small beer after the bold principles pronounced in 1848 and the House accepted the Central Committee’s plea to instruct the ministry to bring in

22 The liberal slogan, which appeared in Hungary in the 1840s, was equivocal; some understood by it the Church’s freedom from the State, others the State’s freedom from the Church. 23 In 1843; Eötvös was already an ardent promoter of a general enactment on religious freedom and equality in his speech in the Upper House on 11 July 1843; József Eötvös, Kultúra és nevelés, Budapest, 1976, pp. 85–86 and 512. 24 Eötvös’s answer to a question set out government policy on 24 June 1868, Képv. napló, VIII, pp. 137–39. 25 a vallásfelekezetek egyenjogúsága 26 Christians had the obligation to be members of a received Church (Section 20). 414 chapter thirteen legislation during the following parliament in order to ‘establish the equal rights of religious denominations in general’ and to ‘remove all the [legal] obstacles’ to the realisation of the principle.27 The Andrássy Cabinet and its successors, however, dodged this obligation28 partly because the attempt to reform the Catholic Church ran into the sand.29 After a long interval Law XXXI of 1894, then, established civil marriage and Law XLIII of 1895, On the Free Exercise of Religion, enacted general principles and tacitly allowed the citizen to adhere to no religion. The fĳirst section clearly proclaimed the liberty of conscience with great aplomb: everyone was free to profess and follow any creed or religion, and practise it within the limits of the law and of public morality: no one was to be obstructed in practising his religion as long as it did not contravene the law, or public morality. And no one was to be compelled to perform religious acts against his beliefs. The rest of the law, however, as we shall presently see, did not establish the statutory framework of church-state relations. Instead it whittled away at the very principles the fĳirst section had been at pains to establish: it systematised the hierarchy of religions—the motley of privileges based on customary law, royal decree and ministerial ordinance. Thus the law after 1867 was, in some respects, moving towards the ideal of confessional egyenjogúság (equality of rights). But Hungarian liberals at no time established either liberty of conscience or the equality of religions. Moreover, unwittingly, for it was not quite understood at the time, liberals created a discriminatory class system for religion which was an afffront to the very principles they professed. A striking fact which characterised the system was the limited role that legislation played in shaping

27 Képv. irom, VII, pp. 3–7. 28 Eötvös himself never abandoned the plan to secure the equality of all religions by the enactment of a comprehensive statute law. He said so repeatedly in the House in November 1869. Képv. napló, III, pp. 181–82, 187–88, and 198, and on 7 April 1870 he brought in a new Bill which, however, never got further, ibid, VII, p. 388; see also his letter to Prince Primate Simor on 19 December 1869 in József Eötvös, Levelek, Budapest, 1976, esp. p. 634; also Andor Csizmadia, A m. állam es egyh., p. 84. Eötvös’s effforts to bring in legislation on the freedom of religion was carried on in the House by the ‘48er leader Daniel Irányi who submitted a 12-section bill (6 July 1869), Képv. irom, I, pp. 292–93, and subsequently demanded the introduction of civil marriage and the enactment of the freedom of worship at the beginning of each parliament. A most articulate promoter of religious toleration, Irányi spoke up in the House for the so-called sects, see László Kardos and Jenő Szigeti, Boldog emberek közössége, A magyarországi nazarénusok, Budapest, 1988, p. 203 and passim. 29 László Péter, Hung. Liberals, pp. 85–91; on the other political obstacles of comprehensive liberal church reform, pp. 82–85. church-state relations and civil society 415 church-state relations except in the mid-1890s. Instead, the customary rights of the Church and of the civil authorities appear to be the decisive factors. The growing importance of ministerial rendelets—the customary law of the ministry—was a signifĳicant part of this pattern.30 By the end of the century, the Roman Catholic Church was more dependent on the government than it had been in the 1860s;31 its dependence grew through episcopal appointments.32 Church funds were handled by the offfĳicials of the kultusz ministry, a tutelage which diminished the Church’s ability to resist the government’s intervention in its afffairs. Eötvös and his successors, as the crown’s kultusz ministers, were more successful with the Protestant and the Eastern Orthodox Churches in setting them on the course towards internal self-government. The powers were there in 1867 for Eötvös to turn to liberal purposes: they were vested in the crown by custom and exercised through the kultusz minister who either countersigned the royal enactments or acted with the monarch’s prior approval.33 Only exceptionally did Eötvös turn to parliament in order to enact measures. Parliament never saw most of the enactments

30 After the proclamation of papal infallibility in July 1870 Eötvös, as kultusz minister, in order to ban the promulgation of the papal bull in Hungary, bypassed parliament and declared by rendelet that the ius placetum (a legal dinosaur) was in force; László Péter, Hung. Liberals pp. 90–91. Another example was the elkeresztelés (coined on wegtaufen) crisis which grew out of the interpretation of Eötvös’s law on mixed marriages in the 1880s. Eötvös’s successor Ágoston Trefort issued a rendelet which gave a new, widening, interpretation of Section 12 of the Law concerning sanctions against elkeresztelés which conflicted with court rulings. And when the courts did not heed the ministerial pronouncement another kultusz rendelet transferred all elkeresztetés cases to the administrative authorities. The minister of the Interior then fĳined and sent to prison Catholic priests forelkeresz- telés, ibid, pp. 93–102. 31 While the anti-clericals—noted a Catholic historian—hoped to ‘separate the State from the Church, they would not allow the Church to separate from the State but wished to make it more subordinate to it than ever’. Gábor Salacz, Egyház és állam Magyarországon a dualizmus korában 1867–1918, München, 1974, pp. 53–54. 32 Minister Trefort used political muscle in the 1880s to hoist government supporters into episcopal sees especially for dioceses in the nationalities’ districts; cases discussed by Ferenc Eckhardt, A püspöki székek és a káptalani javadalmak betöltése Mária Terézia korától 1918ig, Budapest, 1935, pp. 55–63. Episcopi hungarici sunt magis politici quam cathol- ici was apparently a general view in the Curia of the Hungarian prelates in the late 19th century, quoted by Gábor Salacz, Egyház, p. 75; see also Gyula Szekfű, Magyar tört., V, pp. 522–23 (similar points). 33 Eötvös, in responding to a question, frankly admitted in the House on 23 February 1869 that, authorised by the monarch, he had settled a large number of important matters without any instruction from parliament on the sole authority of the monarch: József Eötvös, Kultúra, pp. 229–36. On the background of the distinction between those enactments which were signed by the king (rescripts) and those which were not (decrees), see Antal Cziráky, op. cit., Section 656. 416 chapter thirteen and even the Cabinet did not discuss many of them. Some measures had been countersigned by the minister after consultations with the Churches and promulgated by the monarch as royal decrees. A royal decree—a kind of contract between the crown and a Church as distinct from statute law or ministerial rendelet—guaranteed security to the Church. Other measures appeared as ministerial ordinances or rescripts, with express reference to the monarch’s authorisation in the Preamble. But frequently the kultusz minister introduced measures through ministerial ordinance after consultation with religious leaders and normally with the king’s prior approval.

The Three Classes of Religion

All in all, liberals, by removing legal disabilities, embarked on a process of equalization, but this development did not lead to equality and reciprocity among the Churches. In fact, the incremental changes introduced by kultusz ministry rendelets and statute laws as well as by royal rescripts and by social custom—which remained a potent source of law—led to a graduated system of privileges. The law offfered protection to the Churches, recognized old and conferred new rights on them., including that of self- government. The Churches received subsidies in order to carry out ‘state tasks’: keeping the birth, death and marriage registers and running most of the schools in the country. This process had two important consequences. First, Churches were brought increasingly under ministerial tutelage; second, church-state relations were not brought under a common statutory system but fell into a hierarchy of legal classes through the evolution of society’s customary law and of executive action—the customary law of the state. By the end of the nineteenth century, a system had come into existence which was founded on the three legal classes of ‘received’, ‘recognised’ and ‘tolerated’ religions.34 Statutes recognised these classes without, however, providing defĳinitions for them.

Received Religions

The class of received religions was generated by nineteenth-century customary law; statute law took cognisance of it, and used it for its own

34 Bevett (recepta religio), elismert and megtűrt. church-state relations and civil society 417 purposes. Article XXVI of 1790 referred to the Lutheran and the Calvinist Churches as in sensu pacifĳicationum receptis.35 ‘Received religion’ was, then, used by the legislator in the nineteenth-century. Law IV of 1844 declared that non-nobles of ‘any of the lawfully received religions’ could possess ‘noble property’ (i.e. land) and Law V established the principle that non-nobles of ‘any of the lawfully received religions’ were capable of holding public offfĳice. Signifĳicantly, the law did not say which religions belonged to the class of received religions.36 Section 12, Law V of 1848 established parliamentary franchise for (male) persons of ‘the lawfully received religions without restriction’, yet again, the law did not say which Churches. The above cases speak loudly of the prominent place that received religion, as a legal class, acquired in the Hungarian social order. Yet a search through the Corpus Juris Hungarici would fail to disclose either the meaning of the term, or the rights that belonging to a received religion conferred on a person, or provide a list of the Churches to which the class applied. There were only two cases in which statute law ‘received’ a particular religion: the Unitarians were received by Law XX of 1848, and the Jewish religion by Law XLII of 1895. The Orthodox. Church was habitually accorded the status of received religion in the nineteenth-century on the strength of the autonomous rights recognised by statute law in 1790 and 1792,37 without ever being declared by statute law to be ‘received’. Again, Law XX of 1848 declared ‘complete equality’ among the ‘lawfully received religious denominations’ without any explanation as to which religions were to be included.38 Nor did Eötvös feel any need to enlighten the House in this regard when in the autumn of 1868 he submitted the bill which became Law LIII of 1868 ‘On Reciprocity Between the Lawfully Received Christian Religions’. It was common knowledge that at the time the Catholics of all rites, Orthodox Christians, the two large Protestant Churches, and the Unitarians qualifĳied; it was not quite (or not yet) communis opinio. For the Catholic Church never expressly abandoned its

35 Section 13, the context implies the Lutheran and the Calvinist Churches which are contrasted with the Catholic Church. The section alludes to the Vienna Peace of 1606. (Ad primum art.), Art. 1. of 1608 ante cor. and to Section 5 Art of 1647. The influence of the Transylvanian legal term recepta religio is very probable. 36 The Roman Catholic Church claimed to be avita rather than recepta religio, yet the Law did not, of course, mean to leave out Catholics. 37 Art. 27 of 1790 and Art. 10 of 1792. 38 Opposition to the emancipation of the Jews (the Judenkrawalle in the larger towns) was probably the chief reason why egyenjogúság was confĳined to the received religions; see LajosVenetianer, A magyar zsidóság története, Budapest, 1986, pp. 166f. 418 chapter thirteen claim to be the avita and haereditaria religio rather than just one of the received religions.39 Communis opinio, court rulings, and the kultusz ministry together, as makers of customary law, shaped the views on received religion. In a long-forgotten yet illuminating ministerial rendelet to the town of Pest as regards the status of the Nazarenes, Eötvös pointed out that the Nazarenes had not been lawfully received, and that ‘our laws concede (engednek) rights only to received religions and only with them can the government communicate offfĳicially’.40 Eötvös’s successor, Trefort, in 1887, insisting that the Roman Catholic Church was a received religion, explained that The term ‘received religion’ in public law means that the religion is placed under the protection of the law:41 it receives legal protection and guarantee of its rights; furthermore it means that those professing that religion are endowed with certain religious and political rights.42 This defĳinition was too loose and it had to be; any other stipulative defĳini- tion would have run into difffĳiculties. A typical product of customary law, the position of each of the received religions difffered from the rest.43

39 Sándor Konek, a leading jurist on Church Law, claimed in 1867 that the Roman Catholic Church ‘could be described as the state church’, which he distinguished from the ‘received religions’; op. cit., Section 52. A decanal meeting in Veszprém County passed a resolution in October 1887 to the efffect that the Catholic Church was still avita religio rather than recepta religio, and other districts expressed support for the resolution. Trefort then issued an ordinance on 28 December 1887 in which the minister insisted that the Catholic Church was a received religion, Ernő Nagy, Közjog, 1891, pp. 100–101. 40 On 13 August 1868, Sándor Dárday, op. cit., 11, p. 27. 41 törvényes oltalom 42 See note 39 above. 43 Jewish religion between 1871 and 1895 and the Muslim religion after 1916 were protected by the law without being received. Recognition by statute law rather than by rendelet does not work as a criterion, nor does the possession of self-government (some non-received Churches had it while the Catholic Church did not). Nor did a necessary link ever exist between received status and political representation. The law never received the Roman Catholic and the Eastern Orthodox Churches yet they possessed political representation in the Upper House, whereas the three Protestant Churches before 1885 did not (although the Unitarian Church had been received for centuries in Transylvania). Jewish church leaders had been personally appointed members of the Upper House after 1895. The Jewish religion was given representation by Law XXII of 1926 when the Upper House was restored. Law XXVII of 1940 rescinded the provision of Jewish representation, though the Jewish religion was deprived of its received status two years later by Law VIII of 1942. Received religions were given administrative assistance by the state authorities in the collection of church taxes (frequently lumped together with the state tax) and in enforcing internal discipline in the Church. These rights and practices developed out of the ancient brachium saeculare and the ius advicatiae and were, to a diffferent extent in each case, extended to the received Churches in the nineteenth-century. The government supplemented the salaries of the clergy, where this seemed necessary, and provided subsidies to maintain schools. The kultusz ministry handled all the disputes arising out of these church-state relations and civil society 419

A religion was ‘received’ if the public and the authorities regarded it as such–something that the minister could not say. For constitutional lawyers and historians, the discrepancies–so far as they noticed them at all–appeared as anomalies which were sooner or later rectifĳied. But far from being the anomalies of a statutory system, they were the haphazard arrangements which one would expect to see in a partly customary legal order in which the efffects of the autocratic presumption of the law were not mitigated by general yet detailed statutory provisions.

Tolerated Religions

Churches which customary law in 1867 did not treat as being received were merely tolerated by the authorities. This was the underside of the Hungarian liberal record. This course followed from the autocratic principle of the law towards which the liberals’ attitude was ambivalent. Eötvös and Deák sometimes clearly asserted the liberal principle that an executive order was lawful only if it was expressly authorised by statute law;44 at other times, at least implicitly, they endorsed the autocratic principle. In offfĳice, the liberals were flexible: they tried to circumvent the autocratic principle by conferring ‘recognition’ on non-received religions as a ‘concession’ by the State. But the class of recognised religion did not yet exist in 1867. Nor did any general statutory enactment, like fundamental laws, secure personal freedom in Hungary. There was not even a law of association that might have been applied to Churches. The local authorities and the kultusz ministry arrangements, without the participation of the courts. These privileges and practices were the consequences of a Church’s received status rather than the reasons for a particular religion being included in the class. 44 Eötvös used liberal statutory argument in the House on 9 December 1869 in his answer to the Serbian member Miletić, who had complained that the government had allowed the Patriarch to dissolve the Congress of the Serbian Orthodox Church. The government, Eötvös said, had proceeded on the basis of Law IX of 1868 and had refrained from interfering in the matter ‘because it is not called upon and authorised to do so by law’, Képv. napló, IV, pp. 63–65. For another example, see Eötvös’s letter to Primate Simor on 19 December 1869 in Eötvös, Levelek, p. 630. Moreover, Eötvös was a fĳirm adherent of the liberal principle that the minister could not lawfully impose a legal obligation on the citizen without being authorised by statute law; e.g. his attitude to compulsory education: speech in the House on 23 June 1868, Képv. napló, VIII, p. 128. As regards the property of the subject Eötvös unequivocally rejected the idea that the minister had administrative power at his disposal without statute law, although he himself had to arbitrate sometimes between the rival claims of townships and Churches over school property; see his answers to questions in the House on 28 October 1869 and on 14 March 1870. József Eötvös, Kultúra, pp. 418–24. 420 chapter thirteen issued, without statutory authorisation on the basis of established administrative practice, the so-called úzus, rendelets which regulated and controlled associations, including religious groups. A diffferent treatment was meted out to each of the various confessions. When the Nazarenes approached the town of Pest in 1868 to ask for their own registers, Eötvös issued the rendelet already quoted:45 as ‘our laws concede rights only to received religions’ of which the Nazarene was not one, wrote Eötvös, the government could not recognise their actions as authoritative;46 and they could not, therefore, keep their own registers ‘as yet’. Eötvös instructed the Nazarenes to report births and deaths to the civil authorities who would arrange registration on their behalf with the offfĳice of the received religion ‘to which the Nazarene had formerly belonged’. Nonetheless, until legislation was introduced, children born into Nazarene marriages had to be treated as illegitimate, which afffected the inheritance of property. Instead of legislation, the úzus towards the Nazarenes and other ‘sects’ was developed further by the authorities. Minister Trefort drew the anti-liberal conclusions implicit in Eötvös’s 1868 order: there was a need, the minister declared in a rendelet issued in 1875,47 to extend ‘police supervision’ to confessions ‘which are not regularly organised’. The Nazarenes, ‘and other similar sects not lawfully received, whatever they called themselves’ were to fulfĳil their legal obligations towards the received religions. Trefort’s ordinance took the ‘concessionary’ view of religious rights to extreme lengths in order to argue that members of the Nazarene Church and other sects were in law still members of the lawfully received religion from which they had defected. They were to pay all the church taxes due to the received religion that they had left.

Recognised Religions

It was easier for the government to confer privileges on particular Churches to secure freedom of worship than putting on the law book

45 Cf. note 40 above. The VKM rendelet, No. 12548, was issued on 13 August 1868. The Nazarenes appeared in Hungary in 1840 and spread among the Calvinist Hungarian peasants and urban poor. Eötvös sent the rendelet to Pest, which had passed on to the kultusz ministry an application of József Sollársch, a cobbler. He had asked whether the Nazarene Church would be permitted to run its own register of births, etc. or whether the authorities would administer it. See László Kardos, et al, op. cit., pp. 196f, 201f. 46 The word used was hiteleseknek. Sándor Dárday, op. cit., 11, p. 27. 47 On 13 June 1875, see Sándor Dárday, op. cit., II, pp. 27–28. Trefort expressly invoked Eötvös’s authority in his 1875 and also in his 1891 rendelet. church-state relations and civil society 421 general principles. The monarch’s approval was likewise easier to obtain for granting particular privileges than for blanket legislation of freedom of worship. The government possessed, however, the customary right to ‘recognise’ particular Churches by rendelet. Just as the class of received religion was a product of society’s customary law, the class of recognised religion was the customary law of the state generated by the kultusz ministry after 1867 to fĳill the gap between the received Churches and the tolerated sects. There was a strong case to ‘recognize’ the Jewish religion after 1867. Jews moved in to Hungary from Galicia in large numbers. Many of them fought in Kossuth’s army in 1848–49, they were rapidly ‘Magyarizing’ and in contrast to the intelligentsia of the other nationalities they accepted the programme of building a Hungarian civil society.48 Yet, in 1867, the Jewish religion in law was still ‘merely tolerated’.49 As a growing proportion of the professions had become Jewish, especially in the capital. Eötvös held discussions with Jewish leaders and a congress convened by royal rescript drafted statutes which the monarch approved in June 1869. The Statutes of the ‘orthodox’ Jewish congregations were issued as a kultusz ministry rendelet by Eötvös’s successor in 1871.50 The position of the Jewish religion still difffered from that of the received Christian confessions: there was no reciprocity in matters of marriage and conversions, for instance. But Jewish registration of births, deaths and marriages was recognised by civil law, while such recognition was denied ‘the sects’, and the Jewish religion acquired security and limited protection by the authorities.51 Statute law soon took cognisance of this change. Whenever a statutory provision was meant to apply to the Jewish

48 Liberals in all political parties resisted popular pressure to restrict the advance of Jews in public life. The government, in contrast with Austria, could stem the spilling over of the anti-Semitic tide into parliamentary politics. Győző Istóczy’s Anti-Semitic party, established in 1883, was driven out of parliament by government pressure within a decade. On the Anti-Semitic party see Gyula Mérei, Magyar politikai pártprogrammok, 1867–1914, Budapest, 1934, pp. 149–55. 49 ‘Blos tolerirt, oder geduldet’, wrote Anton Virozsil in 1865, Staats-Recht, I, p. 225. 50 15 November 1871, VKM rendelet, No. 26915 in Sándor Dárday, op. cit., II, pp. 298–303. On the complex issues concerning the position of the Jewish religion towards the government see László Gonda, A zsidóság, pp. 120–46. Internal divisions among the congregations allowed the civil authorities to exercise power over many aspects of Jewish relations even after the Jewish religion was declared received in 1895. The creation of administrative courts in 1896 did not help: they were given hardly any competence in civil rights. 51 A leading jurist of the period argued in 1907, however, that the recognised status of a “religion could be cancelled by ministerial rendelet because recognition was attained by rendelet in the fĳirst place. Ernő Nagy,Közjog , 1907, p. 148. 422 chapter thirteen as well as to the received religions, the term ‘recognised religion’ was used.52 Two other religions attained recognition during the Dualist era: the Baptist Church was recognised by ministerial rendelet in 190553 and the Muslim religion was, unconventionally, recognised by statute law in 1916.54 Recognition of religions by ministerial rendelet was standardised by Law XLIII of 1895 On the Free Exercise of Religion. This law should have been the crowning achievement of liberal legislation. Instead, in its second chapter it established the standard rules ‘On Religious Denominations To Be Lawfully Recognised in the Future’. Applicants wishing to form a recognised religion were to submit all the regulations of their proposed Church to the kultusz minister for approval.55 The minister would have to refuse approval if the applicants represented ‘anti-state or anti-national tendencies’, if the doctrines submitted contravened either civil laws or public morality, if the applicants had seceded from a ‘lawfully received or recognised religion’ only because they wished to use a diffferent language, and also if the name of the proposed Church was either ‘racial or national’56 in character, or ‘damaged a religion which has already been received or lawfully recognised’.57 The grounds on which the minister could refuse recognition were so vague that the Law might as well have left the matter entirely to the discretion of the minister. Recognised Churches, under the protection of the state, were to enjoy limited autonomy. In contrast with the received Churches, they were not entitled to administrative help in collecting church taxes which they did, however, have the right to impose. They were under the administrative tutelage of the local authorities, to whom they had to submit the minutes of all Church meetings and whose permission they had to obtain to acquire property.58 The civil authorities approved the appointments of their Church offfĳicials ‘if their moral conduct and attitude as citizens of the state did not give rise to objections’.59 Should their conduct be ‘hostile to the state’,60 the kultusz minister could demand their removal from offfĳice. These stern stipulations protected the

52 elismert vallás, coined on the German anerkannte Religion. 53 VKM rendelet: 77092/1905. Ernő Nagy, op. cit., 1907, p. 141. 54 Law XVII of 1916. See Andor Csizmadia on possible reasons or the statutory rather than ministerial recognition, A m. állam és egyh., p. 90 n33. 55 Section 7. 56 faji vagy nemzetiségi. 57 Section 8. 58 Sections 9–12 and 19. 59 Section 13, erkölcsi és állampolgári magatartása kifogás alá nem esik. 60 Section 15, államellenes magatartást tanúsít. church-state relations and civil society 423 discretionary powers of the civil authorities rather than the rights of dissenting minorities.

The Balance-Sheet of Church-State Relations

Notwithstanding the egalitarian liberal rhetoric of statute law, the two agencies of the crown’s and of society’s customary laws generated a motley of privileges and practices within a hierarchy of three broad classes of religions. In fact one could not fĳind two Churches in Hungary whose position with respect to civil law and the state authorities was identical.61 Statute law all too frequently merely recognised the diverse changes that had already come about in the legal position of the individual Churches and had acquired social acceptance. Custom proved stronger than parliament-made law when the latter tried to settle contentious points of the sectarian conflict between Catholics and Protestants. This is demonstrated by the long saga of Section l12, Law LIII of 1868 on the religion of children born to parents in mixed marriages.62 Short of a statutory system, what in fact evolved might still have been the best remedy available against the direct intervention by the executive branch of the state in church afffairs. It was a considerable achievement that the overwhelming majority of the citizens belonged to received Churches most of which enjoyed either influence or self- government and, occasionally, both. Furthermore, the individual was able to surmount the difffĳiculties he faced in changing religion and after 1895 even to be without any. The system as such had, however, little in common with the ideals that liberals cherished. It was not based on the conception of civil society in which every member had basic rights. The faults of a graduated system of privileges, as opposed to a system based on common statutory rights to all, were obvious.63 Under a system in which customary rights, backed by communis opinio, could progress within a hierarchy, rights could also

61 In October 1905, the Fejérváry government promised, with qualifĳications, that ‘complete equality and reciprocity among the received religions would be made efffective in every respect’; Bertalan Lányi, A Fejérvári-kormány, Budapest, 1909, p. 118. 62 The so-called elkeresztelés crisis, following the attempt by the legislator in 1868 (Law LIII) to determine the religion of children from mixed marriages which opened the Pandora’s box of sectarian strife between Protestants and Catholics, Gábor Salacz, A magyar kultúrharc törtenete 1890–1895, Vienna, 1938, chs. 1 and 2; and see note 30 above. 63 However, leading jurists like Győző Concha supported the system of ‘constitutional privileges’, Politika, Budapest, 1905, II, p. 344. 424 chapter thirteen regress. The Jewish religion, merely tolerated before 1869, became recognised in 1871. The Tiszaeszlár case in 1883, a Jewish ritual murder trial, was (notwithstanding the bad press which Hungary incurred abroad) a triumph of the liberal principle of the rule of law.64 The Jewish religion, moving up in the hierarchy, was declared to have been received in 1895 by statute law. It could, and was, however demoted a few decades later in 1942 to the rank of a recognised religion by another statute law.65 The system of graded privileges turned the Churches on each other rather than induced them to co-operate, and society’s sense of justice was not violated when the state withdrew some privileges.66 Under a liberal statutory system, a right taken away from one is an attack on all; under a hierarchy of privileges, it is not. The system made all religions more dependent on the goodwill of the civil authorities than they would have been under a liberal statutory system. Churches coexisted on the basis of a variety of diffferent, insufffĳi- ciently defĳined, rights. Imbued with envious sectarian spirit, they were competing with each other for government favours. They queued up for ‘state benefĳits’,67 fĳinancial help, and for administrative support from the civil authorities. The mentality such a system encouraged was not conducive to the growth of independent, critical social attitudes that one would expect to fĳind in civil society.68 Further, the system could not cope with social change. The hallmark of a Western liberal system is its ability to tolerate dissent and secession from established social institutions. The Hungarian system never developed that ability. Religious freedoms were confĳined to a ‘closed shop’, a rigid set of received religions. The class of recognised religion, a product of ministerial úzus, turned out to be a

64 The court procedure in a small town in eastern Hungary, including the state attor- ney’s, was impeccable; all defendants were acquitted. Meanwhile the authorities, using vigorously their discretionary powers, suppressed the Anti-Semitic movement. 65 Law VIII of 1942 On the Regulation of the Legal Status of the Jewish Religion. Section I rescinded Law XLII of 1895 and accorded ‘recognition’ to the Jewish religion. On the reception of the Jewish religion in 1895 and its demotion in the 1940s, see László Gonda, A zsidóság, pp. 158–62 and 209–20. 66 In order to justify the demotion of the Jewish religion in 1942, a leading jurist pointed out that even after 1895 the rights of the Jewish religion had remained less extensive than those of the Christian received religions. István Egyed, A mi alkotmányunk, Budapest, 1943, p. 158; see also Andor Csizmadia, Rechtl. Beziehungen, pp. 24–25. 67 A key term in modern Hungarian social history which would deserve a separate study, állami juttatások is mentioned occasionally in the literature. E.g. Andor Csizmadia, A m. állam és egyh., p. 93. 68 Gyula Szekfű, himself a pious Roman Catholic, criticised his Church for lack of interest in social questions and even in pastoral work; Catholic prelates opposed social reforms of any kind. Magyar tört., V, pp. 521–26. church-state relations and civil society 425 failure. The security it offfered was insufffĳicient. Created by ordinance, a recognised Church could lose its status by another ordinance.69 A recognised Church’s dependence on the local authorities, without any com- pensating ‘state benefĳits’, was nearly complete. Apart from the Jewish and the Muslim religions, both special cases, only the Baptist religion ever attained legal recognition. The system of graduated privileges in religion exacerbated sectarian strife and enhanced the authority of the executive power. The spectacular increase in the discretionary powers of the ministry shifted the balance of power further towards the overweening authority of the state at the expense of the received and non-received Churches, whose ability to act as foci of independent social centres of power had diminished by the end of the nineteenth-century. In the fĳirst four decades of the twentieth-century the system of church- state relations did not substantially change. Institutional continuity was ruptured during and after the Second World War.

Church-State Relations under the Communist System

The Communists rejected the principles of civil society, and their rejection was complete. They abolished private property as well as civil rights and did not tolerate the existence of autonomous social institutions. Political power was to be undivided.70 The new rulers preached ‘democratic centralism’. It meant the arbitrary power of the single autocratic party and its state offfĳicials in the name of the ‘working class’. All the Churches were placed under the strict administrative control of the civil authorities. Marxists professed the principle of the ‘separation of Church and State’ which they understood to mean the separation of the State from the Church but not vice versa.71 Church autonomy was uniformly denied. Appointments and even daily pastoral work came under the control of the government and of the State Offfĳice for Church Afffairs created in 1951.72 Associations under church patronage were disbanded,

69 See note 51 above. 70 See László Péter, ‘Montesquieu’s Paradox on Freedom and Hungary’s Constitutions, 1790–1900’, pp. 167–68 above. 71 Although the Constitution declared the opposite, Section 54 (2) Law XX of 1949, see A Magyar Népköztársaság Alkotmánya (hereafter: Law XX of 1949), Budapest, 1959 edn. 72 A rendelet issued in 1951 stipulated, with retrospective force, that all Church appointments required the prior approval of the state authorities. See Sándor Orbán, ‘Az állam és 426 chapter thirteen religious publishing houses closed down, and the population subjected to harsh anti-religious propaganda. Furthermore, the clergy were for many years ordered to participate in political campaigns. Nevertheless, the regime disingenuously claimed that it realised the principles of the liberty of conscience and of the free exercise of religion, both being enshrined in the country’s constitution.73 Oddly enough, the regime also made another claim which takes us back to the subject of the Churches’ legal position during the pre-Communist era. It was held that Law XXXIII of 1947, which had abolished the division between the so-called ‘received’ and the ‘lawfully recognised’ religions,74 had established equality among the country’s religions.75 A cursory glance at the legal and institutional arrangements of the regime, however, reveals a surprising degree of diversity in acquired rights and duties and even in the legal status of the diffferent Churches. This is not surprising; there were no general regulations which set out the rights and obligations to be applied to all the Churches. In order to exist lawfully a Church needed permission from the state authorities to function. This was the so-called recognition that the State Offfĳice for Church Afffairs had the right to grant to each Church community. The most common form of permission was the agreement drawn up between the church leaders and the civil authorities acting as two unequal parties. The Calvinist (Reformed) Church was the fĳirst of the larger denominations to sign an agreement, under pressure and intimidation, with the government, and a katolikus egyház megallápodása’, Történelmi Szemle (hereafter: ‘Az állam és egyh.’), 1960, p. 307. Law V of 1953 had rescinded the requirement which, however, was restored by ministerial rendelet in 1957, József Éliás, ‘Az egyházak és az egyháziak szabadsága’, Magyar Füzetek, 14–15, (hereafter: ‘Az egyházak’), Paris 1984, pp. 208–209; Pál Fónyad, ‘A magyaror- szági protestantizmus rövid története, 1948–1978’, in Magyar valtozások 1948–1978 (hereafter: ‘A magy. prot.’), Vienna, 1979. pp. 116–17; on the breaking of the spirit of the Lutheran Church’s resistance see John Eibner ‘Lajos Ordass: Prophet, Patriot or Reactionary’, Religion in Communist Lands (hereafter: RCL), Keston College, England, Summer 1983, pp. 178–87; Imre András, ‘A II. világháború utáni magyar katolikus egyház’, in Magyar vál- tozások 1948–1978. ed. Ernő Deák (hereafter: ‘A kat. egyház’), Vienna. 1979, p. 131. On the unsavoury methods of the State Offfĳice see Konrád Szabó OFM, Az egyházügyi hivatal tit- kai, Budapest, 1990. 73 Section 54 (I), Law XX. 1949. 74 The badly phrased nine-section Law rescinded all the diffferences between the two classes which were disadvantageous to the recognised religions (Section I). Section 2 maintained, however, the very stifff stipulations of sections 7, 8 and 18 of XL III, 1895, concerning the recognition of new religions, see above note 55 and after. 75 As late as 1987 (!) József Lukács, who had prepared his work with the help of the Slate Offfĳice for Church Afffairs, made this claim, Vallás és vallásosság a mai Magyarországon (hereafter: Vallás), Budapest, 1987. p. 104, cf. p. 8. See also László Kardos et al. Boldog emberek, pp. 309–10 and 321. church-state relations and civil society 427 did so on 7 October 1948.76 The small Unitarian Church followed suit on the same day. The Jewish leaders signed an agreement on 7 December and the Lutheran bishops on 14 December in the same year. The Roman Catholic and Uniate Church, to which well over half of the country’s population adhered, held out longer and signed a megállapodás (agreement) on 30 August 1950—after protracted crises, intimidation, arrests and imprisonments.77 Most of these agreements were confĳiscatory in character: religious orders were dispersed, property taken away and the vast majority of church schools closed, in return for the ‘recognition’ of the Church by the state, the right of worship (largely confĳined to church buildings) and some fĳinancial subsidy to pay the salaries of church personnel and building maintenance.78 The treatment meted out to one recognised Church dif- fered from the next. The Catholic Church was, for example, allowed to keep only eight of its grammar schools—a considerable restriction on its earlier endowments. The Calvinists ended up, however, with keeping a single grammar school while the Lutheran Church had none. Moreover, the position of the smaller religious communities, the so- called sects, difffered from that of the larger, so-called historic, Churches and it showed particularly great diversity. Of the smaller religions only the Baptist Church attained ‘lawful recognition’ before 1945. Some of the communities, notably the Baptists, the Seventh Day Adventists, the Methodists, the Free Christian Brethren and the Salvation Army, formed

76 Pál Fónyad, A magy. prot., pp. 113–16. Catholics were critical of the Protestants for rushing into agreements with the Communist government. The regime did not keep the agreements; see on the Calvinist Church, József Éliás, ‘Az egyházak’, pp. 207–208. 77 On the megállapodás—a ‘partial agreement’—see detailed but distorted accounts by Sándor Orbán, ‘Az állam és egyh.’, pp. 280–308, and Jenő Gergely, A katolikus egyház Magyarországon, 1944–1971 (hereafter: A kat. egyh.), Budapest, 1985, pp. 97fff; Idem, Katolikus egyház, magyar társadalom 1890–1986 (hereafter: Kat. egyh. m. társ.), Budapest, 1989, pp. 124–46 (better than the earlier work but still biased against the Church). The Vatican never approved the agreement; Imre András, A kat. egyház, p. 132; John Eibner, ‘Hungary: overview’, in: Philip Wailers (ed.) World Christianity: Eastern Europe (hereafter: Hungary), Eastbourne, 1988, p. 152. On the show-trial of Cardinal József Mindszenty see his Memoirs, 1974, N. Y., p. 83, his Emlékirataim, 1974, Toronto, p. 223; A Mindszenty-per, intr. Gellért Békés (republication of the ‘Fekete Könyv’, the offfĳicial record of the show-trial), I.U.S., 1986, Paris. Béla Szász, ‘A Mindszenty-per’, Irodalmi Újság. 1986, 4, pp. 3–4. Gyula Havasi’s A magyar katolikusok szenvedései 1944–1989, Budapest, 1990, is a substantial collection of documents concerning the suppression of the Roman Catholic Church for the whole period. 78 Sándor Orbán, ‘Az állam és egyh.’, pp. 291–92 and 304f. Over the last twenty years the value of the regular state subsidies has considerably diminished, József Lukács, Vallás, pp. 62–3. Jenő Gergely, A kat. egyh., pp. 99f, 164. 428 chapter thirteen the Free Church Alliance in 1944. All had grievances against the ancien régime, the ‘historic Churches’ as well as the government, and co- operated with the post-war regime. The government gave permission (engedély) to the Alliance to function in July 194579 and recognised its member-churches by ministerial rendelet in 1947 without any formal agreement.80 In the following year the Alliance was reorganised to become the Free Church Council which was eventually placed under the authority of the State Offfĳice for Church Afffairs. Not even the smaller Churches escaped the confĳiscation and persecution which afffected all religions throughout the 1950s.81 Furthermore, government policy maintained many of the disadvantages under which most of the pacifĳist ‘sects’ had earlier existed. For example, while the Catholic, Calvinist, Lutheran and Unitarian Churches received regular state subsidies, the member-churches of the Free Church Council (also the Orthodox Church) did not receive any regular aid.82 Again, the ‘historic’ Churches were allowed to keep a few seminaries in the 1950s while the smaller Churches were not allowed to have access to any. An arrangement was fĳinally worked out in 1966.83 Nor could the Council protect its member- churches before 1956: the Salvation Army was dissolved by a ministerial rendelet in 1949 and the Adventists left the Council in 1950, thus losing their recognised status, which they regained only in 1958.84 On the other hand, the Council, authorised by the State Offfĳice, exercised supervision over those small Churches that had not yet attained recognition.85 Among others, the Pentecostals, the Nazarenes and the Methodist Community of Evangelical Brethren had been in this position before they secured recognition in 1958, 1971 and 1981 respectively.86 But several unrecognised sects

79 Ministry of the Interior ordinance of 30 July 1945. József Fodor, Vallási kisközösségek Magyarországon (hereafter: Vallási), Budapest [1987], p. 106, and see a critical review of Fodor’s Marxist work by John Eibner in RCL, 1988, No. I, pp. 57–59. 80 1200/1947.11 VKM rendelet, József Fodor, Vallási, pp. 52, 113 and esp. 125. 81 Examples given by József Fodor, Vallási, p. 112. The pejorative term ‘sect’ survived in offfĳicial language. Barna Sarkadi Nagy, vice chairman of the State Offfĳice for Church Afffairs, declared in 1988 that sects were those religious groups which operated without permission from the state authorities. Éva Árokszállási, ‘Az állam és az egyházak’, Magyar Hírek, 8 April 1988, p. 11. 82 John Eibner, Hungary, pp. 147–48. 83 József Fodor, Vallási, p. 130, cf. József Lukács, Vallás, p. 80. 84 József Fodor, Vallási, p. 46; though József Lukács gives 1957 as the year of recognition, Vallás, p. 92. 85 József Fodor, Vallási, p. 116. 86 Tájékoztató a Magyarországon működő egyházakró1 és felekezetekről, State Offfĳice for Church Afffairs (hereafter:Tájékoztató ), Budapest, 1987, pp. 70, 78–79. The persecution of church-state relations and civil society 429 functioned ‘unregulated’ even in the 1980s. The largest was the Jehovah’s Witnesses.87 Independent Pentecostal groups and unofffĳicial Adventists also existed unlawfully, that is without permission secured from the State Offfĳice for Church Afffairs. Refusal to do military service was the intractable problem. A further source of diversity was that individual preachers of some unrecognised sects were from time to time granted a licence (enge- dély) to operate. The diversity was clearly recognised by József Szakács, president of the Free Church Council, who declared a couple of years before the collapse of the regime that as regards their legal status there were three classes of religious communities in Hungary: 1. legally regulated communities 2. communities whose status was under review and 3. legally unregulated communities.88 As the regime settled down, it became less repressive; the worst forms of discrimination against believers diminished.89 Churches, still expected to support government policy in general, were no longer forced to participate in political campaigns. They acquired a few concessions in their pastoral work. In church-state relations co-operation largely replaced antagonism and suspicion although the process did not lessen the Churches’ dependence on the state authorities.90 The Catholic hierarchy

Methodist groups in 1977 is described in ‘A 12 metodista lelkész nyilatkozatának háttere’, in: Magyar Füzetek, Paris, 1978 (hereafter: ‘A 12 metodista’), pp. 109f. On the Nazarenes see László Kardos et al. Boldog emberek, pp. 324fff and 48 m. 87 In April 1988, 146 Jehova’s Witnesses were in prison for refusing to perform military service, wrote John Eibner, the most knowledgeable foreign expert on the position of the Churches in Hungary, Hungary, p. 163. See also József Fodor, Vallási, pp. 84f, and József Lukács, Vallás, p. 95. ‘Recognition’ by the state authorities of a Church frequently involved the suppression of a dissenting group ‘Within that Church; see esp. ‘A 12 metodista’, p. 114. 88 Postscript to József Fodor’s Vallási, p. 145, also pp. 10 and 36. A confĳidential rendelet in 1976 allowed members of some of the small communities to do unarmed military service. This privilege did not apply to the historical religions. On 22 April 1988 a government spokesman announced that 158 men were in prison for refusal of military service. Tamás Csapody ‘“Békés békétlenek”—Magyarországon’, Századvég (hereafter: ‘Békés’) 6–7, Budapest, 1988, p. 234. 89 But for many a year after the 1956 revolution the Kádár régime, only slightly less intolerant towards religion than its predecessor, carried out fĳierce propaganda against ‘the clerical reaction’ and ‘the religious world view’. The politbureau’s resolution of 22 July 1958, published in English, makes instructive reading. RCL, Summer 1988, pp. 180–86; see also Jenő Gergely, A kat. egyh.; pp. 161f; Idem, Kat. egyh. m. társ., p. 160 (terror methods in 1959–1961); József Lukács, Vallás, pp. 106f. 90 The state authorities claimed that they did not interfere with the internal matters of the Church but, complained a Roman Catholic priest, they reserved the right to defĳine 430 chapter thirteen did the bidding for the regime in October 1986 by reprimanding members of the ‘basis communities’ for refusal of military service.91 As church-state relations improved, the legal inequality grew among the Churches, which the system of permission-recognition had necessarily generated. The Catholic Church and the other ‘historic Churches’, through the policy of ‘small steps forward’, acquired minor concessions and secured more advantageous megállapodások92 concerning religious instruction in schools, seminaries and publishing.93 Likewise the smaller communities, most of which operated on the basis of their own recognised Church Statutes. The Free Church Council consolidated its position as a quasi governmental body. As a unique privilege, it had since 1971 taken over the authority of the State Offfĳice to approve all Church appointments of the smaller religious communities. The election of the Council’s president, though, required the prior approval of the head of the State Offfĳice.94

Church-State Relations in Crisis

It is a paradox of history that the Communists, who had pushed the autocratic principle of law to extremes when they acquired power in the 1940s, started the dismantling of the very system of church-state relations based

what counted as ‘internal’; Mihály János (pseud.) ‘Egyház és totalitárius állam’, Magyar Füzetek (hereafter: ‘Egyház’), Paris, 1984, pp. 169 and 173. See also- t L, ‘Magyar egyház, merre tartasz?’ Magyar Füzetek, 18, Paris, 1987, esp. p. 44. 91 Tamás Csapody, ‘Békés’, p. 234. The Catholic hierarchy and the state co-operated against the ‘basis communities’, especially against a Piarist group led by Father Bulányi. János Wildmann, ‘A magyar katolikus hierárchia és a báziscsoportok’, Magyar Füzetek, 14–15, Paris, 1984, pp. 175f; Imre András, ‘Kompromisszumos javaslat a bázisközösségek ügyében’, Katolikus Szemle, 1983, 3 pp. 288f; László Kasza, ‘A Bulányi-ügy’, Irodalmi Újság, 1982, 3, pp. 1–2; Lajos Szakolczay, Páter Bulányi, Debrecen, 1989: a long interview with Páter Bulányi and documents concerning his conflicts with the hierarchy between 1976 and 1987. In contrast with the 1960s, wrote a former member of a monastic order in 1984, there were no priests in prison but many former monks were still without state licence to work; ‘Egyház’, p. 171. The best short account in English: ‘Controversy in the Hungarian Church: Fr. Bulányi on trial’, The Month, April 1987, pp. 150–54. 92 John Eibner, Hungary, pp. 152 (the 1964 ‘partial agreement’ with the Vatican), 164f, 169, 171; RCL, Summer 1988, p. 166; József Lukács, Vallás, pp. 63–65, 94; Pál Fónyad, A magy. prot., pp. 117–18; Imre András, A kat. egyház, pp. 133–35. 93 The publications were still meagre. There were approximately 20 Catholic publishing houses in 1946. In 1988 there were only two (John Eibner, Hungary, p. 166) which in the 1970s published 15–18 books annually. Imre András, A kat. egyház, p. 136; and about 20–25 books annually in the 1980s, Tájékoztató, p. 31. 94 József Fodor, Vallási, pp. 92, 127, 131–32. church-state relations and civil society 431 on the traditional autocratic principle forty years later, when their regime entered into terminal decline. The growing economic crisis, Gorbachev’s policy of glasnost, the influence of the reform Communists and pressure from the democratic Opposition brought political reform to the fore. After 1987 the regime could no longer count on the automatic cooperation of the bishops and leaders of the recognised Churches. The lower clergy of the Catholic Church and Protestant ministers, dissat- isfĳied with the policy of ‘small steps’, put pressure on their superiors to be bolder. By the influx of new bishops in the Catholic Church and the appointment of a new Archbishop of Esztergom, László Paskai, in April 1987,95 the regime had to face a less elderly and inefffective Catholic hierarchy.96 The process of change was increased when János Kádár was replaced by a new party leader, Károly Grósz, in May 1988. Soon the Bishop’s Conference, largely bypassing the State Offfĳice for Church Afffairs, began a dialogue with the government which from the autumn of 1988 was in the hands of reform Communists headed by Miklós Németh.97 The Catholic Church now demanded a ‘new contemporary agreement’ to replace the one imposed on it in 1950.98 The development of church-state relations, however, took a diffferent turn. Instead of new agreements with individual Churches, the comprehensive reform of church-state relations emerged as the new political agenda. This was a part of the process to reform the country’s political system by the revision of Hungary’s 1949 (inefffective) Constitution. Even before Kádár was replaced in March 1988 the government had announced in parliament that legislation concerning church-state relations was being prepared.99 In July the Central Committee of the party approved a plan to

95 Seven dioceses received their new heads at one go. A very old custom, appointments were made in a cluster to help the civil authorities and the Vatican to come to compromises (although the Holy See never recognised the ius patronatus which monarchs and later the Hungarian State had claimed). 96 See John Eibner, ‘A New Primate: A New Policy’, (hereafter: ‘A New Primate’), RCL, Summer 1988, pp. 164–68. 97 The new government, appointed on 23 November 1988, gradually distanced itself from the party. 98 Károly Grósz, Party leader, proposed to the Roman Catholic bishops in August 1988 ‘that the Church and state should sign a provisional “Protocol” which would lay down the rights and responsibilities of the Church until the Hungarian parliament enacts a new law on religious afffairs’.Keston News Service (hereafter: KNS), 6 October 1988, p. 9; and see John Eibner, ‘A New Deal in Hungary’, The Tablet, London, 11 March 1989, pp. 272–73. 99 See John Eibner, ‘A New Primate’, p. 167. After Károly Grósz had become General Secretary, in a letter to Primate Paskai in August 1988, he promised legislation on religious afffairs in 1990.KNS , 6 October 1988, p. 9. 432 chapter thirteen establish the rights of association and of assembly, and in August two draft bills were published in the press for public discussion.100 The bill on associations was to make the courts, rather than the administrative authorities, competent in disputes concerning the exercise of the right.101 This was a signifĳicant shift in policy towards the Rechtsstaat, the establishment of the rule of law, which by then had become an accepted part of political discourse, and contained obvious implications for the position of the Churches. The working out of the general principles of legislation for church-state relations was, however, left in the hands of the State Offfĳice for Church Afffairs. (Herod was entrusted with the protection of small children.) The fĳirst draft of the ‘Guidelines’102 prepared in the State Offfĳice on the legal position of the Churches accepted the principle that the exercise of religious rights should be limited only by statute law.103 Undoubtedly a breach in the autocratic principle of law as regards church-state relations,104 the signifĳicance of this shift was nevertheless limited; the authoritarian State was not to lie down or not just yet. The ‘Guidelines’ underlying principle was the traditional ‘concessionary view’ of rights. It treated religious freedom as ‘self-limitation’ on the part of the State,105 which was to ‘permit’ (megengedi) the profession of religious faith as a right.106 The State was to ‘recognise’ (elismeri) the legal personality, independence and autonomy of the Churches,107 which were to possess equal rights (egyenjogúság).108 The ‘Guidelines’ maintained the system of ‘central and local offfĳices of Church administration’ which the law was now to identify (nevesít), defĳine and place under constitutional authority.109 Thus state supervision

100 Népszabadság and Magyar Nemzet, 27 August 1988. 101 Section 22 of the draft Bill in Ibid 102 The fĳirst draft of theIrányelvek , ‘Guidelines’, was prepared in late 1988. I am grateful to John Eibner for passing a copy of this document to me. 103 Pt. I of the Guidelines. 104 Barna Sarkadi Nagy, deputy chairman of the State Offfĳice (soon to become its chairman) stated in a lecture in Keston College (UK) that the principle of religious freedom in the new Law will be ‘whatever is not forbidden [by statute Law] will be permitted’; KNS, 6 October 1988, p. 9. 105 Pt. II. 106 Pt. III, 1. 107 Pt. III, 2, 5. 108 Pt. III, 3. 109 Pt. IV, 1. The State Offfĳice was never regulated by statute law. The Guidelines maintained the State Offfĳice in a new form. A ‘Church Policy Council’ and an independently organised Secretariat were to work either under the Head of State or under the prime minister. church-state relations and civil society 433 was not to be abandoned. The ‘recognition’ of the Churches was, however, to be administered by the Constitutional Court through a system of registration.110 With the Catholic Church in mind, the ‘Guidelines’ stipulated that church leaders could be appointed by their foreign superior authority only after the approval of the head of the Hungarian State. All elected and appointed leaders of the recognised Churches had to take a ‘State oath’.111 A revised draft of the ‘Guidelines’, prepared in the spring of 1989,112 weeded out some of the authoritarian terms of the text.113 The State was still to confer ‘recognition’ on religious groups, but the necessity of establishing ‘legal guarantees’ for the Churches appeared as a new principle.114 The critical question at this stage was the future of the State Offfĳice. And the Offfĳice, supported by the party headquarters, put up a vigorous fĳight for its survival in some form.115 At a press conference on 5 April 1989 Sarkadi Nagy announced that the Offfĳice would be replaced by a new one which would be without the right to issue rendelet and would work under the supervision of a new consultative council that was to include church leaders.116 The Németh government had diffferent ideas: it was prepared to dispense with the generally hated State Offfĳice altogether. Kálmán Kulcsár, Minister of Justice, interviewed by John Eibner of Keston College in January 1989, plainly stated that he did not see the need for a special institution for church-state afffairs. ‘If there is any such business’, he went on, the Ministry for Culture and Education could handle it.117 The Council of Ministers, largely disregarding the revised ‘Guidelines’ prepared by the

110 Pt. IV, 2. The principles of the procedural rules concerning the refusal of ‘recognition’ were vague. 111 Pt. IV, 3. 112 No. 27–1 (d) 1989, State Offfĳice for Church afffairs. 113 The Church Policy Secretariat, a ‘co-ordinating body’, was to be placed under the prime minister. 114 Ibid, pp. 2, 3. 115 See interview with Jenő Andics, Director of the Central Committee’s Social Policy Department, summarised in KNS, 13 April 1989, p. 14. 116 Ibid, p. 13. 117 Kulcsár did not like the idea of a separate offfĳice because ‘every organisation is ready to enlarge its own competence’. If the Churches wanted subsidies for schools, the ministry would deal with it. His aim was the establishment of the rule of law: ‘I have never been able to understand the concept of “socialist legality”. Legality either exists, or it does not … [and further] whatever is not explicitly forbidden by the law is legal’; John Eibner, ‘The Rule of Law in Hungary’, RCL, Summer, 1989, pp. 140–47, esp. 141 and 146; KNS, 16 February 1989, pp. 13–14. 434 chapter thirteen

State Offfĳice, drafted its own ‘Principles’ of legislation on the ‘Freedom of Conscience and Religion’118 and published it for debate in June.119 An impeccably Western liberal statement of 14 sections, the ‘Principles’ abandoned the authoritarian view of church-state relations. It did not ‘recognise’ the Churches as a ‘concession’ by the State. The starting point of the ‘Principles’ was the liberty of conscience as a basic human right, set out under eight clearly drafted principles. The rest of the document was also clear, specifĳic and contained procedural rules. The ordinary courts were to register Churches and religious associations if they wished to become legal persons. Section 13 stipulated that it should be declared illegal to impose special duties on Churches by the civil authorities and likewise to ‘maintain or create institutions, other than specifĳied in statute law, in order to administer and supervise church afffairs’. Shortly after the publication of the ‘Principles’ the Presidential Council abolished the State Offfĳice for Church Afffairs120 and the Council of Ministers decided to create the National Council for Religious Afffairs—a consultative body for negotiations between the government and the Churches.121

The Reconstruction of Church-State Relations

Meanwhile the Churches were in turmoil. They now understood (along with everybody else in the country) that a regime change, rather than mere reform, was about to take place. Church leaders who had hitherto co-operated with the outgoing regime lost much of their authority. The public letter from József Szendi, the Bishop of Veszprém, to Cardinal Primate Paskai amounted to an unprecedented rebuke of the head of

118 Notably ‘and Church Afffairs’ was dropped from the title. 119 Decision of the Council of Ministers, No. 1072, 15 June 1989, Magyar Közlöny, No. 39, pp. 724–25. 120 Section 2, 1989, No. 14. The rendelet also regulated Church appointments in so far as the appointing authority was foreign (Section 1) and authorised the government to determine the ‘state tasks’ concerning religion; Magyar Közlöny, No. 43, p. 771. although the State Offfĳice was disbanded in 1989, in some counties the secretaries for church afffairs were functioning even a year later; see Magyar Nemzet, 12 July 1990. 121 1092/1989 (June 30). In order to service the new National Council a Church Policy Secretariat was organised as a part of the Cabinet Offfĳice (Magyar Közlöny, No. 43, p. 779). Another decision transferred the administration of church-state relations to the ministry of Culture by rendelet (ibid). The Opposition (Free Democrats) attacked these moves as attempts pre-empting the task of parliament, Felhivás (leaflet), 5 July 1989. See also Miklós Tomka, ‘Vallás és közélet 1989-ben’, Magyarország politikai évkönyve (hereafter: MPÉ), 1990, p. 115. (Were these changes transitory?—the Opposition wanted to know.) church-state relations and civil society 435 the Catholic hierarchy by an ordinary.122 The establishment of the National Council for Religious Afffairs on 20 October in the parliament building marked a public reconciliation between Church and State.123 Prime Minister Németh led the government side.124 The leaders of the larger Churches and most of the smaller communities were present.125 Németh described the previous forty years’ government policy toward the Churches as wicked. The task at hand, he explained, was not the ‘recognition’ of religious rights but the protection of religion by legal guarantees. Then Kálmán Kulcsár, Minister of Justice, spoke of the bill which his ministry had meanwhile prepared. He was well received: Church leaders welcomed the legal guarantees offfered by the draft. A notable upshot of the debate concerned the system of appointment of Catholic bishops which the draft bill left open. Primate Paskai observed that the Vatican would never accept that the appointment of bishops should require the approval of the head of the state. There and then Németh and Kulcsár accepted the Catholic Church’s position. The renunciation by the civil authority of the claim, which used to be called ius patronatus, put an end to a centuries’ old source of conflict. On the anniversary day of the 1956 revolution, the country’s revised Constitution was promulgated.126 Its Section 60 defĳined the liberty of conscience as a fundamental individual right and declared that ‘the Church functions in separation from the State’. The bill, prepared by the Németh government with the consent of the Churches, ‘On the Liberty of Conscience and of Religion and the Churches’, passed by parliament on 24 January and promulgated as Law IV of 1990, is a basic law whose revision requires a two-thirds parliamentary majority.127 Law IV does not entirely separate State and Church from each other. In Hungary the Churches have never demanded that in Hungary. It is

122 Bishop Szendi’s demand that the Bishops Conference should be chaired by an ordinarius, elected for fĳive years rather than automatically by the Primate, was a direct challenge to Paskai’s authority. On 26 May 1989, see Hírlevél, 1989, No. 8, pp. 6–7 (and elsewhere in the press). 123 Detailed report in the Magyar Kurír, 23 October 1989, 79, No. 242, pp. 1–4. The proceedings were public. Four annual meetings were planned. 124 The meeting was chaired by the Prime Minister as president of the Council; Ferenc Glatz, Minister for Culture became vice president and Barna Sarkadi Nagy its secretary. 125 The Nazarenes and the Jehova’s Witnesses, for religious reasons, stayed away. 126 Magyar Közlöny, 23 October 1989, No. 74, pp. 1219f. 127 The main subject of the 24-section Law (further subdivided) was registration of the Churches; the text together with the ministerial motivation in Magyar Közlöny, No. 12, 12 February 1990, pp. 205–14. 436 chapter thirteen undoubtedly with the history of church-state relations in mind that section 16 (1–2) of the Law stipulates that although the Churches operate under the law, ‘the State cannot set up offfĳices to guide or supervise the Churches’. Also, the State is not to help the Church to enforce internal regulations (Section 15, 2). With this rule the practice called brachium in the Middle Ages came to an end. The courts can register a religious association if it is to become a legal person.128 As such, the Church can apply for state subsidies to carry out educational, charitable and other tasks. The funds are shared out by parliament in the course of the annual budget debate.129 Law IV of 1990 rescinded the Laws of XLIII 1895 and XXXIII of 1947 as well as the rendelets issued during the Communist regime, including even No. 14 of 1989 by the Presidential Council.130 Also, upon the enactment of the Law, the ‘agreements’ imposed on the Churches after 1947 were by common consent declared void.131 Since 1990, for the fĳirst time in Hungarian history, church-state relations have been governed by parliament-made laws which apply equally to all religions. The Communists were wont to boast that they took power in order to accomplish, together with the socialist transformation of society, ‘bourgeois democratic’ tasks. Nothing was further from the truth. Communists in power stretched the inherited autocratic principle of law as far as it could possibly go. It is true, however, that when the world was about to collapse around them, under pressure from their opponents, the reform Communists were prepared to introduce laws, like Law IV 1990 on church-state relations, which laid the foundations of civil society and established basic institutions of the Rechtsstaat. Today freedom of conscience is guaranteed by adequate statutory provisions which include procedural rules for judicial review by independent courts and by the democratic control of a freely elected parliament. To sum up, as long as the autocratic principle of the law operates without the mitigating efffects of Rechtsstaat institutions it tends to generate diversity and growing inequality in the legal position of the Churches—as

128 Sections 9–13 and the ministerial motivation contain basic procedural rules. By 1993 over fĳifty Churches and religious communities registered with the courts. 129 Section 19 (1–2). In 1993 thirty-fĳive Churches received subsidies. The resolution of parliament (14/1993, 19 March) with the allocation of funds in Magyar Közlöny, 1993, No.31, pp. 1614–16. 130 See above note 120. 131 Miklós Tomka, ‘Vallás és politikai szerkezet: 1990. évi változások’, MPÉ, 1991, p. 250. church-state relations and civil society 437 it undoubtedly did after 1867 and again after 1956. In contrast, the institutions of the Rechtsstaat, partly realized after 1867 and more extensively after 1989, help to reduce the diversity between and increase the equality in the treatment of the Churches by the law. This contrast is likely to be seen in other spheres of social life.

(1995) CHAPTER FOURTEEN

R. W. SETON-WATSON’S CHANGING VIEWS ON THE NATIONAL QUESTION OF THE HABSBURG MONARCHY AND THE EUROPEAN BALANCE OF POWER

Europe is a delicate organism, in which, if one member sufffers, all the other members sufffer with it. – R. W. Seton-Watson, The Scottish Review, 18 January 1906

Robert William Seton-Watson, historian, writer on current afffairs, founder of the School of Slavonic and East European Studies, has been widely recognized as a champion of the rights of central and eastern Europe’s small nations. His vigorous protests in the British press against Russian policy in Finland in 1904 were, as he recalled in his memoirs,1 ‘my fĳirst serious letters to the press’.2 Two years later he took up the cause of the Habsburg Monarchy’s nationalities, particularly those of Hungary. He felt a strong afffĳinity towards the Slovak and later the Czech nations. During the First World War he steered a vigorous campaign for the replacement of Austria- Hungary, which he had come to regard as an unreformable oppressive state, by independent democratic nation-states. The Making of a New Europe, the title of Hugh and Christopher Seton-Watson’s panoramic biography, testifĳies to the spirit of a Gladstonian liberal intellectual and,

1 The memoirs, on the fĳirst twenty-seven years of his life, written in the 1940s, well over thirty years after the events, were inevitably coloured by his memories of the two wars. Extracts from them were published in The Making of a New Europe, R. W. Seton-Watson and the Last Years of Austria-Hungary by Hugh and Christopher Seton-Watson, London, 1981 (hereafter, MNE). This work provides a basic reference that has replaced much of the earlier works. On Seton-Watson’s relations with Slovak leaders see his account written in 1942 and published in R. W. Seton-Watson and His Relations with the Czechs and Slovaks, eds. Jan Rychlik et al, [Bratislava] 1995, pp. 109–15. 2 MNE, p. 16. The letter which The Spectator published on 13 February 1904 was, for instance, a detailed factual account of the ‘reign of terror’ inflicted on Finland by Russia—not a civilized but a ‘barbarian state’. Finland was not, however, the subject of Seton-Watson’s fĳirst political letter to the press. The Spectator published in June 1902 his letter, sent from New College, Oxford, where he was an undergraduate, in which Seton- Watson protested against the view that Germany had become ‘our new foe’ (MNE, p. 13). See further below. the national question of the habsburg monarchy 439 imbued with a strong sense of justice, speaks up for the underdog. The sources of this moral revulsion are not hard to fĳind. An earnest Presbyterian Scot raised in a family of ‘bonnet lairds’, yeomen farmers, Seton-Watson was deeply influenced by religious literature. Contemporary church afffairs also engaged his interest: I wrote several letters to The Scotsman and The Scottish Review, under the pseudonym of Laicus Juvenis, on ‘Presbyterian Reunion—a Pressing Need’. The scandalous sectarianism of the Highlands had appalled me.3 Above all, Seton-Watson was impressed with a strong sense of Scottish national identity. As R. R. Betts observed, he was The heir on his father’s side to the commercial and on his mother’s to the romantic genius of his Scots ancestry. His great interest in his Seton fore- bears kept alive his Scottish feeling, and perhaps made him the more sympathetic to the rights and sentiments of small nations.4 As he explained in his memoirs, his fĳirst publication, Scotland Forever! and Other Poems (1898), had been ‘written in the high Byronic style’.5 Yet Seton-Watson did not become a narrow Scottish nationalist: he was anglicised by education at Winchester and New College, Oxford. His tutor, H. A. L. Fisher, set him offf on a road to acquire an unusual breadth of historical knowledge, and also a taste for high literature, French, German, Italian, as well as strong liberal political attitudes. His liberalism, however, had more to do with the communitarian Hippolyte Taine, whom he greatly admired,6 than with the dry utilitarian individualism of, for example, John Stuart Mill. Thus religion, nationality, and liberal education, reinforcing each other, all predisposed Seton-Watson towards the defence of the underdog in national conflicts. Should we, therefore, regard him, as has commonly been the case, pre- eminently as a communitarian liberal, pleading the cause of the weak? In doing so we would not do justice to the man, for this view ignores the wider context of his thoughts and his perception of Europe as a whole as

3 The letters were sent between August 1904 and December 1906. See MNE, p. 12. 4 Obituary by R. R. Betts in Slavonic and East European Review, 30, 1951–52, p. 252. 5 MNE, p. 9. 6 See his memoirs, MNE, p. 17. He wrote in the Preface of Munich and the Dictators, London, 1939: ‘I have not written from the angle of any party. Brought up as a Conservative, I was a Liberal for thirty years, and then from 1931 till September 1938 a supporter of the National Government’, p. viii. 440 chapter fourteen

‘a delicate organism’, without which we cannot explain his repeatedly and radically changing attitudes towards particular national groups.7 Obviously his background and education cannot by themselves explain why he became permanently interested in the national conflicts of the Danubian region rather than those of East Prussia, for example, or Russia or Scandinavia.

Germanophile

At every point in his long career, Seton-Watson’s views and concerns on particular national conflicts tied in with and were shaped by general per- ceptions of the European political scene. Around the turn of the nineteenth century, the years in which his interests matured, Europe was rife with national conflicts between and within states. Russia had conflicts with Austria-Hungary over the Balkans and with Great Britain in the Middle East. Germany and France were permanent adversaries. Britain had conflicts with France over interests in Africa. But the central feature of international relations was the growing power of Germany and its rivalry with Britain, exacerbated by the naval race.8 An increasing section of British society perceived Germany as a challenge and a threat. For a liberal like Seton-Watson the central question was how, notwithstanding the strained relationship nourished on both sides by the jingoist press, stability and international peace could be preserved. The answer was, more or less, the conventional one: through the maintenance of the existing balance of power in Europe. The growing strength of Germany, if one examined the issue impartially, argued Seton-Watson, constituted a threat neither to Britain nor to the international order. Clearly, it was his

7 That he radically changed his views is generally recognized. See, for example, G. H. Bolsover’s obituary in The Proceedings of the British Academy, vol. 37, London, 1951, p. 345. 8 See the chapter ‘The Flowering of the Antagonism 1902–1906’ by Paul Kennedy, in his The Rise of the Anglo-German Antagonism 1860–1914, London, 1982 (hereafter, The Rise), pp. 251–88. British imperial self-confĳidence began to ebb with Lord Salisbury’s departure from offfĳice in the summer of 1902. Some Foreign Offfĳice diplomats were alarmed at Britain’s isolation: see Zara S. Steiner, The Foreign Offfĳice and Foreign Policy 1898–1914, Cambridge, 1969 (hereafter: Foreign Offfĳice), pp. 47 and 69. It was at this time that Seton-Watson sent his fĳirst letter to The Spectator on Germany (see below). Antagonism to Germany did not become general even after the entente with France. Lord Lansdowne, the Foreign Secretary, ‘continued to believe in the vanishing possibility of an Anglo-German understanding’, Foreign Offfĳice, p. 48. the national question of the habsburg monarchy 441 attitude to Germany and the need for a balance of power in Europe that explain Seton-Watson’s entry into European politics. They provide the key to understanding his shifting interests and shed light on the views he was to acquire on small nations—a point that has been largely missed by the literature on our subject. The fact itself has always been recognized that he was, and remained for some time, an admirer of Germany—‘a Germanophile’, to use his own epithet—and a strong supporter of British- German friendship at a time when conflicts flared up between the two countries. The explanatory value of Seton-Watson’s attitude to Germany has not, however, been explored. A further point is that Seton-Watson’s Germanophile stance, far from putting him politically beyond the pale, was not even considered outlandish at the time. Certainly, the press, public, and many diplomats could be labelled Germanophobe. Nevertheless, academia in Britain, not much concerned with politics, held German culture and science (well beyond the circles of neo-Hegelian intellectuals) in very high regard.9 A happy graphomaniac and a compulsive writer of letters to the London and the Edinburgh press,10 Seton-Watson changed his views very gradually. We shall have no difffĳiculty in retracing the steps of his political progression. From 1902, the independent, fĳinancially secure young scholar travelled extensively in Europe, studying history and politics, learnt fluently the major West European languages (French, German and Italian, although he never acquired any East European language), but was particularly interested in Germany where, from 1898, he had stayed for long periods. He admired German culture and wrote a prize-winning essay Maximilian I, Holy Roman Emperor.11 In the aftermath of the Boer War he was deeply concerned about the widening rift between German and British public opinion. In a Spectator letter he took issue with another correspondent who had referred to Germany as ‘our new foe’ and argued that ‘the time has come when we should leave offf talking cant about the blood-relationship of the two nations’.12 Seton-Watson took him on:

9 See the introductory chapter of Stuart Wallace, War and the Image of Germany, British Academics 1914–1918, Edinburgh, 1988 (hereafter: War), pp. 1–28, and on the attitudes of James Bryce, for instance, pp. 174–75. 10 Seton-Watson until 1908, fortuitously, used either his own name or the nom de plume ‘Scotus Viator’. 11 Published in London in 1902. 12 The Spectator, 14 June 1902. 442 chapter fourteen

So far from agreeing that to talk of the blood relationship is to talk cant, I believe that now more than ever is the time to foster good feeling between the two nations. The obstacle to this lies not in the German people but in the German Press. In spite of ‘outrageous lies in their papers’, when staying in Germany he met with ‘the kindest possible treatment’ from every German he came across.13 Britain settled her diffferences with France in the Entente Cordiale of 1904 after which the naval rivalry between Britain and Germany became bitter. Yet Seton-Watson did not modify his views. After Kaiser William II’s visit to Tangier, Seton-Watson set out in a long letter to The Spectator his ideas on Anglo-German relations.14 He blamed the Emperor rather than the Reichskanzler for the visit, the aim of which was possibly ‘to test the solidity of the Entente Cordiale, if not to sow distrust between France and Great Britain’. He argued, however, that such an attempt was only natural on the part of an isolated Germany and did not necessarily involve hostility towards England. Seton-Watson explained that ‘expansion is inevitable for a country which is already over-populated, and is growing at an alarming rate every year’. This expansion might, moreover, be purely commercial, ‘in which case she could not be a menace politically to any of her neighbours’, or: She may place before herself the ideal of expansion in Europe at the expense of the Austrian Empire, Holland, and Switzerland. But such a policy bristles with so many dangers and difffĳiculties that only the wildest Pan-German enthusiasts can be said to take it seriously. Or —again— they might decide upon colonial expansion. Germanophobes assumed, Seton-Watson went on, that the Kaiser’s naval policy was directed towards this goal and then drew the hasty and unjust conclusion that this goal entailed an anti-British course. This was not the case: There are but two obvious outlets for German colonial ambitions,—Brazil and Asia Minor; and in neither case would she be running counter to British interests […] there is not a single German of sense or position who desires a policy of aggrandisement against Great Britain […] we should learn to credit the German Government with […] honesty of purpose and to dismiss from our minds the almost childish suspicion which has recently characterised the Press in its comments on our German neighbours […] The future has far

13 The Spectator, 21 June 1902. See also MNE, pp. 13–14. 14 The Spectator, 27 May 1905. the national question of the habsburg monarchy 443

less to fear from German expansion than from our adoption of a selfĳish and unreasoning policy of “Hands offf!” We already have far more than we can digest […] grudging opposition is unworthy of us […] will create resentment against us […] and will supply the strongest arguments in favour of a huge fleet and an aggressive Weltpolitik. There could be no greater disaster for Germany, for Britain and for world peace than a struggle between the two countries. Seton-Watson listed the obstacles to a friendship only to dismiss them as imaginary or transient. Then he went on: A more real danger seems to lie in the Pan-German League and its virulent propaganda. Should its programme ever be offfĳicially adopted, no other course would be left to us save war to the knife. But such a society can never carry weight with men of sense or feeling, and the notoriety which it enjoys is quite out of proportion to its influence in Germany. Indeed, I have met many Germans who had scarcely heard of its existence, and none who did not regard it with equal contempt and disapproval. These obstacles are imaginary or passing. Our common interests, our ties of kinship and religion, which it is the fashion of today to ignore, are inti- mate and enduring. The three great Teutonic nations—Britain, America, and Germany—are the natural allies of the future; and such an alliance, once realised (not on paper, but in fact), would be almost as great a gain to the peace of the world as a European Federation. But Great Britain has a further rôle to play, if she is true to her possibilities. The days of the predominance of a single Power are past, probably forever, and this is one of the most hopeful signs of the future. The old dream of Cardinal Wolsey— England holding the balance of power in Europe—is less fanciful today than it was four centuries ago; for England is the natural mediator between France and Germany. A rapprochement with Germany, so far from causing injury to the entente cordiale, would only enhance its value, by laying stress on its essentially peaceful aims.15 In the same issue the editor of The Spectator, St Loe Strachey welcomed, in a massive editorial, the ‘very able plea’ of Seton-Watson for a better understanding between Germany and Britain as well as ‘the excellent spirit in which is was written’ but, alas could not agree. The ordinary Germans? Yes, they were sound, perhaps among the soundest in the world, but they were not free, and they did not count for much in a country which was only nominally constitutional. It was the rulers of Germany who counted and whose aspirations had to be watched with vigilance.16

15 Ibid. In part quoted in MNE, p. 19 16 The Spectator consistently held this line until the outbreak of war. See Kennedy, The Rise, particularly p. 399. Also, The Spectator took the threat of the Pan-German 444 chapter fourteen

Some time had yet to pass before Seton-Watson came round to this view. ‘No one is more delighted than the present writer at our new friendship with France’, he wrote in September in another Spectator letter. But ‘have we merely exchanged one enemy for another, and is Germany now to be the bête noire instead of France?’ He blamed the Germanophobia of the British press and went on to argue again for ‘supplementing our friendship with France by a rapprochement with Germany’. The obstacles to friendship should be removed by recognizing the German need for colonies: If we admit frankly and loyally the German need for colonies, and make it clear that we shall not oppose its realisation, we shall not only prick the Pan-German bubble (so far as Britain is concerned), but shall remove the temptation to build ships which the Jingo section of our Press is instilling into German minds.17 Strachey again disagreed. He argued that the Pan-German press had begun its campaign against Britain during the South Africa War and had not been restrained by the German government. The German people as a whole deserved sympathy but the autocratic and military forces that controlled their government ‘must be watched with anxious vigilance by all who care for peace, freedom and popular government’. Seton-Watson’s next Spectator letter was sent from Vienna where he had arrived for the fĳirst time on 4 November 1905. His complaints about the vicious circle of misunderstanding between Britain and Germany acquired new dimensions: namely the Eastern question and Austria-Hungary. The Japanese Alliance and the entente cordiale, brilliant achievements as they are, are not enough; they must be supplemented by an understanding with Germany. Last September I ventured to urge that this was a necessary sequel to the entente with France […] Now that Russia is weakened by internal troubles, Anglo-German relations form the pivot of the European situation. Morocco alone presents dangers enough; but at a time when

movement to peace in Europe seriously from the 1890s (see, for example, issues of 18 June 1898, 13 August 1898, 19 January 1901, 16 March 1901, 20 April 1901, 27 April 1901, 22 February 1902). On 19 April 1902 The Spectator wrote that ‘The Magyars are greatly irritated and alarmed by the spread of Pan-Germanism, which they say will alienate the two millions of Germans now living in Hungary, who hitherto have been steady allies of the dominant race’. In January 1905 The Spectator watched the outcome of the Hungarian elections from the point of view of its efffect on Pan-German plans, 28 January 1905. 17 The Spectator, 9 September 1905. the national question of the habsburg monarchy 445

the whole Turkish question may be raised at any moment in an acute form, and when the political outlook in Austria-Hungary is still so uncertain, it is more essential than ever that Great Britain and Germany should go hand-in-hand.18 Seton-Watson developed these ideas in an article for The Scottish Review.19 The independent existence of a reformed Austria-Hungary was now, in his view, an essential safeguard in a rapprochement with Germany, but he was also concerned by ‘the shadow of revolution’ which hung over Europe: The paralysis of Russia afffords many causes for alarm by disturbing the balance of power, which alone has rendered peace in Europe possible. ‘Staggering under the efffects of internal troubles’, the Russian colossus would probably soon be regenerated, and then ‘European Turkey will be thrown into the melting pot’. That situation might obtain ‘in half a dozen other simple ways—by a better aimed bomb at Yildiz, by a fresh rising in Macedonia, by an outbreak of Moslem fanaticism’. He questioned whether the British had a policy for such a contingency. Without Germany no solution is possible; and with Britain and Germany ranged on opposite sides, general war is sooner or later inevitable. However, in the Middle East Britain had a ‘clear opportunity of satisfying the German yearning for “a place in the sun” […] and thus of removing the restless element in Continental politics’. Russia, for its part, could be bought offf by allowing her to take a large share. He went on: Britain’s opposition to such a scheme would be natural enough, if the extravagant dream of the Pan-Germans were ever to be realised, and Austria-Hungary and the Balkan States could be absorbed in a revived Teutonic Empire. But the Habsburg monarchy is the pivot of the balance of power, and its disappearance would be a European calamity […] So long then as Austria-Hungary exists we can view German expansion on the Euphrates with equanimity.

18 The Spectator, 30 December 1905. Strachey again disagreed: alluding to the fĳirst Moroccan crisis he asked ‘how we are to obtain a guarantee that Germany will not once more endanger the peace of the whole world […] Germany will be less, not more, amena- ble to control if we fling ourselves at her head and vow eternal friendship’. 19 ‘The European Outlook’, dated 30 December 1905, which appeared on 18 January 1906. On Seton-Watson’s fĳirst experiences in Vienna and in Hungary, see the comprehensive account in MNE, pp. 28–56. 446 chapter fourteen

Thus, the European balance of power, Anglo-German understanding, and the internal stability of Austria all appeared to be tied together. To sum up, from at least 1902 Seton-Watson thought that European peace could be preserved only through rapprochement between Britain and Germany, which was possible because German aims were legitimate and peaceful. A condition of rapprochement was the recognition of Germany’s need to acquire ‘a place in the sun’ outside Europe which would not hurt British interests. The Middle East offfered an obvious possibility. The ultra-nationalistic, Anglophobe association, the Pan-German League (Alldeutscher Verband, established under a diffferent name in 1891) seemed to be an obstacle to friendship. The League pressed for naval, colonial, and territorial expansion in Europe to turn Germany into a world power. The Pan-German ‘movement’ was the bugbear of the British, and even more the French press. The works of André Chéradame20 and others scared the public with the possibility of a Europe dominated by Germany. For Seton-Watson the Pan-German movement served as a lit- mus paper on his attitude to Germany. As we have seen, before he went to Vienna, he did not take the influence of the movement very seriously. Once in Vienna, however, he began to see the problem as more complex and as afffecting the internal organization of Austria. He was now concerned with the Pan-German designs on the European countries, notably the Austrian half of the Habsburg domains where, after the turn of the century, nearly a third of the Germans supported the League. Seton- Watson had earlier dismissed the Alldeutsch ambitions as a ‘boundless fĳield for vague and flighty speculation’ which ‘only the wildest Pan-German enthusiast’ could take seriously. It would ‘never carry weight with men of sense or feeling’ (27 May 1905), and was only a ‘bubble to be pricked’ (September 1905). The British would not allow Germany to acquire a presence in the Middle East unless they were assured that there was no serious danger of Austria being absorbed into Germany as a country lying on the route to the Middle East. If that situation ever obtained, the domination of the Continent by Germany would follow, disrupting the balance of power, and the world would be heading towards war. Peace in Europe could be maintained only if the Pan-German movement was demonstrably without a future in Austria-Hungary. This presupposed

20 André Chéradame, L’Europe et la question d’Autriche au seuil du XXe siècle, Paris, 1901. This book had an immediate impact in London. Louis Leger and Ernest Denis, both academics, were the leading authorities on the subject in France. the national question of the habsburg monarchy 447 that Austria-Hungary was internally strong. But was it? Seton-Watson was determined to fĳind out.

Hungarian Independentist

When he arrived in Vienna in early November 1905 the Empire was going through its most serious internal crisis since the 1860s. The crown and the Hungarian parliament were at loggerheads. The crisis was precipitated by a unique event. In January 1905 István Tisza’s Liberal government went to the country with a solid majority in parliament and returned after the elections as a minority. (Apart from 1905, no other government ever lost a general election in Hungary before 1990). The new parliament, the Coalition, led by Apponyi and Kossuth’s 48-er Independentists, had a vision to transform the 1867 constitutional Settlement between Franz Joseph and the Hungarian parliament into a ‘personal union’ with the rest of the Empire. Notably, they demanded army reforms, primarily the replacement of German by Hungarian as the language of service and command in the regiments of Hungary. Their demands threatened to split the army into ‘Austrian’ and ‘Hungarian’ parts and trespassed upon the monarch’s prerogatives. Accordingly, Franz Joseph prorogued parliament and, as the Coalition was unwilling to take offfĳice on his terms, he appointed the Fejérváry cabinet, which had no parliamentary support. Franz Joseph insisted that the law was on his side, for the 1867 constitutional Settlement had left army organization entirely in his hands and a united army was a vital guarantee of the Empire’s own unity. The reputation of Hungarian politicians was so fĳirmly established that at the beginning of the crisis public opinion and the press in western Europe were on the side of the Hungarian parliament rather than on Franz Joseph’s. Before the crisis Hungary was seen in London by politicians and the press as stable, progressive, liberal and anticlerical; it was even partly Protestant. The impressive centralized state of the ‘Magyar caste’ was understood as a bulwark against Pan-Slav and Pan-German aspirations.21 Social and national inequalities were merely accepted facts,

21 On this see Géza Jeszenszky, Az elveszett presztizs, 2nd edn., Budapest, 1994 (hereafter: Az elveszett), ch. 3. The views of The Times were generally shared in London. ‘Austria has been sinking into political chaos, while Hungary, in spite of many drawbacks, has made wonderful progress in industry and commerce and, at the same time, has exhibited stability of her institutions and the common sense of her people. She is now coming to be 448 chapter fourteen for democracy and national equality were not yet perceived as political desiderata. Austria, by contrast, was increasingly perceived in London as the soft underbelly of the Empire: the Badeni crisis of 1897 left it in chaos, sufffering from a disorderly parliament where sometimes inkpots, instead of arguments, were thrown about. Moreover, within the western half of the Monarchy Slavonic federalist trends were linked in the public mind with Russian ambitions, and nationalist trends with Pan-German orienta- tions. As the Hungarian crisis unfolded, however, these assumptions were tested and, although it took time for the puerile Hungarian parliament to fritter away its (partly undeserved) reputation, ultimately reversed.22 Bjørnson, the Norwegian writer, who was to attack the Hungarian government over the oppression of nationalities at the Hague Peace Congress later in 1907 had, earlier in 1905, been very sympathetic to Hungarian aspirations for enlarged Home Rule which he saw as paralleling Norway’s own aspiration to attain independence from Sweden.23 The Times, the paper which, in those days, presented hard information about the politics of other countries, was giving a blow-by-blow account of the crisis of the Habsburg Monarchy. Henry Wickham Steed, the Vienna correspondent of the paper, and a man who later acquired a solidly ‘anti-Hungarian’ reputation, was not at all anti-Hungarian before the constitutional crisis. He reproved the 48-ers and Apponyi in particular but was a fĳirm supporter of the Liberals and an admirer of Tisza. Steed regretted Tisza’s defeat but in his reports even he was for burying the 1867 Settlement. Steed agreed that Franz Joseph should make concessions to the Coalition and engineer a new system through compromise.24 Only after the appointment of the Fejérváry government in June 1905 did Steed turn the heat on the Coalition recognised as the predominant partner. The racial jealousies and the party feuds of the Austrian provinces have been steadily working in favour of the transference of the centre of political power in the Dual Monarchy from Vienna to Budapest’, The Times 27 September 1899. The Spectator emphasized Hungary’s political homogeneity (in sharp contrast to per- ceptions after the crisis!) that it had become ‘the unquestioned master power of the Empire’ and that Hungarian expansion through Salonica might reach Asia Minor where it would clash with German interests, 30 September 1899. 22 The Saturday Review warned on 4 March 1905: ‘Hungary can have no future as a great power when standing alone […] One half of Hungary is not Magyar in origin but the dominant race is by far the most cohesive element in the Austrian Empire.’ And later: ‘If Hungary gives the signal for Austrian disintegration, she will do as grave a disservice to the balance of power as to herself.’ 23 Letter to The Times, 14 April 1905 about the dissolution of the union between Sweden and Norway. 24 From Our Own Correspondent (hereafter, FOOC) 1, 5 and 14 February 1905, The Times. For Steed’s account of the crisis see his memoirs: H. W. Steed, Through Thirty Years 1892–1922, 2 vols, London, 1924 (hereafter, Thirty Years), 1, pp. 219–25. In late 1903 Steed the national question of the habsburg monarchy 449 for having stood out for impracticable army reforms, instead of discharg- ing its constitutional duty to take offfĳice. Then from July onwards the Coalition received the full thunder of The Times for plunging the Monarchy into a deep crisis by its refusal to negotiate a compromise over the Hungarian language of command—a tool by which it would magyarise the non-Magyar races.25 Thus Steed turned against the Hungarian politicians only after the 67-ers had lost control and the 48-er ‘separatists’ had become the dominant force in an increasingly chauvinistic Budapest parliament. Once he made that turn the oppression of the non-Magyars of Hungary began to fĳigure as a major theme in Steed’s dispatches. It was important too that he had been an implacable critic of Berlin even before he arrived in Vienna in late 1902 and, in contrast to Seton-Watson, had always taken Pan-German aspirations seriously.26 Knowing his attitude to Germany and his assessment of the Pan- German movement which, as we have seen, was very diffferent from Steed’s, Seton-Watson was, not unexpectedly, won over to the side of the Coalition in its conflict with the crown.27 To say, as British and Hungarian

reported to Moberly Bell at Printing House Square (PHS) that he was learning Hungarian and hoped ‘to break the neck of the language in six months’, The History of ‘The Times’ 1884–1912, London, 1947 (hereafter: The History of ‘The Times’), p. 402. The editors of the volume opined that ‘British observers, including some at PHS, were still biased by a senti- mental liking for the nation of Kossuth’, ibid., p. 478. However, Kossuth had precious little to do with the pro-Hungarian attitude in London. 25 See The Times, 5 July and after. 26 The ambitious young journalist, H. W. Steed, always scheming, ‘had an interest in afffairs that at times recalled the active politician rather than the detached observer’ (The History of ‘The Times’, pp. 283). In vain he was warned by Printing House Square to remain impartial (ibid., p. 284). Steed intimated to Moberly Bell, Managing Director at Printing House Square: ‘I don’t want to lose touch with Italy, because I think that half the schemes of the Pan-Germanists will be upset if a good understanding can be restored and preserved between Rome and Vienna. We have no interest, ditto Italians certainly have none, in see- ing Prussia put her hand on Trieste.’ 29 September 1902, New Printing House Square (NPHS), Steed Papers, Box 1. On Trialism he wrote three years later: ‘I am not at all sure that the F[ranz] F[erdinand] policy is not the best antidote to Pan-Germanism, though the application of the antidote may involve the smashing of the Magyars unless they come to their senses’. H. W. Steed to Valentine Chirol, 6 October 1905, NPHS Steed Papers, Box 2. Even after this he adumbrates that the Magyars, within two years, will have a modus vivendi with the non-Magyars and together they will provide ‘an efffectual break’ on Pan- Germanism. Letter to Moberly Bell, 14 July 1908, NPHS, Steed Papers Box 2. For a comprehensive account of the collapse of Hungary’s liberal image in London, see Jeszenszky, Az elveszett, pp. 175–99. 27 Before they became close associates, at their tense fĳirst meeting in December 1905, Seton-Watson and Steed did not see eye to eye on the political issues the Monarchy faced. Steed alluded to this in ‘Tributes to R. W. Seton-Watson: A Symposium’, Slavonic and East European Review, June 1952, pp. 331–32. 450 chapter fourteen historians habitually do, that when Seton-Watson became interested in the Monarchy he was at fĳirst ‘pro-Hungarian’ is to miss the point. Magyar rule in Hungary, before the crisis, was generally accepted in Britain as benefĳicial to the Habsburg Monarchy and by extension to the balance in Europe. The salient point that begs for explanation is why Seton-Watson lent support for over a year to a political course that aimed to replace the 1867 Dualist system with full blown Home Rule, the system of so-called ‘pure personal union’ demanded by the Independentists. Did he hope that an independent Hungary would be an efffective barrier against the spread of the Pan-German movement in the Monarchy? That he did may be inferred from what we have already established about his politics although the available evidence is only indirect. Hungary was widely regarded before the constitutional crisis in western Europe and especially in London, including The Spectator (see note 16 above), as a serious obstacle to German expansion. Seton-Watson himself was of course keenly aware of the active anti-Magyar propaganda by the ‘Pan-German League’ and of the Hungarian reprisals against the movement in the Banat and Translyvania.28 Further, in a Spectator letter,29 Seton-Watson writes ‘strange as it may sound’ (!) Hungary would be the only conceivable ally of an expanded Germany.30 It may also be relevant that one of the often repeated claims made by H. W. Steed was that the dependence of Hungary on Prussia was something that had to be ‘discovered’ (i.e. it was obscured by the generally assumed façade of an anti-German Hungarian attitude).31 Seton-Watson certainly expected improved political stability in the Monarchy through the meeting of Hungarian aspirations. For quite a while he was a fellow- traveller of the Hungarian Independentist cause. Was it a sign of Seton-Watson’s afffĳinity with the Magyars that he compiled a genealogical table taking his Seton ancestry right back to a king of Scotland, to Philip III of France and thence to András II of Hungary and

28 ‘Scotus Viator’ [R. W. Seton-Watson], Racial Problems in Hungary, London, 1908 (hereafter, Racial Problems), p. 403. 29 The Spectator, 24 February 1906. 30 See below p. 454. 31 Dependence on Germany ‘was the essence of the Dual system’, wrote Steed, ‘though few foreign statesmen perceived it then or afterwards. It was one, if not the chief, of the underlying realities in the Habsburg domains for which I had been seeking but which had again and again escaped me until the collapse of the Magyar resistance under the threat of universal sufffrage, and the efffects of that threat upon Austria, revealed it to me’, that is, in the Spring of 1906. H. W. Steed, Thirty Years, 1, p. 225. the national question of the habsburg monarchy 451

Árpád?32 Seton-Watson regarded the non-parliamentary Fejérváry government with contempt. In a Spectator letter signed ‘Scotus Viator’33 he compared the situation in Hungary to that of England in 1641. (The study of the English Civil War in his early years left, as he wrote, a ‘permanent mark on me’34) If when parliament met it was again prorogued, Baron Fejérváry’s continuance in offfĳice would fĳinally become impossible. One does not need to search far in English history for a similar situation; the incidents of the Grand Remonstrance or of the Five Members might be repeated with equally momentous results. The only alternative policy is Dissolution, and while this involves infĳinitely greater risks, it is the course most likely to be pursued. But the Government did not dare to appeal to the country: Dissolution must be an attempt to govern without Parliament,—that is against the Constitution; and what this might lead to no man living can foresee. Were Deák’s work in constructing the 1867 Settlement to be destroyed, Seton-Watson went on, the confĳidence of the Hungarian people in Franz Joseph would be frittered away: Baron Fejérváry’s calculation, that a Radical programme, with universal suf- frage as its tit-bit, would win over the masses for the government, has proved signally false; and the Coalition leaders can count upon the almost unanimous support of the nation. But it is peculiarly unfortunate that the Hungarian crisis should reach its height at the very moment when the Constitution in Austria is to be placed on a democratic basis, and when the most far-reaching but as yet uncertain changes lie already in the near future.35 In conclusion, Seton-Watson connected the Monarchy’s crisis to the balance of power and Pan-German aspirations: The paralysis of the Dual Monarchy is one aspect of current European politics, which has not perhaps received sufffĳicient attention in England, and this is the more surprising since Vienna is the real pivot of the balance of power. Austrian weakness cuts both ways. It deprives Germany of her chief

32 The author has received a copy from Hugh Seton-Watson. 33 The Spectator, 27 January 1906. 34 MNE, p. 8. 35 This is a reference to the plan of the Gautsch government concerning the introduction of universal sufffrage. 452 chapter fourteen

military ally in the event of a war, and, on the other hand, it offfers a permanent temptation to the predatory instincts of the Pan-German League, whose ‘dovecoats’ (veritable sucking doves!) are more than usually stirred by Baron von Gautsch’s project of electoral reform. The relations of Austria and Germany deserve careful study at the present juncture, and not least from those who, like myself, are strongly Germanophil in sympathy. On 19 February the Hungarian parliament was dissolved with military assistance, an event that increased Seton-Watson’s enthusiasm for the Coalition’s cause at a time when other political observers threw up their hands in despair because of Hungarian foolishness. In a Scottish Review article on the crisis36 he wrote: ‘Hungary lies once more under an absolutist regime’. Parliament was subjected to an indignity comparable only to what happened under Charles I in England. The king had the right to dissolve but the manner in which it was done was ‘glaringly illegal’. The proceedings ‘savour far more of autocratic Russia than of a State whose constitution is as ancient as our own’. Then he produced arguments, which were better and indeed more radical than the ones advanced by the Coalition leaders. The mere fact that such an incident is possible is an overwhelming proof that Hungary does not as yet enjoy the status of a sovereign constitutional State, and that the laws of 1790, 1848 and 1867 guaranteeing her independence, may once more be turned into idle mockery. No impartial student of history could, so Seton-Watson went on to assert, deny the justice of the demand for an independent army. He thus excused the refusal of the Coalition to accept offfĳice because the emperor sought to impose conditions which were tantamount to renouncing the proposed army reforms. The sovereign’s right to withhold his assent from any given law is unquestioned; but his claim to veto in advance the legislation contemplated by the incoming Government is clearly at variance with the constitution.37 For Seton-Watson, the crux of the whole situation lay in the question ‘where does the sovereignty lie—in the crown or in the people?’ Francis

36 Signed on 12 March 1906, and see also Jeszenszky, Az elveszett, p. 196. 37 The ‘preliminary sanction’, or ‘Vorsanktion’, so-called, followed from the fundamental principle of the constitution that legislation was joined between king and parliament. Accordingly, governments had to acquire the consent of the monarch before introducing a bill in parliament. See László Péter, ‘Die Verfassungsentwicklung in Ungarn’, in Helmut Rumpler and Peter Urbanitsch (eds), Die Habsburgermonarchie 1848–1918, 7, Vienna, 2000, pp. 412–13. the national question of the habsburg monarchy 453

Kossuth was right in proclaiming that the dissolution ‘has dug the grave of the compromise of 1867’. Seton-Watson went on:

If we restrict our enquiry to the documents of 1867, we must admit the legality of the emperor’s position. But nothing could be more unfair than to fĳix this arbitrary date as the limit beyond which discussion may not go […] The Ausgleich, like other historical documents, can only be regarded as fĳinal so long as it meets the needs of the nations concerned. Hungary, in her natural development, has outgrown those needs, and a revision is now inevitable. That her great statesmen, Deák and the elder Andrássy, accepted the best terms which were then to be obtained, cannot bind the nation for ever to a denial of her ancient constitution, which knew no such limitations as those of the Ausgleich of 1867. The question, then, is one of fundamental principles […]. Meanwhile, the stubborn fact remains that Hungary lies beneath an absolutist regime […] Let us hope that this phoenix among the nations will once more rise triumphant over every obstacle. In sum, Seton-Watson began with the admission that Hungary was not yet a sovereign state and then went on to argue that the world ought to treat her as such. No 48-er journalist could have defended better the Coalition’s cause. In fact, while the Coalition leaders took for granted that the Hungarian system of government was parliamentary (which of course it was not) they did not distinguish between legality and constitutionality. The 1867 law on the disputed points of army organization was, however, clearly on the side of the monarch. The Coalition asserted ‘state sovereignty’ as the ‘joint’ will of king and nation by reading it into the existing laws. This was, in a revamped form, still the old diaetalis tractatus rather than the principle of the supremacy of parliament. Seton-Watson did better. He did not merely assume that the Hungarian government was parliamentary; by clearly distinguishing constitutionality from legality, he laid claim to the principle that sovereignty rested with the people’s representatives. Meanwhile Seton-Watson expressed in a Spectator letter growing doubts about Germany’s attitude to Austria38:

The Austrian question, like that of the Near East, haunts the dreams of the modern statesman, and renders uncertain the whole political future of Europe. What, then, would be the results of the partition of the Hapsburg Empire, and who would derive advantage from it?

38 Published in The Spectator on 24 February 1906. 454 chapter fourteen

Up to this point Seton-Watson had been explaining the attitudes of the Germans to his British readers. Now he appeared to be reasoning with the Germans and was disturbed by what he had to say. He hoped To prove that the Power which runs the most serious risks from a forward policy in Austria is no other than Germany herself… The propaganda of the Pan-German League, the ravings of such leaders as Schoenerer and Wolf, and the Los von Rom movement, which is engineered by this wildest of all political parties, – all these have thrown a somewhat lurid light upon the future of Austria, and have made us familiar with the possibility of German expansion at the expense of her Southern ally. Such a policy offfers many attractions to the political dreamer. After listing the attractions, Seton-Watson turns to the downside. The disadvantages for Germany would be immense: It is hardly an exaggeration to say that Austria-Hungary, despite its domestic quarrels, forms the pivot of European politics, and that its disappearance would deal a fatal blow to the balance of power. If the Pan-German dream was realized, a large European Coalition would be formed against a totally isolated Germany. Strange as it may sound,—Seton-Watson remarks—the only conceivable ally for Germany is Hungary, and then only in return for such concessions as would ill suit the Pan-German mood. At any rate the Hungarians would be tied down by the Romanians who would make a bid for Transylvania. The Czechs and the South Slavs would fĳiercely resist absorption into Germany. For the Austrian Germans it would mean the loss of dynasty, provincial status, and the replacement of ‘easygoing Gemütlichkeit by the stramme Disziplin of the Prussian system’. Nor would the absorption of parts of Austria help unity inside Germany; Austria could not be assimilated. It would shift the balance between Protestants and Catholics, introduce ‘a liberal element’, and revive the rivalry between Prussia—‘the uncompromising foe of constitutional reform’—and Austria, where the government was pledged to the introduction of direct universal sufffrage and where ‘far-reaching changes are accepted in the very highest quarters’. Seton-Watson thought that ‘William II’s antipathy to popular government would probably outweigh the temptations of an expansive policy’. The editor praised the author’s ‘remorseless logic’ in discussing the unwisdom of the Pan-German movement, although nations, he added, do not invariably reject unwise projects. ‘Happily, however, the Austrian the national question of the habsburg monarchy 455

Empire has not yet gone into the melting-pot’. It was the fĳirst time that the editor, St Loe Strachey, agreed with Seton-Watson on the German question. All in all, early in 1906, Seton-Watson’s German sympathies cooled offf while his interest in Austria-Hungary, because of its importance to the balance of power, was growing. He saw the crisis of the Habsburg Monarchy as a prelude to ‘internal reform’ such as the Hungarian army reform, leading to ‘personal union’ and the extension of the franchise in both halves of the Monarchy. This would sweep away the remnants of autocracy and enable Austria-Hungary to play its providential role in the European balance, but he considered co-operation, even as a hypothetical notion, between a realized Pan-Germany and Hungary to be a ‘strange’ idea. He thought, plausibly, that ‘the rise of the phoenix among the nations’ (i.e. Hungary) might lend security against Pan-German designs. The Coalition took offfĳice in early April and at the end of the month Seton-Watson went to Hungary for six weeks. As often happens with travellers, his fĳirst impression confĳirmed some of the views he had formed of the country.39 In June he was back in Vienna whence in a Spectator letter sent on 26 June he defended the Hungarians against both Dr Lueger’s out- bursts and Franz Ferdinand.40 Yet during the summer his views on Hungary gradually changed. It now appeared to him that the Coalition, instead of being part of the solution, was indeed part of the problem. First of all, it now dawned on him that the Hungarian parliament had lost the battle with the Crown: Kossuth and Apponyi would not accomplish any revision of the 1867 Settlement in Hungary’s favour. Secondly, because the Coalition, in spite of its defeat, did not abandon its programme for personal union,41 its demands became disruptive to the Monarchy and

39 He wrote two years later: ‘During my fĳirst tour in Hungary I was predisposed to accept every word that fell from the lips of a Kossuthist as gospel, and it was only very slowly that the truth began to penetrate through the armour of suspicion which I donned whenever I met a non-Magyar. Indeed I look back now with amusement at the feelings of intense dislike and incredulity with which I fĳirst listened to a Slovak nationalist. I only mention this to show that I fĳirst visited Hungary as a strong partisan of the Magyars, and that it was only their repeated recourse to evasion and sophistry that shook my faith in the justice of their cause.’ ‘In Self-Defence’ in the introductory chapter of Seton-Watson’s fĳirst book, see note 55 below: Racial Problems, pp. 16–17. 40 Published in the 7 July issue of The Spectator. On Lueger Seton-Watson remarked: ‘Indeed, his persistent appeals to the passions of the mob have created a veritable Lueger cult quite as fervid as, and a hundred times less excusable than the “Kossuth Cult” of Hungary.’ 41 During his visit he was confronted by robust demands for separation from Austria. See MNE, esp. p. 34. 456 chapter fourteen

European peace. Logically, as he wrote later, he was gradually ‘converted to dualism’.42 The country had to confront a problem: ‘the future of Hungary turns upon the franchise question’—he wrote to The Spectator.43 The Coalition displayed a fatal error of judgement by refusing to take offfĳice for more than a year and ‘by its incapacity for successful resistance’. This twofold mistake allowed the monarch’s minister, Kristófffy, to put forward his scheme of universal sufffrage which the Coalition then had to accept in April as part of the terms on which it was allowed to take offfĳice. But this reform The majority of Magyars regard with extreme suspicion. No man living can foresee the precise efffects of the measure, or the extent to which it will redress the overwhelming supremacy of the Magyars over the rest of the population. In the circumstances, the Coalition’s refusal to recognise the existence of the new Nationalist Club (i.e. the Roumanian, Slovak and Serb Deputies), as a Parliamentary party must be regarded as another serious tactical blunder. Later he noted ‘the uncompromising attitude of the Magyars towards their own fellow-citizens’. The tone of the article was still friendly towards the Coalition, but there was a warning towards the end. The logical outcome of introducing universal sufffrage Is a modifĳied policy towards the non-Magyar races, on whom it will bestow some share of political power,—for the fĳirst time since Hungary became a modern State. The Magyar dream of replacing the Ausgleich by a personal union can only be realised if the entire nation without distinction of race presents a united front to the outside world. Internal harmony is impossible so long as one half of the nation makes the absorption of the other half its main object in life,—so long as one race retains a monopoly of political and administrative power; and until this harmony is secured Hungary will never be strong enough to stand alone. The Magyars can use Vienna against the nationalities, or the nationalities against Vienna; they cannot resist them both together. Thus, the two problems of the franchise and the nationalities supply the key to the whole future of Hungary.

42 ‘I fĳirst visited Hungary’, he wrote, ‘as an enthusiastic admirer of the Independent Party. Two months of travel and conversation (chiefly with members of that party) cured me of my enthusiasm; and a winter spent quietly at home in the study of Hungarian history converted me to Dualism and convinced me of the danger with which the policy of the Coalition Government threatens Hungary and Europe alike.’ The Spectator, 20 July 1907. Note that Steed, a shrewd observer, from the autumn of 1905 assumed that the Coalition was only a paper-tiger. 43 The Spectator, 29 September 1906. the national question of the habsburg monarchy 457

Doubts about the viability of the Coalition’s constitutional programme compelled Seton-Watson to shift his interest to electoral reform in order to end the domination of the other nations by the Magyars.

Defender of the Nationalities

‘Hungary at the Parting of the Ways’ was the title of The Spectator article of 20 October. It represents a new political outlook on the part of Seton-Watson.44 The realization of personal union between Austria and Hungary which he had earlier seen as medicine against the danger of Pan-movements was fĳinally perceived by Seton-Watson as only increasing those dangers. He now abandoned the programme, whose realization could but ‘further disturb’ the balance of power in Europe. Instead, he urged the Magyar leaders to carry out liberal reforms and avoid disorder in their country by being primi inter pares among the nations of Hungary rather than their masters.

The present situation in Hungary, quite apart from its intrinsic interest, compels our attention by reason of the international issues at stake. The internal state of Russia and the uncertainties of Balkan politics make it more essential than ever that the balance of European power should not be further disturbed. Should Austria and Hungary separate, one of the Great Powers would disappear and be replaced by two second class States, the Eastern question would enter upon an entirely new phase, and the Russian autocracy might fĳind its last hope in the project of Pan-Slav expansion. Instead of pursuing the independentist course, the Coalition ought to introduce general sufffrage. But the Wekerle government was dragging its feet on the franchise reform.

The rooted dislike with which the Magyars regard any extension of the franchise will soon reveal itself to the outside world; and it will be seen that M. Kristófffy’s scheme of universal sufffrage was really an appeal from the Magyar caste to the Hungarian nation. In this country Hungary is too often regarded as a national State like France or Germany. In reality it is one of the most polyglot States in existence […] Out of a population of nineteen millions, only forty-fĳive per cent are Magyars, and even that proportion includes a large Jewish element and the converts of all the other races […] But while in numbers Magyar and

44 He was now a correspondent for The Spectator. See MNE, pp. 40–41. 458 chapter fourteen

non-Magyar are almost equally balanced, Magyar is, of course, the State language, the language of the Central Parliament and the county Assemblies, of justice and administration. Even where the vast majority of the population was non-Magyar,

State education is exclusively Magyar, though this is not in accordance with the Fundamental Laws of 1868, and even the subsidies granted to non-Magyar confessional schools have control and Magyarisation as their ulterior aims. Thus the Magyars, ‘and those who profess themselves as Magyars’, have a complete monopoly over public life. Their language—he remarks here—is incapable of the all-important distinction between ‘Magyar’ and ‘Hungarian’. He then gave chapter and verse on national discrimination bringing together an impressive battery of facts about the country’s poor civil rights record. Then he returned to foreign policy: as ‘each of the non- Magyar races possesses a racial Hinterland beyond the frontier’, the racial question complicated foreign policy, ‘and this would be more than ever the case if Hungary were to separate from Austria’. Next he gave more arguments against separation—and fĳinally Seton-Watson made a plea to the Magyars: Will they at this crisis of their fate rise to a true conception of their duties towards their country as a whole? If they do, […] they must abandon all thought of racial domination, and put themselves at the head of the Hungarians as leaders who are primi inter pares, not masters. They must base their action on liberal principles [and in that case they] […] can secure a Hungary united by the amalgamation of the various races, the future safety of their country will be secured. If, on the other hand, they, the natural leaders of Hungary, refuse the necessary sacrifĳices, and attempt to maintain a sectional domination, nothing but evil and anarchy can be the ultimate result. Seton-Watson’s about-turn on his assessment of Hungarian afffairs followed, with over a year’s delay, the about-turn in the London press. The ‘Hungarian crisis’ shattered the serviceable mould into which Hungarian politics had earlier been cast.45 And pari passu the perceived disorder and reprobation of Hungarian afffairs, Austrian politics marked up improvements in London. Seton-Watson welcomed the Bill, passed by the Reichsrat in December 1906, introducing universal and direct manhood

45 From the summer of 1906 the entire London press became increasingly critical of Hungarian politics. the national question of the habsburg monarchy 459 sufffrage as a ‘great reform’. There was every hope, he wrote, that the Pan- German Party would collapse and that party conflicts would in future be based ‘on political and social rather than on racial grounds’.46 It is frequently argued (chiefly by Hungarian historians) that the main reason why British opinion turned against Hungarian politics was the diplomatic line-up in the European system of the two rival alliances which had followed the Anglo-French Entente Cordiale of 1904.47 This is mistaken, for the evidence does not bear out this inference. First of all, ‘the entente did not bring Britain into the European alliance system’.48 Further, ‘the rivalry with Germany had become the key factor in British diplomacy’ already in 1904—wrote Zara Steiner49—when, we can add, both the Foreign Offfĳice and the press remained pro-Hungarian. Indeed, the Germanophobe views of The Times, The Spectator, The Saturday Review and the National Review went (for, as we have seen, good reasons) hand-in-hand with pro-Hungarian attitudes. On the other hand, 1907, the year when the reputation of Hungarian politicians reached the point of nadir in the west European press, was a year of general improvement in international relations. Foreign Offfĳice criticism of the Hungarian oppression of the Slavs became ‘increasingly severe’ only after 1909.50 Furthermore, criticism of Hungarian political conditions became stronger after 1910 when the opinion of Austria in the London press improved.51 Clearly, the British about-turn on the Hungarian course was the product of the Hungarian parliament’s immature behaviour which threw the Monarchy into the 1905–06 constitutional crisis that enfeebled it as a great power and unmasked the policy of magyarization. The change of opinion had thus nothing to do with the system of alliances. There was, however, one other factor, generally neglected, which afffected British attitudes, including Seton-Watson’s, to the Habsburg Monarchy which can only be briefly touched upon here. With the ‘Liberal

46 The Spectator, 29 December 1906. 47 This view originated in the contemporary press in Budapest: Hungary, because of the alliance with Germany, lost the sympathy of the British, wrote the Budapesti Hirlap on 28 September 1905. 48 Steiner, The Foreign Offfĳice, p. 47. 49 Ibid., p. 55. See also Kennedy, The Rise, pp. 287–88. 50 F. R. Bridge, Great Britain and Austria-Hungary 1906–1914: A Diplomatic History, London, 1972, pp. 36–37. On the gradually deteriorating views in London on Hungarian politics, see pp. 25–26, 35–38. 51 Ibid. See also The History of ‘The Times’, pp. 839–42, excerpts from the Austrian and British press. 460 chapter fourteen landslide’ at the 1906 general elections the face of British politics changed. Radical liberals appealed to the people in the name of social reform and democracy became a political issue. Also mass politics established strongholds in many other West European countries after the turn of the century. Narrow franchise in a far away and predominantly Catholic agrarian country like Hungary had even a few years before been acceptable in London as compatible with a liberal outlook and expectations. This was no longer the case after the Liberal Party returned to power in London. And when the principle of democracy was applied to a multinational state like the Habsburg Empire, it had to involve, in some form, equitable arrangements on nationality. This was why Austrian politics in which the franchise was radically extended in 1906 scored points while the Hungarians failed to notice that in the twentieth century the political goalposts had been moved. Seton-Watson’s ideas, developed in 1906, led to two influential publications that turned their author from a controversial polemicist to a recognized authority on the Habsburg Monarchy. The Future of Austria-Hungary and the Attitude of the Great Powers, partly based on Spectator articles, was an extended essay on the theme that ‘Austria-Hungary, despite its domestic quarrels, forms the pivot of European politics, and that its disappearance would deal a fatal blow to the balance of power’.52 ‘France and Great Britain must make every efffort to preserve the Dual Monarchy (however modifĳied internally)’.53 Each chapter deals with a disruptive national movement that threatened the integrity of the Monarchy. The essay begins with the Pan-German movement then moves on to Russia and the Pan-Slav movement, ‘Italian Irredentism’, the Pan-Serb and Pan- Croat stirrings, and Romanian Irrendenta. The last chapter considers the danger of Hungary’s separation from Austria. An independent Hungary could not survive, Seton-Watson argued, because of the conflicts with the nationalities which the policy of magyarization had engendered.54 The other work, soon to become a classic, was a substantial monograph which appeared in 1908 as Racial Problems in Hungary.55 It was dedicated

52 ‘Scotus Viator’, London 1907, p. 4. 53 Ibid., p. vii. 54 Interestingly, the leading organ of the Coalition, the Budapesti Hirlap, reviewed the book rather favourably taking exception only to the points on forcible magyarization, 24 May 1907. 55 R. W. Seton-Watson, Racial Problems. This volume included a statistical section on the distribution of nationalities, large numbers of translated documents given in the the national question of the habsburg monarchy 461 to a Hungar nemzetnek (Hungarian nation, as opposed to Magyar nation) which was to be created within the Dualist system of the Magyar as well as the non-Magyar nationalities or ‘races’ as he called them.56 The message was that only an extension of the franchise and the creation of national harmony would enable Hungary to play the role required by a strong Monarchy—a European necessity. The political programme set out in the concluding chapter of the book57 did not aim to do more than rough justice to all the races. Oppression and magyarization should cease through the introduction of liberal and democratic measures that would transform national and local government. But federalism he ruled out and even provincial autonomy, for that Would weaken not merely the Magyar race, but also the Hungarian nation; while the possible advantages which it might secure to the Nationalities could be attained far more efffectively by less drastic measures.58 The view that Europe needed a strong Monarchy, on the basis of dualism, was the vital consideration. By the time the book appeared Seton-Watson had become more pes- simistic about the prospects of internal political reform being carried out by the Hungarian government. His interest now turned to the South. In his next major work, The Southern Slav Question59, he considered the conflict and the possibilities of cooperation between the Croats and the Serbs. The Monarchy annexed Bosnia in 1908—an act which Seton-Watson approved since it restored the Monarchy’s place in Europe. He deplored only Aehrenthal’s methods of carrying out the annexation, and he now came to the conclusion that dualism could not, in the long run, save the Monarchy and the balance of power in Europe; only trialism could.60 The unity of all the South Slavs in one form or another would have to appendices and a comprehensive bibliography. ‘In Self-Defence’, an introductory (pp. xi– xx), the fĳiercely independent author, reflecting on the German and Hungarian responses to his Spectator articles, was particularly incensed by ‘the unfair controversial methods of the Magyar Press’ (p. 14). They questioned the probity of Scotus Viator. ‘Magyar Psychology’ was, he surmised, unable even to imagine that somebody might express independent and critical views without having been bribed to do so. 56 Meeting Hungarian offfĳicials, Slovak, Romanian, and South Slav leaders, enabled him to describe the national conflicts in his book based on fĳirst hand information. See MNE, pp. 43–55. 57 Racial Problems, ch. 21. 58 Ibid., p. 409. 59 London, 1911. 60 MNE, pp. 75–76. The book was dedicated to the Austrian statesman possessing ‘the genius and the courage necessary to solve the Southern Slav Question’. 462 chapter fourteen come about sooner or later. European stability required that this unity should be accomplished inside the Monarchy—rather than outside—by bringing a South Slav state into partnership with Austria and Hungary. This would improve the Monarchy’s standing and would weaken its dependence on Berlin.

Epilogue and Conclusions

We can continue with our subject only in the form of the briefest outline for the rest of Seton-Watson’s long eventful career. As is well known, shortly after the outbreak of the First World War, he abandoned his belief in the Habsburg Monarchy as a European necessity, for Austria-Hungary had become dependent on Germany to such a great extent that it could no longer perform its providential role. His conclusion was that the Monarchy and historic Hungary had to be dissolved. The system based on national dominance and oppression was to be replaced by one based on national and social justice. Seton-Watson’s conception of ‘New Europe’, made up of independent states, was based on the principle of national self-determination as a new source of legitimacy. It looked as though the idealism of the New Europe placed the preservation of the balance of power behind the requirement of national justice. If the principle of nationality furnishes the legitimacy of the state system then state boundaries must follow, so far as possible, the boundaries of nationality. Where the population is mixed the principle of equity may call for leaving roughly the same number of people on the wrong side for each nation.61 This, of course, did not happen in the peace treaties that followed the First World War. Large chunks of territories on the losing side, containing millions of people of the ‘wrong’ nationality, were given over to the winning states in violation of the nationality principle (collateral damage of sorts). Seton-Watson had a hand in drawing up the new borders although the peacemakers disregarded many of his ideas that were to leave fewer co-nationals on the ‘wrong’ side. After the peace treaties had been signed, however, and throughout the interwar period, Seton-Watson defended the peace treaties in the name of justice and rejected plans for territorial revisions demanded by the aggrieved side. For instance, he rejected as unjust the Hungarian demand for revision to reattach Hungarians to

61 The 1920 border between Austria and Hungary (two defeated nations) may be regarded as an example. the national question of the habsburg monarchy 463

Hungary on the grounds that the borders established after the War followed decades of forcible magyarization.62 The reasons for these attitudes are not difffĳicult to detect. The destruction of the Habsburg Monarchy had left a power vacuum between Germany and Soviet Russia. The states of New Europe had to be strong to provide stability and act as a necessary counterweight to two large, paramount neighbours. Geographic, economic and strategic arguments were used, all of which contravened the nationality principle, in order to bolster the position of the new states. The principle of nationality had to be subordinated to the requirements of the balance of power. In sum, the attitudes of the man who had championed the smaller nations altered radically, and it seems that, at every turn, Seton-Watson’s adjustments in opinion were dependent upon his changing perception of what was required to maintain the European order. The changes in R. W. Seton-Watson’s attitude towards the nations of the Danube region provide a good example of how a West European liberal is likely to respond to small nation nationalism. We shall fĳind him on the side of parliament rather than the crown in a constitutional conflict; he is likely to be on the side of a national minority rather than an oppressive government; he will be dismayed when he discovers a gap between a liberal façade and the underlying reality of intolerance; and he will offfer plans to reform the institutions, bring about national harmony, and improve stability. Exceptionally, notably after a successful war, he may want to create new states in place of old ones. A West European liberal, however, does not really believe in national self-determination. His attitude to small nation nationalism is always part of a wider speculative view of international relations to which the aspirations of small nations are subordinated, although this is hardly ever made clear. The roots of this ambivalence may lie in the failure of West European liberals to develop a satisfactory attitude to nationalism. Their position on national conflicts has been shaped by expediency as much as by their belief in justice. An important part of the problem is that the boundaries and perhaps even the very distinction between ‘nation building’ (which as it makes for stability the liberal would certainly approve) and restrictions

62 Although magyarization before 1918, either spontaneous or forced, did not, of course, afffect the disputed and largely agricultural strips of lands with indigenous Hungarian populations from Middle Ages as, for instance, the Grosse Schütt, the ‘Partium’ and parts of Voivodina. On this, see C. A. Macartney, Hungary and Her Successors, Oxford, 1937, pp. 73–79, 251–53, 380–81. 464 chapter fourteen imposed on national minorities or ‘forceful cultural engineering’63 (which he would have to condemn) is far from self-evident. Hence, the possibility that other considerations, particularly the efffect of the policy on the state system, will shape his judgement. In liberal political writing there is nearly always a bias in any given situation of international relations towards the maintenance of the existing order. If a state is able to change the ‘nationality’ of its population by coalescing diverse cultural groups into a single community, while maintaining or enhancing the stability of the area, the liberal will, approvingly, call it ‘nation-building’. When he thinks that the opposite is the case and the pursuance of a nationality policy reduces political stability in the area he will condemn it as ‘national oppression’. There is nothing wrong with this. However, the basis of the liberal’s judgement is then not ‘the rights of nationalities’ but his preference for political stability. Yet political writers are more reluctant to recognize this. They run together the arguments about the rights of nationalities and the need for political stability without distinguishing one from the other and without marking out the exact place each has in the argument. The unresolved conflict between the principle of nationality and the requirement of international stability becomes acute in border disputes and especially when new states are created. As justice is indivisible, national self-determination requires equitable application of the principle towards all parties. However, state borders that follow some ethnic-linguistic line may not be necessarily the ones that make a state viable. In case of conflict which principle should come fĳirst: nationality or international stability? The liberal will either fudge the question or throw up his hands in despair. As the twentieth century moved on, ‘a plague on both your houses’ became a fairly common liberal attitude towards local national conflicts. It could be argued (perhaps in defence of the liberals) as writers of international relations tend to, that the dilemma is intractable. For the principle of nationality, that is national self-determination, is a moral principle whose realization is demanded in the name of justice. In the state system, as Hedley Bull argued,64 there is no general incompatibility between ‘order in the abstract’ and justice, yet they are, in practice, in

63 See K. R. Minogue, Nationalism, London, 1967, p. 133–38, G. H. N. Seton-Watson, Nations and States, London, 1977, pp. 429–33, Ernest Gellner, Nations and Nationalism, Oxford, 1983, p. 101, and E. J. Hobsbawm, Nations and Nationalism since 1780, Cambridge, 1990, pp. 93–110. 64 Hedley Bull, The Anarchical Society, A Study of Order in World Politics, 2nd edn., London, 1995, pp. 83–89. the national question of the habsburg monarchy 465 endemic conflict. International order is prior to the principle of justice in the sense that justice is realizable only in the condition of order. From this, however, it does not follow that order in all cases should have precedence over justice. Yet, The conflict between international law and international justice is endemic because the situations from which the law takes its point of departure are a series of faits accomplis brought about by force and the threat of force, legitimised by the principle that treaties concluded under duress are valid.65 Today this all sounds plausible enough (except, of course, for the losers of territories). Whether this perspective would have been acceptable to R. W. Seton-Watson and indeed to his generation of liberal activists is doubtful. They were preoccupied with order and they also believed in national justice, but how these two concerns may be connected can only be a matter of conjecture.

65 Ibid., p. 88. INDEX

Albert I (King of Germany) 28n Austria(n) (Empire) 2, 10, 55, 58–59, 87, Ady, Endre 400 134, 222, 335, 338, 341, 359, 360, 393, 400, Anderson, Matthew Smith 200n, 280n 442, 448n, 454, 462, 446, 457, 458 Andics, Jenö 433n Austro-Hungarian Monarchy 32, 59, 87, András, Imre 426–27n, 430n 91, 93, 97, 123–25, 147, 217–22, 228, 306, Andrew (András) I (King of 395–97, 401, 404, 438, 440, 445–46, Hungary) 27–28n 454–55, 462 Andrew II (King of Hungary) 39, 41n, autocratic principle of the law 5, 7, 10, 164, 115–17, 119, 121, 122n, 125, 193, 450 166, 281–304 passim, 406–08, 411, 419, (Golden) Bull of 46n, 116n, 118–19, 142 430–32, 436 Law of 121–22 Andrew III (King of Hungary) 28 Babits, Mihály 400 Andrássy, Count Gyula 10, 59, 228, 246, Bach, Alexander 249, 254n, 264+n, 269n, 272, 286, 299, régime of 11, 126–27, 131, 286, 312, 324 315n, 316, 318n, 322, 334–39+n, 355, 357n, Badeni, Count Kasimir Felix 359, 362n, 371n, 379n, 384n, 453 crisis in 1897 227, 391, 395, 448 government of 249–50, 254, 269, 272, Bak, János 25n, 27n, 29n, 40n, 42n, 324, 343, 414 45–46+n, 89n, 115n, 119+n, 133+34n family of 333 Balás, Elemér P. 136n Andrássy, Count Gyula the Younger 60, Balázs, Éva H. 31n, 193n, 307–08n, 326n 322–33, 373, 377–79, 385n Bálint, János István 86n Angevin kings 117–18 Balkan States 400 Anglo-Japanese Alliance (1902) 444 and Pan-Germanism 445 April Laws (of 1848) 2, 7–9, 12, 55–56, and Austria-Hungary 445 63+n, 126, 129, 174, 194, 199–200+n, Baló, György 168n, 171n, 176n 207–08, 221, 233, 236–37, 239, 241, Balogh, Jenö 96+n 243–44, 247, 249–50+n, 285–86, Balogh, József 35–36n 288, 323, 346 Balogh, Pál 387+n Asztalos, Miklós 122n Balogh, Péter 143 Anglo-German relations 444–45 Banat 51, 450 Angyal, Dávid 157n Bánfffy, Baron Dezsö 53, 318n, 331, 333, Antall, József 170n, 175, 198n, 261n 336, 338n, 379n government of 173 government of 129, 375 Ányos, Pál 32n Bántornyi, James 62n Apponyi, Count Albert 79+n, 82–83, Barabási, (Kun) József 54n, 373n 89–91+n 92, 94, 96, 150, 223, 225–27, 296, Bárány-Oberschall, Magda 19n 322, 324+n, 328+n, 334–35+n, 337, 339n, Baráth, Ferenc 318n 364–74+n, 377+n, 379n, 382, 385–86, Barits, Adalbert 73, 87, 125, 161 388n, 447–48, 455 Barnett, Anthony 170n Apponyi, Count György 243n, 324, 365+n Baross, Gábor 383n family of 333 Barta, István 126n, 190n Aranka, György 73, 87, 125 Bartal, György 350–51 Aristocracy 31, 187, 304–09+n, 313, 319–20, Bartoniek, Emma 26–28n, 30–31n, 323–33 passim, 397 35–36n, 38n, 41–44n, 77n, 98n Army question 273, 355–92fff, 447–49 Báthory, András 39n Ascherson, Charles Neal 170n, 181n Batthyány, Count Lajos 27 Ash, Timothy Garton 170n government of 8, 11–12, 126, 205n, 209, Augusz, Baron Anton 13, 240+n, 348, 352 237, 298 468 index

Batthyány, Count Lajos (Cont.) Burleigh, Michael 22n family of 333 business classes 306+n Batthyány, Count Tivadar 338n Buza, László 340n Beksics, Gusztáv 65n, 89+n, 210n, 369+n, 374n Cartledge, Sir Bryan 115n Béla III (King of Hungary) 20n Catherine the Great 170n Béla IV (King of Hungary) 20n, 117–18 Charles I (King of England) 452 Belcredi, Count Richard 248n Charles III 122, 199n Bencsik, Mihály 66 Charles IV 33, 122+n Benda, Kálmán 15+n, 24n, 27–29n, 31–33n, Charles Robert of Anjou 29, 42–43n, 118 108n, 120n, 125n, 307n Charles VI 199n, 272n bene possessionati 7, 61+n, 123–24, 200, Chéradam, Andre 446+n 308, 310 Chirol, Valentine 449n Benedict, Anderson 108n Chorin, Ferenc 301 Bentham, Jeremy 4, 140 civil rights 10, 281–82 285, 289–90, 291, Beöthy, Zsigmond 73+n 301–03, 409, 425, 458 Berend, Iván T. 308n civil society (polgári társadalom, polgári Berlin 399, Treaty of 22 társaság) 6,7, 56, 114, 159, 201–02, 310, Bernáth, Zsigmond 412n 362, 405–06, 421, 423–25, 436 Bernatzik, Edmund 209n, 213n, 218+19n, Communism 11, 16, 102–03, 151, 153, 167–76 227+n, 238n, 264n, 269n, 271n, 276n, passim, 179, 198, 200–01, 405, 425, 436, 289n, 294n, 299n, 361n, 372n, 376n, 381n Concha, Gyözö 73–74+n, 79–85, 87–89, Bertényi, Iván 19n, 20, 22n, 28n, 31n, 33n, 93–95+n, 111, 124n, 150, 161–62n, 166+n, 38n, 102+n, 110n, 116n 224–25+n, 284n, 287n, 339+n, 342+n, Bertier de Sauvigny, Guillaume de 187n 371n, 409n, 423n Berzeviczy, Albert 132n, 311–13n, 324n constitution (constitutionalism) 6, 8–10, Bessenyi, György 184–85 19, 32–33, 55, 58, 65–66, 75, 78, 81, 105, Betts, Reginald Robert 439+n 117, 153, 155, 164, 168, 172, 176–80 191–96, Beust, Count Friedrich Ferdinand von 248 199–201, 206, 209, 215, 217, 225–26, 228, Bibó, István 171n 230, 233, 236, 243–46, 255, 274, 277–78, Bismarck, Otto von 240, 351, 360 280, 288, 290, 293, 332, 337, 349, 355–60, Bittó, István 318n, 357n 363–67, 370, 372, 377, 381–82, 386, 389, Bjørnson, Bjørnstjerne Martinius 448 392, 410, 423+n, 435 Bocskai, István 59n, 120–21 British 69+n, 86–87 Bohemia 25, 39–40n, 114, 217, 393, 395–96 conversion of in Hungary 6,7, 199–212 Czechs 438, 454 passim, 290 Bölöny, József 319n, 333n corona regni, crown of Hungary 15, 18–19, Bolsover, George Henry 440n 25+n, 32–34+n, 39–40, 42+n, 58–60+n, Bolzano, Bernard 400 64, 66, 68, 70, 72, 76, 90, 102, 104, 106, 121, Bonfĳini, Antonio 30+n, 106 149, 159, 196, 326, 358 Bónis, György 48n, 86n, 98n, 101, Cranmer, Thomas 29 135n, 150+n Croatia, Croatia-Slavonia, Borbándi, Gyula 20n Croat(s) 42–43+n, 50n, 56–57+n, 141, Böszörményi, Zoltán 132 147, 189, 203, 205n, 209, 229, 243, 268, Brackmann, Albert 21–25 299, 314, 344–45, 355, 395 Bramsted, Ernest Kohn 160n, 407n Csáky, Count Albin 84n Bridge, Francis Roy 459n family of 333 Broch, Hermann 399 Csáky, Móritz 329n, 331n, 410n, 412n Brunner, Otto 229n, 280n Csaplovics, János 87+n Brušák, Karel 403 Csekey, István 86n, 90n, 136n, 224n Bryce, James 93n, 226+n, 441n Csemegi, Károly 64n, 76–77+n, 81–82, 88, Budapest 306, 396, 448n 110, 289n Bulányi, Páter György 430n Csengery, Antal 41n, 221, 246–47, 250n, Bull, Hedley 464+n 258, 270–72+n, 322 index 469

Csengery, Lóránt 41n Dickson, Peter George Muir 307–09n, Csiky, Sándor 293+n 326n Csizmadia, Andor 138n, 297n, 314n, 317n, Diehl, Charles 113+n 321n, 410–11n, 414n, 422n, 424n Diószegi, István 261n, 372n Cushing, George 399–400 Dolmányos, István 379n, 383n Czech nation see Bohemia Domanovszky, Sándor 162n, 187n, 307n, Czigány, Lóránt, 15n, 32n, 87n, 184n, 213n 309n, 326n Cziráky, Antal 7, 53+n, 70–72+n, 125, Donászy, Ferenc, 92 145, 159–60n, 162n, 234, 283n, 408n, Donáth, Gyula 150 415n Doppelpoligkeit 44+n, 82 Cziráky, Count János 246n Dózsa, Elek 76+n Dresden 399 Dalmatia 42n, 43, 56n, 203 dualism 9–10, 13, 83, 87, 166, 199+n, Darányi, Ignác 328+n, 373n 213–15+n, 229, 274, 316–18, 321, 325–26, Dárday, Sándor 166n, 294n, 411n, 418n, 343, 356–58, 363, 373, 388–89, 395–96, 420–21n 422, 450 Dávid, Ibolya 17n of crown and ország 4, 106, 201, 232, Deák, Albert 95, 379n 229, 235, 253, 322, 357–58, 362, Deák, Ernö 426n 370, 388 Deák, Ferencz 3, 8–11, 13, 32, 32n, 41n, 57, 59+n, 62, 90n, 91, 97, 124, 127, 140–41, 174, Eastern (Turkish) Question 444–45 194n, 201, 205–06, 215, 221–22, 228, 230, Eckhardt, Sándor 155–56n, 157n, 193n 234, 239n, 241–44, 247–49, 258–63, 269n, Eckhart, Ferenc 11, 26n, 28n, 30–31n, 272, 277–78, 293, 311n, 313n, 316, 324, 327, 34–35n, 37–40n, 42–46n, 48n, 50n, 330, 334, 335n, 344–55, 359–61, 370, 376, 52–53+n, 55–56n, 58–59n, 62n, 66n, 419, 453 70n, 72n, 80n, 81, 83–86+n, 88+n, May 1865 Programme of 59, 247, 92n, 97–101+n, 104, 116–17n, 120n, 252, 254 136n, 140n, 151n, 203n, 225n, 317n, Party of 250, 295, 324, 327, 343–44, 410n, 415n 356, 365 Eddie, Scott M. 308n and Settlement 9, 258, 260, 324, 329, Egyed, István 287n, 424n 357, 359 Eibner, John 177n, 426–27n, 428–33n Deák, István 12, 383–84+n Eile, Stanisław 401 Debrecen 32 Eisenmann, Louis 226+n, 259n decree (rendelet) 4, 6, 10, 144–45, 165n, Elbe River, 114 284, 408, 410–12, 415–18+n, 421–22 Éliás, József 426–27n royal 414, 416 Elisabeth of Gorizia-Tyrol 28–29n decretum, decreta regni 4, 41n, 44n, 49, 98, Ember, Gyözö 156n 115–16, 134–39n, 142, 144, 146, 158, 160, Emden, Cecil S. 315n 203, 207, 232–33, 284, 322, 409 Emeric/Emericus 26n, 35 Deér, Josef (József) 19–20n, 23–28, 37–38n, Engel, Pál 25n, 45n, 115n, 117n, 131n 40n, 42, 98n, 100+n, 106n Engel-Jánosi, Friedrich 363n Degré, Alajos 116n, 118+n Entente cordiale 442–44, 459 Dell’Adami, Rezsö 147 Eötvös, Baron József 62+n, 68, 88, Dessewfffy, Count Emil 324n 201, 205, 259n, 261+n, 263n, 269n, Dessewfffy, Count Aurél 323+n, 328, 373n 288, 299n, 345–46, 351–53, Dessewfffy, Count József 188 413–21 family of 334 Erdélyi, László 99n D’Eszlary, Charles 16 Erdmann, Gyula 308n De Quincey, Thomas Penson 401 Ereky, István 123n, 138n, 157n, 284n, desuetudo 122, 147n, 150n 287n, 321n diaetalis tractatus 4, 5, 8, 126, 158, 163, 174, Esterházy, Péter 104 200, 207, 231–32, 238, 243, 250–51, 270n, Eszterházy, Count Imre 155, 318n, 331 358, 388, 453 family of 333 470 index

Europe, European 18, 25, 106, 116, 181, 438, Gaj, Ljudevit 203 444, 446, 454 Galántai, József 248n Evans, Robert J.W. 15, 51n, 315n Galicia 51, 203, 395, 421 executive power 2, 7, 284, 291, 314, 408, Garami, Erika 75n ex lex 378, 391 Gautsch von Frankenthurn, Baron Paul 451–52+n Fabinyi, Teofĳil 79–80+n, 83, 223–24+n, 371 Gellner, Ernest 464n Falk, Miksa 41n, 59n gentry 7, 9, 61n, 195, 200–05, 207, Farrell, John 397, 401–02 230, 261, 278, 305–42 passim, 348, Fehér, Dániel 103n 351–52 Fejérváry, Baron Géza 318n, 337–38, 355, Georch, Illés 73, 125, 146 357n, 378+n, 380, 388n, 392 George VI (of England), 29n government of 338–39, 389, 423n Gerard, Bishop 26n Ferdinand, Archduke 120 Gerbert of Aurillac 21 Ferdinand I, Emperor 30 Gergely, András 323n Ferdinand V, Emperor 54, 209, 250 Gergely, Jenö 427n, 429n Inaugural Diploma of 122, 139, 233 Gerics, József 24n, 120n Ferdinand, Gejza 90n, 383n Germany, German(s) 23, 33, 194, 306, Ferenczy, Zoltán 192n, 194n 314, 319, 348, 354, 357, 359, 393–97, Fest, Sándor 87n 403, 406–07, 440–45+n, 450, 454, Fichte, Johann Gottlieb 82 459, 463 Finn, Viola 341n, 398, 403 Gerö, András 317n, 367n First World War 8, 60, 77, 111, 166, Gesammt-Monarchie 8, 55, 211 274–75+n, 313n, 341, 390, 392, 438, 462 Géza (King of Hungary) 19, 24n, 36 Fisher, Herbert Albert Laurens 439 Ghyczy, Ignácz 69, 244, 247, 249, 260n, Flaubert, Gustave 401 263n, 270n Fodor, József 428n-430n Gierke, Otto 84n Fónyad, Pál 426–27n, 430n Gladstone, William Ewart 218+n France, French 70, 114, 154, 185, 354, 399, Glanvill, Ranulf de 36n 440, 442–43 Glatz, Ferenc 17n, 191n, 307n, 435n Frank, Ignácz 132+n, 140n, 145 Goheen, Robert 14–15n, 134n Franknói, Vilmos 24n, 29n Golden Bull (Hungarian) 87+n, 115–21+n, Franz I, Emperor 6, 122, 124 161, 193 Franz Ferdinand 375, 380+n, 449n, 455 Gombár, Csaba 173n, 179n Franz Joseph (Habsburg Emperor- Gonda, László 412n, 421n, 424n King) 8–10, 13, 32, 53, 58–60, 65, 68, 79, Gorbachev, Mikhail 170n, 431 91, 93, 95, 122, 131, 141, 150, 163, 165n, 174, Görgey, Artúr 32, 210, 359, 367 209, 215, 218, 221n, 228, 237–38, 240, Gottas, Friedrich, 360n 248–50, 253, 258, 264, 275, 277, 279, Gratz, Gusztáv 356n, 367n369n, 390n 315+n, 318n, 330–32, 337, 340, 355, gravamina 67, 200, 233 359–62, 367, 370–72, 375–80, 385, 388, et postulata 232, 358 391, 396, 399, 447–48, 451 Great Britain, England 15, 86–87, 114–15, Franz Karl 250 354, 399, 440, 442–43, 446, 450–51 Frederick III 28n, 29 Great Defence Debate (of 1889) 79–80, 91, Freifeld, Alice 127n 150, 223–24, 372, 395 Freifeld, Josef 33n Gregory IX, Pope 117 Freud, Sigmund 397, 401–02 Gregory VII, Pope 24n Friedrich, István Greguss, Ágost 249n, 260n government of 297 Grillparzer, Franz Seraphicus 400 Fügedi, Erik 15+n, 24n, 27–29n, 31–33n, Grosschmid, Béni 49n, 136+n, 148+n, 108n 150+n, 158n, 164–65n, 284n, 286n, fundamentalia iura 123 289n, 409n Für, Lajos 312–13n Grósz, Károly 431+n Furnivall, John Sydenham 410+n Guti-Országh, Mihály 30 index 471

Györfffy, György 20n Hóman, Bálint 26n, 45n, 97, 137n, 143n, Gyurmán, Adolf 312n Honorius II, Pope 39 Honorius III, Pope 115 Habsburg, Otto von 105n, 180n Horthy, Admiral Miklós Habsburg (Regent of Hungary) 33, 101 Monarchy, Empire 5, 8–9, 41n, 45n, 65, Horvát, Boldizsár 286n, 311–13n 93, 98, 120–22, 130, 132, 150–51, 188n, Horváth, József 91n, 128n 196–97, 199n, 201, 211–17, 235–36, 252, Horváth, Mihály 204–05n 279, 390–93, 406–07, 410, 438, 446, Hugo, Gustav 146 448, 450+n, 453, 455, 459, 462–63 Hungary, Hungarian 1–2, 5, 8, 10–27 Hadik, Count János 318 passim, 32–34+n, 37–40+n, 55n. 57, Hajdu, Tibor 363n, 383–86 59–60, 74, 77, 79n, 95, 114–15, 120, 124, Hajnal, István 307n 128, 134, 144, 147, 153, 156–57+n, 190, 193, Hajnik, Imre 76–77, 81–85, 88n, 110, 195–96, 198–99, 201, 203, 208, 217, 227, 149, 224n 229, 233–34, 241, 254n, 258, 278, 307, 311, Hajnóczy, József 88+n, 125 317, 347, 358, 360, 365, 368–69, 390, Halmai, Gábor 175n, 178n 393–96, 398, 412, 455, 462, 448, 451, Hanák, Péter 3, 13–14, 238n, 240n, 313n, 457–58 315n, 318–19n, 331n, 333n, 341n, 363n, ‘crisis’ 227, 448, 451, 458 378n, 385n intelligentsia 190, 278, 390 Hantos, Elemér 87n, 161n Civil Code 4 Hartmann, Eduard von 401–02 language 56, 185, 196, 202, Hartung, Fritz 37–38n 383–84 Hartvic Bishop 20–22, 24, 35n of command 391, 449 legend of 22n, 28n natio hungarica, Hungarian nation 2, Heckenast, Gusztáv 136n 13, 15, 103, 143, 183, 187–88, 192, 198, Helfy, Ignác 300–01, 365 202, 274, 344–46, 351, 382, 403, 438, Hegel, Georg Wilhelm Friedrich 78, 82–83 457, 464 influence of 83n regnum Hungariae 6, 24+n, 26, 38, 40, Heiszler, Vilmos 367n 42–44+n, 49–50+n, 72, 76–77, 84–85, Heller, Erich 397, 402–03 99, 116, 203 Hellmann, Manfred 34–35n, 38n in ország sense 42+n, 43, 49–50+n, Heltai, Gáspár 136n 57+n, 130, 14943, 130 Hentzi von Arthurm, General Heinrich, in territorial sense 38 367+n in kingdom sense 42n, 49–51n, Herbart, Johann Friedrich 402 57+n, 100 Herder, Johann Gottfried 185+n Hunyadi, János 40 Hermann, Zsuzsanna 48n Huysmans, Joris-Karl 401 Hewitt, Virginia 15n Hviezdoslav, Pavol Országh 404 Hidas, Peter I. 324n Himmler, Heinrich 22n Illés, Georch 60n Hintze, Otto 43n, 229n Illés, József 147–48n Hitler, Adolf 197 Inaugural Diploma 31n, 35n, 41–43n, 57, Hobbes, Thomas 151, 281n 82, 107, 122n, 138, 141, 156–58+n, 218, 225, Hobsbawm, Eric 110–11+n 231, 250n, 276 Hodoşiu, Josif 351 Irányi, Dávid 365, 414n Holy Crown of Hungary (doctrine Istóczy, Gyözö 421n of) 15–112 passim, 148–52, 205, Italy 393, 449n 223–26+n, 371 iura haereditario 5, 234 visible, 18, 27, 32–34, 42+n, 52, 66, 90 iura maiestatica 71, 158+n invisible, 33, 52, 58, 66, 90 iura maiestatica communicata 5, 267 also see corona regni iura maiestatica reservata 5, 229, 314 Holy Roman Empire 25, 51, 218 iura reservata 72, 89, 267 Holy See 21, 38, 118, 431n ius privatum 5, 137, 472 index ius publicum 5, 137, Kemény, Baron Zsigmond 55n, 187, 190, ius resistendi 113–33 passim, 142, 192, 210–11n, 261n, 369n, Iványi-Grünwald, Béla 140n Kemény, István 171n Iványi, Emma 58n, 277n, 315n, 410n Kennedy, Paul 440n, 443n, 459n Ives, Margaret C. 184n Kerényi, Károly 110 Keresztesi, József 31+n János, Mihály 430n Kérészy, Zoltán 150+n Jansky, Ludwig 367+n, 371n Kerkápoly, Károly 64+n Jellačić, Count Josip 8 Kern, Fritz 113+n Jellinek, Georg 283n, 408n Kézai, Simon 46n, 130, Jeszenszky, Géza 87n, 102–03n 391n, Khuen-Héderváry, Count Károly 318n, 447n, 449n, 452n 331, 335, 373n, 375–77+n, 380 Jews, Jewish 2, 39, 306+n, 314n, 410n, Kilényi, Géza 171, 176n 387, 394, 396 kinship theory, system 86n, 161, 342 emancipation, representation of 412, Kiss, Géza 147n 417–18n Kiss, István 64n, 244, 287n, 309n immigrants 319 Klaniczay, Gábor 26n middle class 314, 394, 396 Klebelsberg, Count Kuno 97n religion 417–18+n, 421, 424–25+n Klimt, Gustav 399–402 Jobb, Sándor 297n Kmety, Károly 85, 86, 89n, 91n, 94–95, Jókai, Mór 259n 111, 299n, 364n Joseph II, Emperor 31, 41n, 60, 66, 107, Knatchbull-Hugessen, 124, 161n, 193–94, 199, 305, 307n, Cecil Maurice 91n 342n, 326 Kocsis, István 103+n, 105+n coronation oath of 122, 233 156n Koerber, Ernst von 376+n-77, as hatted king 161 government of 332 Germanisation policy of 183n, 185 Koerber-Tisza debate 376, 381–82 Juhász, Gyula 197n Kohl, Helmut 171n Justh, Zsigmond 341n, 398, 403–04 Kölcsey, Ferenc 140, 184n, 190, 190n, 201, Jutasi, György 172n, 178n 323, 323n Kolmer, Gustav 374–75n Kádár, János 174+n, 197, 431 Kolosvári, Sándor 139 government under 101, 104, 429n Komjáthy, Miklós 60n, 275n Kafka, Franz 396, 399 Konek, Sándor 411n, 418n Kálnoki-Bedö, Sándor 99n Kontler, László 66n, 115n, 120n Kantorowicz, Ernst H. 2n, 29n, 32–33+n, Kónyi, Manó 32n, 127n, 140n, 239–41n, 36n, 39n 243–44n, 247–48n, 250n, 259n, 263n, Karácsonyi, János 22n 269n, 270n, 293n, 311n, 324n, 335n, Karátson, Endre 191n 379n, 412n Kardos, József 98n, 104+n, 414, 420n, Köpeczi, Béla 122n 426n, 429n Korbuly, Imre 278n, 290n, 292n Kardos, László 414n, 420n, 426n, 429n Körösényi, András 169n, 181n Károlyi, Count Mihály 85, 318n, 357n Kosáry, Domokos 184n, 191+n, 204–05n, government of 151, 297, 319n 357n family of 322, 333 Kossuth, Ferenc 315n, 337, 377–78+n, 390 Károlyi, Count Sándor 328, 334n Kossuth, Lajos 7, 11–13, 56n, 59n, 62, 68, Kárpát, József 34–35n, 37n, 39n 74+n, 75+n, 87–88, 104+n, 126–27, 129, Katona, József 186 131, 140, 184, 191–96, 199, 201, 204–12+n, Katona, Tamás 28n, 30, 52n 234, 246n, 249n, 323, 327, 345, 359, Katus, László 411n 364–65, 383, 421, 449n, 453, 455+n Kautz, Gyula 339+n, Kovachich, Martinus Georgius 30n Kazinczy, Ferenc 186, 188 Kovács, Éva 19n Kecskemét 131–32 Kovács, Imre 306n Kelleher, Patrick J. 19–20n közálladalom 7, 8,12, 57n, 75n index 473 közös ügyek (common afffairs) 241–44, Louis I (King of Hungary) 118 247–51, 255, 261 Lovassy, László 234 Kraus, Karl 403 Lueger, Karl 395, 455n Kristó, Gyula 26n, 39n Lukacs, John 305n Kristófffy, József 95n, 332–33n, 379–80n, Lukács, József 426–30n, 456–57 Lukács, László 318, 357n, 380 Kubinyi, András 41n Kukorelli, István 168n, 171n, Macartney, Carlile Aylmer 21n, 24n, 51n, 178n, 180n 66n, 132n, 163n, 199n, 263n, 280n, 305n, Kulcsár, Kálmán 171n, 176n, 433+n 309n, 318n, 326n, 341n, 365n, 463n Kultsár, István 188 Madarász, József 64, 90n, 244 Kun, Béla 85–86 Magna Carta 87–88+n, 116, 161, 193 government under 151, 297 Magnates 308Ón, 313n 322, 326n, 330, Kun, József 340n 332, 340 Kupa, Mihály 181n Magyar(s) (nation, language) 43, 183+n, Kupka, František 400 187–91, 229, 259, 345, 395, 404, 444, Kurucz, Ignácz 64n, 72n 447–50n, 456–57 küzdök 334+n, 387, 389 Magyarization 6, 190, 202, 204, 387–88, 421, 449, 463 Laband, Paul 3, 9, 77, 80, 96, 98, 109n, Mailáth, György 248n 146, 214, 224+n, 368, Maitland, Frederic William 14, 69n Ladányi, Béla 148n Mályusz, Elemér 42n, 46n, 97n, 308–09n, Ladislas of Naples 118 312–13n, 322–23n Lakatos, Ernö 200n, 318–21, 365n Marczali, Henrik 31n, 37–38n, 51n, Lakits, György 70n, 125 96–97+n, 159n, 161n, 194n, 326n Landsowne, Henry Charles Keith Maria Theresa, Empress 37n, 51, 71, 156, Petty-Fitzmaurice, 5th Marquess 159n, 318, 411n of 440n coronation oath of 138, 157n Lányi, Bertalan 95+n, 338n, 378n, Márki, Sándor 312n 388n, 423n Márkus, Dezsö 145n, 213n, 219n, 239, 287n, laws 296n, 298–99n consuetudo 4, 135–36+n 138, 140–41, Marten, Miloš 403 144, 146–47, 160, 224, 233, 284+n, Martini, Baron Karl Anton 71, 125 288, 408–09+n Masaryk, Tomáš Garrigue 396, 403 customary 2, 134–35, 144, 220, 228, 260, Matthias (King of Hungary) 29–30, 118–19 285, 289, 293, 301, 406, 409–10, 414–24 May, Arthur 343+n passim McCagg, William 314n, 320n statute 4–6, 135, 160, 165n, 201, 214, 233, Mérei, Gyula 296n, 356n, 372–73n, 421n 283–84, 288, 293, 406–10 passim, 416, Metternich, Prince Klemens Wenzel 418n, 422 von 207 legal equality (jogengyenlöség) 2, 63, 67, Michael VII (Byzantine Emperor) 19, 28n 140, 285–88, 309–13, 317, 344n middle class 314, 394–96 Leipzig 399 Miletić, Svetozar 295, 351, 353n, 419n Leopold I, Emperor 121, 199n Mill, John Stuart 337n, 391n, 439 Leopold II, Emperor 122, 124 Mindszenty, József 427n Leopold III, Emperor 20 Miskolczy, Gyula 51n, 204n libera electio 5, 234 Miskolczy, Károly 53n, 73+n Lipovecz, Iván 168n, 171n, 176n mixed marriage 326n, 329–30, 404, 413, Lippay, Zoltán 327n, 328n, 341+n, 423 Locke, John 114, 154, 159n, 282 Mocioni, Alexandru 350, 353n London 447, 450 Mocsáry, Lajos 129, 316+n Lónyai, Menyhért 163–64, 269–70n, Moholy-Nagy, László 400 318n, 379n Molnár, Abbott 390 government of 129, 294, 327 Molnár, Erik 240n 474 index

Molnár, Kálmán 10, 98–99n, 151+n, 174n, 201–04, 207, 211, 215, 228–29, 235, 237, 284n, 286n, 409n 239–40, 249, 253–54, 257, 275, 279, monarchia 322, 325, 349, 358, 361 absoluta 5, 71 Otto I, Emperor 25 limitata 5, 71, 73n, 75, 125, 325 Otto III, Emperor 21–25+n mixta, vegyes 5, 71, 73, 125 Óvári, Kelemen 139 pura 5 Montecuccoli, Count Raimondo Pach, Zsigmond Pál 25n (general) 131 Paget, John 70+n, 386+n Montefĳiori, Cardinal Gentilis di 29 Pálfffy, Miklós 159n Montesquieu, Charles-Louis de Secondat, Paris 399 baron de La Brède et de 2, 66, 86, 124n, parliament, parliamentary government 2, 139, 142, 153–70, 178n, 193, 230, 262, 158, 164, 180, 245, 282, 291, 305, 280, 282 308–09+n, 313–14+n, 321–23+n, 329, paradox of 153, 167, 176, 182 332, 339, 388 Moreau, Gustave 401 Partium 51, 53, 203, Morocco and tension before WWI 444 Paskai, László 431+n, 434–35 Morris, William 401 Pászthory, Sándor 189n Mossóczy, Zakariás 137n Patterson, Arthur J. 70+n, 386+n Mussolini, Benito 197 Pekař, Josef 403 Péter, László 44n, 50+n, 55n, 59n, 66n, Nagy, Ernö 77–83, 89n, 92, 145–47+n, 77n, 80n, 87–88n, 93–94n, 116n, 224–25+n, 287n, 291n, 368, 418n, 124–28n, 129n, 139n, 141–43n, 145n, 421–22n 148–49n, 157n, 163n, 166n, 191n, Napoleon, Bonaparte 213, 215 193–94n, 200–01n, 203n, 208n, 223n, nationalism 183, 198, 219–20, 230, 274, 310, 284n, 292n, 302n, 316n, 322n, 328n, 355, 360, 382, 395, 400, 403, 463–64 330n, 341–42n, 357n, 361–62n, 368n, liberal 310, 323 370–74n, 381n, 388n, 391n, 410n, nationality (rights, question, 414–15n, 425n, 452n principle) 186, 317, 292, 343–46+n, 356, personal union 2, 58n, 205, 208, 239, 315n, 386, 403, 410, 462–64 332, 356, 365, 455, 456, 458 nationalities (non-Hungarian) 190, 202, Pest 394, 399, 420 343–48, 351, 353, 391–92, 395, 449n, Philip III (King of France) 450 455n. 458, 464 Plamenatz, John 155n Nelson, Janet 26n, 29n Poland, Poles 23, 25, 25n, 39n, 51, 114, 383, Németh, Miklós 169, 431 398, 403 government of 169, 171, 176n, 433, 435 Polner, Ödön 89n, 97+n, 383n Nestroy, Johann 400 Polónyi, Géza 93n Nicopolis, Battle of 118 Postulata 158, 200, 368, Nietzsche, Friedrich 396–97, Pozsgay, Imre 171–72+n 400–01, 403 praerogativa 84 Nordau, Max (Simon Maximilian praesumptio juris, presumption of the Südfeld) 401, 403 law 5, 7, 72, 78, 91, 160n, 257, 281–83+n, Noszlopy, Gáspár 131 407–08 Nyáry, Pál 344 Pragmatica Sanctio (of 1723) 2, 7, 13, 50n, 53–54, 78n, 127, 137n, 199, 208+n, 218, October Diploma of 1860; 218, 324, 327, 234–35, 239, 241–43, 252–53, 325n, 349, 346, 359 358, 361, 370, 372 Orbán, Sándor 425n, 427n Prague 34, 396, 399 Orbán, Viktor 87n Pressburg (Pozsony, Bratislava) 31, 50n, Government of 105, 111 65, 155–56, 162 ország 2, 7–8, 14, 30, 40n, 42–44+n, Procházka, Antonín 401, 403–04 48–52+n, 55–57, 65, 69, 73, 78, 86, 109, Prónay, Baron Dezsö 91n 121, 129, 137–39, 147, 157–58n, 174, 199, Prussia 359–60, 440, 450, 545 index 475

Przybyszewsky, Stanisław 397, Crown of see Holy Crown 401–02, 404 Salacz, Gábor 331n, 415n Puchta, Georg Friedrich 146–47 Sarkadi Nagy, Barna 428n, 432–33+n, 435n Pufendorf, Samuel 71 Sarlós, Márton 101+n, 104 Pütter, Johann 2, 217n satellite state (Soviet) 16, 170, 181n, 198 Pynsent, Robert B. 341n, 355n, 393, 398, Savigny, Friedrich Carl von 146–47 401, 404 Saxons 203, 305, 345 Scheppele, Kim Lane 16n Ráday, Pál 86n, 116n Schmerling, Anton von 263n Radetzky von Radetz, Count Johann Schmidt, Helmut 171n Josef Wenzel 208, 231 Schnitzler, Arthur 398–99, 401, 403 Radnóti, Sándor 33n, 108n, 110n Schoenerer, Georg von, 454 Rady, Martyn 38n, 44n, 48n, 50n, Schramm, Percy Ernst 19n, 21–23+n 115n, 136n Schvarcz, Gyula 64–65n, 79+n, 146–47+n, Rákóczi II, Francis 116n, 123 225n, 287n Ranger, Terence 110–11n Schwartner, Martin 70+n, 72+n, 125 Ránki, György 308n, 316n Schwarz, Gusztáv Szászy- 96, 146–47+n Rechtsstaat 10, 161, 165+n, 166n, 172, 176+n, Schwarzenberg, Prince Felix zu 181, 213, 215, 239, 241, 245, 250, 255, 264, government of 126 268, 270+n, 277, 293, 359–61, 380, 409, Second World War 3, 16, 25, 112, 164, 197, 432, 436–37 306, 357, 405, 425 Récsi, Emil 64+n, 75+n, 77n, 81, 110, Sennyei, Pál Baron 324, 327 146n, 278n Serbian, Serbs 305, 345, 350, 395 Redlich, Josef 238n, 245n Serédi, Jusztinián 35n reincorporatio (territorial, political) 56 Service, Robert 170n religion(s) 302, 406, 410–13, 435 Seton-Watson, Christopher 438+n received, recepta religio 302, Seton-Watson, George Hugh 416–23+n, 426 Nicholas 438+n, 464n recognised 302, 416, 419–20, 422, Seton-Watson, Robert William 88, 162+n, 425–26, 431 191n, 291n, 317n, 343, 354n, 387n, 438–65 tolerated 302, 416, 419 passim Revolution and War of Independence Settlement [of 1867] (Ausgleich), 3, 10, 13, (Hungarian 1848–49) 7–8, 32, 169, 184, 14, 8, 9, 57, 69, 77, 88, 90+n, 92, 127, 147, 195, 199, 202, 327, 356+n, 358, 393, 405 174, 195, 199, 200, 206, 213–15+n, 218–20, rex 23–24, 27, 34–37+n, 39–41+n 222–23, 226–27, 230, 238–39, 249, Réz, Mihály, 340n 250–53, 258–60, 264, 268–70, 273–74, Rodin, Auguste 400 279–80, 292–93, 316, 329, 331–32, 334, Rogofff, Irit 399–402 346, 355–57+n, 359–61, 364–68, 373, 377, Romanian(s) 345, 350 380–81, 388, 390, 395, 400, 447, 451, 453, Rosenmann, Stephan 70–71+n, 125 455–56 Rothenberg, Gunther Erich 228n, 255n kiegyenlítés, kiegyezés 237, 244, 259 Rousseau, Jean-Jacque 143 Schopenhauer, Arthur 396–97 royal Sigismund (King of Hungary) 40, 118, 131 oath 31, 39, 41+n, 46n, 66, 98, 107, 119n, Silvio, Enea 106 158n, 231, 276+n, 362 Simonyi, Ernö 365 veto 2 Sked, Alan 387–88n Russia(n) 154, 350, 440, 448, 452, 391 Slovak 345, 403 Soviet (Union) 70n, 174, 463 nation 438 Rychlik, Jan 438n Smetana, Augustin 400 social progress 1, 303, 323n, 328, 342, St Peter 21, 24n 393–94, 406, 410 St Stephen, (Waic, Vajk) King of Somló, Bódog 147 Hungary 17–28, 36, 38n, 103n, 111, Somogyi, Éva 361, 378n 115, 184, Somssich, Miklós 41n 476 index

Somssich, Pál 41n, 87+n, 194, 313n Szendi, József 434–35n sovereignty 2, 11, 21, 23, 60–69+n, 74–82 Szentiványi, Márton 138 passim, 98, 168, 219–20, 223, 225, 242, Szentkirályi, Móric 207n 273, 368–74+n, 381–82, 452–53 Szijártó, István 122–23n of the Hungarian state 78, 224, 374 Szilágyi, Dezsö 80n, 221–24, 365–66, 370, Spira, György 12, 310n 372–73, 376+n Standing Orders (of the House) 129, Szladits, Károly 144–45n 377, 390 Szlávy, József 318n state, status 2, 6, 12–13, 17, 49+n, 55+n, 61, Szlemenics, Pál 160n, 284n, 408n 65, 67, 73, 78, 82–84, 98, 121, 167, 179, 201, Szögyény-Marich, László 324n 214, 217, 282, 344–45, 351, 358, 381, Szontágh, Vilmos 11 406–07, 416, 424–25, 456–58 Sztáray family 333 status ministerium 14 Sztrokay, Antal 73n Steed, Henry Wickham 184n, 227+n, 379n, Szücs, Jenö 35n, 46n, 115n, 117n, 130n 386n, 448–50+n Stein, Lorenz von 83 Taafffe, Eduard Franz Joseph, 11th Viscount Steinacker, Herald 88, 162+n government of 395 Steiner, Zara S. 440n, 459+n tacitus consensus populi 4,137, 142, 146, Stephen V (King of Hungary) 20n, 117 233, 287 Stern, Joseph Peter 397, 403 Takács, Mária 322–23n Stifter, Adalbert 400 Telegdi, Miklós 137n, Stourzh, Gerald 10 Teleki, Count Géza 306n Strachey, John St Loe, 443, 444–45+n, 455 Temesvár (Timişoara) 51 Stratimirovic, Djordje 346 diet of 118 Swales, Peter J. 397, 399, 402 The Netherlands (Holland) 114, 442 Switzerland 351, 442 Thietmar, Bishop of Merseburg 22, 24+n Sylvester II, Pope 21–23 Third Reich 22–23+n Szabad, György 3, 11–13, 172n, 175–76+n, Thököly, Imre 121–22 238n, 309n, 313n, 324n Tikhvin Icon 19n Szabó, Béla 55n, 73–74+n, 104 Tillmann (Turi), Beta 339+n Szabó, Dezsö 45n Timon, Ákos 84–85+n, 89n, 91+n, Szabó, Ervin 298n, 312n 95–97+n, 100–01+n, 111, 150, 225+n Szabó, István 308n, 312–13n Tisza, Count István 54, 90–91+n, Szálasi, Ferenc 33 127–30, 320, 340n, 373+n, 375–80+n, Szapáry, Count Gyula 165n, 294, 318n, 385, 448 357n government of 223 315, 446 Szapolyai, Count János 45 group of 129, 385 Szarka, László 296n Tisza, Count Kálmán 164, 165n, 224, 278, Szász, Zoltán 164n, 299n, 319n, 328n, 294–96, 300–01+n, 313n, 316, 318n, Széchenyi family 333 334–36, 338n, 341, 357n, 364–72+n, Széchenyi, Count Béla 54 388–89 Széchenyi, Count Ferenc 188 parliamentary coup of 316n, 340, 391 Széchenyi, Count István 4, 59–60, 62+n, Tiszaeszlár 88, 124, 140, 143, 185, 190, 194, 201, 275n, blood libel case 423 308n, 322–23+n Toldy, István 68, 88+n, 287n, 312n Széchenyi, Count Pál 328 Tomcsányi, Móric 99n Szekels 203, 305 Tomka, Miklós 434n, 436n Székely, György 24n, 115n Tóth, Béla 32n, 184n Székesfehérvár 27–28n, 31, 115 Tóth, Zoltán 19n, 22–24+n, 28n Szekfü, Gyula 45n, 56n, 91n, 97n, Toulmin-Smith, Joshua 74–75+n, 88n 100+n, 121–22n, 131n, 143+n, 189n, Transylvania 42n,-43, 49n, 51+n, 57–59+n, 197n, 415n, 424n 105, 120, 141, 157, 159, 203, 209, 229, 243, Széll, Kálmán 318n, 357n, 374, 385, 285, 305, 311, 314, 333, 345, 347, 355, 387, government of 332, 334, 375 411, 418n, 450, 454 Szemere, Bertalan 32 Trefort, Ágoston 415n, 418+n, 420 index 477

Trianon, Treaty of 54, 58, 92, 103, 132, 196, Weininger, Otto 403 198, 392 Wekerle, Sándor 13, 163, 315+n, 318+n, 331, Tripartitum 42–43n, 44+n, 47, 60+n, 62n, 357n, 373–74+n, 379+n 66–67, 75, 78n, 82, 110, 119–20, 123, government of 91, 330, 340, 457 134–52 passim, 157, 308n, 410n Wellmann, Imre 307–09n, 326n Wenckheim, Baron Béla 293–94, 315, 318n, Ugron, Gábor 373n 356n Ukraine (Carpathian), Ukrainians 58, Wenzel, Gusztáv 311n 395, 397 Werböczy, István 30n, 39+n, 42–48+n, Umgestaltung 22n, 23, 25 51–52, 60+n, 62n, 65, 67n, 70n, 82, Unitarian (Church) 417, 418n, 427–28 85, 89, 97+n, 100, 110, 119, 121, 123, unitary state/nation 344–45, 351 130–32, 135–36, 140–43, 148–51, Urbanitsch, Peter 44n, 200n, 329n, 357n, 158n, 308n, 410n 361–62n, 374n, 410n, 452n Tripartitum of 134, 145, 157, 225 urbárium 190 Wertheimer, Eduard von 249n Ürményi, József 70n Wesselényi, Baron Miklós, de úzus 420, 424 Hadad 62+n, 67, 190, 201, 234 William II, Emperor (Kaiser) 442, 454 Váczy, Péter 26n, 38n, 98n, 319n Windisch-Grätz, Alfred Candidus Vance, Cyrus 102n Ferdinand, Prince of 32 Várkonyi, Ágnes R.116n Wittgenstein, Ludwig 136, 403 Vienna 394–99 passim, 448n, 451, 456 Wolf, Karl Hermann 454 Vigeland, Gustav 401 Wolfff, Johann Christian 71, 125 Vinogradofff, Paul 85n WWI see First World War Virozsil, Anton 70–72+n, 88n, 125, 146, WWII see Second World War 159+60n, 234, 283n, 408n, 421n Visegrád 25, 28n, Yildiz Palace 445 vis inertiae 10, 123, 128, 195, 290 Vladislas II, (King of Bohemia and Záborszky, László 187n Hungary) 30n, 45 Zagreb 394 Vladislav I, (King of Hungary) 30+n, Zápolya, János 30, 119 32, 40 Zétényi, Zsolt 103n Vlček, Ernst 398–400, 404 Zichy family 331–33 Vörös, Károly 306–09n, 313n, Zichy, Count János 92 322n, 342n Zichy, Count Jenö 328 Vörösmarty, Mihály 186 Zichy, Count Nándor 331 Vukovics, Sebö 64 Zolger, Iván 247n, 250n, 269n, 368n Zrínyi, Count Miklós 50n Walters, Alan 179n Zsarnay, Imre 63+n Wandruszka, Adam 329n, 362n, Zsedényi, (Pfannschmidt) Eduárd 258n 374n, 410n Zsitvay, Tibor 97n