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Home , Emperor of Austria, Ernst von Pfuel, Jacques Claude Beugnot, Joseph von Radowitz, Kingdom of Westphalia, Margraviate of Baden

Germany 1818–1848

In the person of Louis XVIII the dynasty returnedtoFrance which had governed the country since the 16th century.Through the peace of of May1814the great powers confirmed the territorial extension the monarchyhad possessed at its fall in 1792.The Kinghimself emphasized the uninterrupted existenceof the monarchysince Saint-Louis, and Jacques-Claude Beugnot equated the impo- sition of the Charte constitutionnelle with the bestowal of privileges by the French Kingsofthe Middle Ages. As to the restoration in Germanythe contemporaries could scarcelyhavefound adequate parallels in history and onlyinasmall num- ber of cases was there aquestion of reinstatement of dynasties. There had been no revolution and if monarchies had disappeared, it wasdue to the influenceof and was carried through by wayofinternational treaties and Imperial legislation. The imposition of constitutions since 1814served to consolidatemo- narchies which in many cases had greatlyexpanded at the Napoleonic period. To the majorityofthe citizens of , for example, Grand Charles Frederick was anew monarch. The sameistrue for agreat manycitizens of and Württembergand their rulers. The inhabitants of the formerecclesiastical terri- tories on the Rhine were, in one blow,transformed into subjects of the protestant . In the German states restoration aimed less at areturn to the past than at the consolidation of divine right monarchyinthe present.Not- withstanding the undeniable attemptsatceremonial and ideological revival of historical memories the policy of restoration sought in the first place to meet the requirements of the future. After the fall of Napoleon, Europe was in need of political stability and of securitiesagainst acontinuation of war and revolu- tion. Apolicy of restoration in this sense waspursued not onlybyancient dynas- ties, but in new monarchies and undernew dynasties as well. Germanyresembled in that the ageofNapoleon was followed by an eraofmonarchical constitutionalism. Whereas during the earlymodern period France had developed into acentralized monarchywith the at its summit,the German Empire at the outbreak of the was frag- mented into agreat number of single territories.¹ On the European stagethe Ger- man ’sstanding wasbased exclusivelyonthe power he derivedfrom the lands of his crown. Within the Empire itself his influencewas limited. At the hands of Napoleon between 1801 and 1806 the territorial fragmentation of the Empire was reduced to approximatelyforty units, bothbythe secularization of

 Ingo Knecht, Der Reichsdeputationshauptschlußvom 25. Februar 1803.Rechtmäßigkeit, Rechts- wirksamkeit und verfassungsgeschichtliche Bedeutung (: Duncker &Humblot, 2007), 29.

DOI 10.1515/9783110524536-003, © 2020 Sellin Volker, published by De Gruyter. This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 4.0 License. 1818 – 1848 45 the ecclesiastical and by the mediatizationofmanysmall and medium-sized sec- ular estates. The ecclesiastical estates,the knighthoods and almostthe totality of the numerous Imperial cities, not mentioning agreat number of principalities and counties,wereannexed by their more powerful neighbours. This far-reach- ing transformation of Germanyhad originated from the cession in 1801 of the left bank of the Rhine to France through the peace treaty of Lunéville. Under article seven of this treaty the Empire was obliged to indemnify those hereditary on the right bank of the Rhine whose territories had been located in part or as a whole to the left of the Rhine. In preparation of the indemnification process the Imperial Diet of Regensburgformed a Reichsdeputation,acommittee composed of plenipotentiaries of several Imperial estates.The committee basedits deliber- ations on acomprehensive outline which France and had agreed upon beforehand. On 25 February 1803 the committee voted adraught resolution for the Diet.This draughtresolution (Reichsdeputationshauptschluß)was adopted by the Diet as afundamental lawofthe Empire (Reichsgrundgesetz)on24 March.² The territorial shifts provided for by the lawwent far beyond the neces- sities of indemnifying.The secular territorieslocated west of the Rhine the ces- sion of which to France entitled to indemnities, comprised 463square miles. The ecclesiastical territories east of the Rhine which weresubjecttosecularization with onlyone exception, comprised as many as 1.131 square miles.³ Even if onlyecclesiastical territories had been usedfor indemnification, the greater part of them could have been preserved. The mediatization of the 41 imperial cit- ies east of the Rhine, as prescribed by paragraph 27 of the Reichs- deputationshauptschluß, could well have been left undone. This shows that the principle of indemnification was onlyapretext for ageneral restructuring of Central Europe. Similarly, the arbitrary annexation of the Imperial ’ ter- ritories by theirneighbors in the following yearsand the mediatization of numer- ous principalities and counties by the peace treatyofPreßburgof1805 and the Actofthe Confederation of the Rhine (Rheinbundakte)of1806 exclusively sprang from the political interests of the French Empire and the expansionist tendencies of manyGermanprinces.Inthe course of the territorial reorganization of Germa- ny agreat manyofthem not onlywereaccorded considerable territorial accre- tions but also an upgrading of ranks. In Southern Germanythe Elector of Bavaria and the Duke of Württembergwerepromoted to the rank of Kingsand the Mar- graveofBaden was made aGrand Duke. In the course of these developments the

 Ibid., 50,109;the textin: Ernst Rudolf Huber,ed., Dokumente zurdeutschen Verfassungsge- schichte,vol. 1, 3rd ed. (: Kohlhammer,1978), 1–28.  Knecht, Reichsdeputationshauptschluß,190. 46 Germany 1818 – 1848

German princesbecame partisans of Napoleon because it was to him that they owed the unprecedented growth of power and status. Napoleon alone could guarantee their new dignities and the permanentpossession of their territorial acquisitions in the face of the great powers.The Empire itself succumbed in this process. On 6August 1806 Emperor Francis II deposed the Imperial crown and thereby formallydissolvedthe Empire, after he had alreadyin1804,contrary to Imperial law, arbitrarilyadopted the dignityofEmperor of .For two years he had simultaneouslypossessed twoImperial crowns – the ancientGer- man and the new Austrian one. By the dissolution of the Empire the former Im- perial estates wereturned into sovereign states. After the fall of Napoleon in April 1814the German Empire wasnot restored. The German princes clungtotheir onlyrecentlyacquired sovereignty and re- fused to renouncetheir territorial acquisitions.Inthe interest of their external security and of the general peace in Europe the German states werebound to- gether in the GermanConfederation (Deutscher Bund). Between the congress of and the outbreak of the revolution of 1848 in all German states with the exception of Austria and constitutions wereimposed. OnlyinWürt- tembergthe constitution of 1819 was the resultofaconvention between and diet.Nevertheless, here as well, the Kingclaimedunlimited sovereignty for the crown. Accordingto§4ofthe constitution of Württembergthe King “united in himself full public power” and “exercised it in accordance with the constitu- tion.”⁴ Prussia and Austria receivedconstitutions onlyinthe revolution of 1848 and 1849. The Austrian emperor Francis Joseph, however,repealed the constitu- tion he had imposed under the pressureofrevolution, as earlyas1851. As in France in 1814constitutions wereimposed in Germanywith aview to consolidating divine right monarchy. But the circumstances were different.The German states had never before possessed modernrepresentative constitutions and unlike the Bourbons of France no German dynasty had been deposed in a revolution. Nevertheless,inthe German states as well the imposition of consti- tutionswas acompromise between monarch and subject.Inthe course of the territorial restructuringofGermanyand the far-reaching reforms of the Napo- leonic period many ancient rights had been violated and almostall those insti- tutionshad disappeared upon which in the HolyRoman Empire security and lib- erty of the subjects had depended. The intermediate powers which to Montesquieu had been the safe-guards of liberty in amonarchyhad largely been abolished. By the recent reformsthe German princes had gained adegree

 Verfassungsurkunde für das Königreich Württembergvom 25.September 1819,in: Huber, Do- kumente,vol. 1, 188. Germany 1818 – 1848 47 of power without precedent,all the more so since with the Imperial Privy Council (Reichshofrat), the Imperial Chamber Court (Reichskammergericht), and the Em- peror himself all thoseinstitutions had disappeared to which in the Ancien Ré- gime citizensand estatescould appeal against theirsuperiors. The most vehe- ment criticism of the despotism of the member princes of the Confederation of the Rhine was pronounced by Karl vomStein who in 1812 had entered the service of Tsar Alexander.Hedemanded that after the banishment of Napo- leon in the German statesberestored astate of thingswhich granted to the sin- gle citizen “the safety of his person and his property.”⁵ The guarantors weretobe the territorial estates (Landstände). Stein demanded that in the course of the re- organization of Germanyestates should be introduced in every state.⁶ From the experience of 1789 Stein had learned the lesson that political suppression sooner or later ends up in revolution. ThereforeBernd Wunder identified his call for a state under the rule of law(Rechtsstaat)toprotect the subjects from arbitrary power,as“part of an antirevolutionary policy of restoration.”⁷ Stein wasnot alone in arguingalong these lines. The envoyofHesse-,Türckheim, reported on 21 September from Vienna, “the general tendency” at the congress was the conviction “that it was imperative to provide for the liberty of the Ger- man citizen and for security against arbitrary power and in this wayeffectively to prevent future revolutions.”⁸ Accordinglyinto the German FederalAct (Deut- sche Bundesakte)was insertedarticle 13 which obliged every member state to in- troduce aconstitution providingfor “territorial estates” (landständische Verfas- sungen).⁹ Estates had existed in most territories of the ancient Empire. But Stein did not propose the restoration of the historical bodies. Such an attempt would have met with anumber of difficulties.Instates which at the time of Napoleon had expandedthrough annexation of neighboringterritories the estates would have to be created anew with acompetencefor the enlargedstate as awhole. In territories thathad never possessed estates, they would have to be introduced for the first time. Unlikethe estates of the Old Regime all estates should from now on be givennot an imperative but afreemandate. It follows thatfor avari-

 Karl vomStein, “Verfassungsdenkschrift,” , end of August 1813,in: idem, Briefe und amtliche Schriften,vol. 4, new edition by Walther Hubatsch (Stuttgart: Kohlhammer,1963), 239.  Bernd Wunder, “Landstände und Rechtsstaat.Zur Entstehungund Verwirklichung des Art.13 DBA,” Zeitschrift fürHistorischeForschung 5(1978), 144– 150.  Ibid., 153.  Quoted from ibid., 161.  “DeutscheBundesakte,” 8June 1815,art.13, in: Huber, Dokumente,vol. 1, 88: “In every federal stateaterritorial constitution will takeplace.” 48 Germany 1818 – 1848 ety of reasons article 13 of the German FederalAct of 1815 did not aim at the re- turn to the institutions of the ancientEmpire. Not in this sense it was meant to promoterestoration, but by stabilizingthe German monarchies and in this way renderingthem secure from future revolutions.Ifbyrestoration something had to be confirmed, it was divine right monarchyregardless whether amonarch had governedhis present territory alreadybefore the Revolution or not. By inserting article 13 in the Federal Actand the Federal Actinthe Final Act of the congress of Vienna the policyofrestoration was made aconcern of Europe as awhole. The same objective is alreadyvisibleinthe second peace treaty of Paris of 1815 in which the great powers obliged Louis XVIII to stabilize “the hap- pilyrestored political order in France” by preservingroyal authority” and by “re- storingthe Charte constitutionnelle.”¹⁰ After his return from the island of Elba, Napoleon had replaced the charte by the Acte additionnel aux constitutions de l’Empire. The constitutional history of Germanybetween the fall of Napoleon and the revolution of 1848 maybestudied by wayofexample in Bavaria, Württemberg, and Baden. In these three South German states constitutions were introduced onlyafew years after the congress of Vienna. As far as the two German great powers are concerned special attention is due to Prussia, since the constitution which had been imposed in the revolution of 1848 wasafterwards revised, it is true, but not abrogated again as in Austria. Unlikemanyother estates of the former German Empire the Electorate of Ba- varia, the DuchyofWürttemberg, and the were preserved from annihilation in the ageofNapoleon. They formed part of the so-called Third Germany, thatistosay,ofGermanyother than the great powers Austria and Prussia. However,they weretransformed to adegree that to all intents and pur- poses they werefounded anew.The annexation of neighboring ecclesiastical and secular dominions, Imperial knighthoods, and Imperial cities bestowed upon them enormous accretions of territory.The reformsofthe Napoleonic period aimed essentiallyatintegrating the new provinces and subjects into the enlarged states.InJuly1806 the new Kingdoms of Württembergand Bavaria, the Grand DuchyofBaden, and the remainingsmall and medium-sized states the existence of which had been preserved by Napoleon, werebound together to form the Con- federation of the Rhine (Rheinbund). Simultaneouslythey resigned membership in the German Empire.

 Second PeaceofParis, 20 November 1815,in: Comted’Angeberg(LeonardJakob Borejko Chod’zko), ed., Le congrès de Vienne et les traités de 1815, vol. 2(Paris:Amyot,1863), 1596;Vol- kerSellin, Die geraubte Revolution. Der Sturz und die Restauration in Europa (Göttin- gen: Vandenhoeck &Ruprecht,2001), 285–286. Germany 1818 – 1848 49

Government in the memberstates of the Confederation of the Rhine was cen- tralized, modern,efficient,and practicallyunlimited. Doubtful wasits legitima- cy.Both the destruction of the German Empire and the expansion and restructur- ing of the single stateswerethe result of violent and unlawful usurpations. For the time beingNapoleon watched over the maintenance of the new political sys- tem. When his power began to decline the memberprinces of the Confederation became afraid that they would have to return at least part of theiracquisitions. In order to avoid this eventuality they entered into negotiations with the powers of the anti-Napoleonic coalition asking for aguarantee of theirpossessions. King Maximilian of Bavaria took the lead. On 8October 1813 he concluded the treaty of Ried with Austria. Other treaties between Austria and the medium-sized Ger- man states followed. As long as France had not been defeated the Austrian for- eign ministerClemens Metternich deemed it more important to win over Napo- leon’sGerman allies than to contest their acquisitions.This did not prevent the victims of the political reorganization of Germanyfrom fighting for the recovery of their former rights as before. As late as the congress of Vienna the princes who had once been directlysubjecttothe Empire and had since by forcebeen sub- jected to amore powerful neighbor,tried to recover at least acertain measure of independence.Conflicts arose also when territoriessubjecttomediatization wereclaimed by more than one neighboring . Longafter the congress of Vienna the KingofBavaria continued to claim the territories of the former Elec- torate Palatine located east of the Rhine includingHeidelbergand Mannheim.In 1802they had been accorded to the of Baden. The vast and to agreat extent arbitrary territorial reorganization of the period impaired, in the eyes of manycontemporaryobservers,the binding forceofexistingsovereign rights. In several territories of the Empire the governing personnel had changed more than once during the period. Atelling example is the prince-bishopric of Salz- burg. In 1803 it wassecularized and became aprincipality. In 1805 it was handed over to Austria.In1810 it became part of Bavaria and in 1816 it was again accord- ed to Austria. The bishopric of Würzburgwas likewise secularized in 1803 and handed over to the Elector of Bavaria. In 1806 it gainedindependence under the governmentofGrand Duke Ferdinand of Tuscanyofthe house of Habs- burg-Lorraine. In 1814itwas again handed over to Bavaria. The Breisgauand Freiburgwerein1803 accorded to the Duke of Modena.Two years laterthe ter- ritory was giventothe Grand Duke of Baden. There weremanymore cases of this kind. It is easy to figure out the consequences that these repeated changes of government must have had on the legitimacy of power.The largest coherent ter- ritory to be distributed anewafter the fall of Napoleon was the left bank of the Rhine. By the first peace of Paris of 30 May1814Louis XVIII had returned it to Germanyafter 20 years. Since the secular princes who had resided there before 50 Germany 1818 – 1848 the revolutionary wars, had been indemnified by the Reichsdeputationshaupt- schluß, and since the ecclesiastical stateshad been secularized in the whole of the Empire, there was nobodyleft who could of right have put in aclaim on these territories. The impression thatthe abandonment of such avast territory made on the contemporaries, is revealedbyaprivateletter of the former Jacobin and actual judge at the court of appeal at Kaiserslautern Andreas Georg Friedrich Rebmann of 4September 1815:

“The gods know if and when our souls in this country will be transferred to Baden, to Darmstadt, to Prussia, or to Austria. If onlyweremaintogether and arenot subjected to aminiatureprince,wemight tolerate everything, but unfortunatelyitisall tooprobable, that on the Donnersbergnot eagles,but crows and magpies maketheir nests,and that our souls will be used as tokens for balancingand fillingup.”¹¹

In order to restore and strengthen the bonds between sovereigns and subjects, adequate strategies of legitimation had to be implemented. In the course of French imperial expansion Napoleon himself had been confronted with the task of gainingassent among the new subjects and of winning political legitima- cy on foreign soil. He put his trust on constitution-making and on the Code civil. In Germany he employed this method for the first time in 1807after the peace of Tilsit in the Kingdom of which he had artificiallycomposed of Prus- sian and other territoriessuch as the Landgraviate of Hessen- and the PrincipalityofBraunschweig-Wolfenbüttel. Appointed King of Westphalia was his youngerbrother Jérôme. Napoleon’smethods of winning legitimacy are re- vealedinaletter of 15 November 1807bywhich he transmitted to Jérôme acon- stitution for the new Kingdom. He reminded his brother that there was no safety for his throne but “the trust and the love of the population.” Trust and love, how- ever,hewould onlyobtain by securing freedom and the rule of lawaspromised in the constitution. Once the former Prussian subjects in the Kingdom of West- phalia enjoyed the benefits of awise and liberal government,they would never want to return underthe arbitrary regime they had abandoned.¹² One

 Rebmann to Hermes, Kaiserslautern,4September 1815,in: Günther Volz (ed.), “Briefe An- dreas GeorgFriedrich Rebmanns an Johann Peter JobHermes ausden Jahren 1815 und 1816,” Mitteilungen des Historischen Vereins der Pfalz 57 (1959), 178; Volker Sellin, “’Heute ist die Rev- olution monarchisch’.Legitimität und Legitimierungspolitik im Zeitalterdes Wiener Kongress- es,” Quellen und Forschungen aus italienischen Archiven und Bibliotheken 76 (1996), 348;idem, Gewalt und Legitimität. Die europäische Monarchie im Zeitalter der Revolutionen (:Olden- bourg2011), 210 –211.  Napoléon BonapartetoJérôme Bonaparte,15November 1807, in: Napoléon Ier, Correspond- ance,vol. 16,Paris 1864,no. 13361, 166;asurvey of the history of the Germany 1818 – 1848 51 year later, under the pressureofNapoleon, Bavaria alsoreceivedaconstitution which, however,was never put into practice. Among the most important addressees of Napoleon’spolicy of legitimization werethe Standesherren. By the Actofthe Confederation of the Rhine of 1806 the formerimperial princesand who under the Ancien Régime had known no superior but the Emperor, weresubjected to the middle-sized states which had been enlargedin1803.They onlyreluctantlyresigned themselvestothe subjec- tion to other princes who were their equals in rank. In apetition directed to King Frederick Iinthe spring of 1816 the StandesherrenofWürttembergargued that they had never assented to the Actofthe Confederation of the Rhine. Therefore they had been incorporated into the Kingdom of Württembergonlyinfact, not of right.After the dissolution of the Confederation in 1813 they had ipso facto re- turned to their previous legal situation. Since, however,the German Empire had ceased to exist they had by now attained full sovereignty.¹³ The Kingof Württembergdid not agree. But like the other German princes he sought to com- pensate the Standesherrenfor the loss of their legal position under the ancient Empire by granting special privileges to them. These privileges wereinsertedin the constitutions thatwereimposed one after the other duringthe period follow- ing the congress of Vienna. The policyofsatisfying the Standesherrenshows that one of the purposes of the earlyGerman constitutions wascompensating for the loss of ancient political rights. The most important concession by the recently created sovereigns was the paragraph, as maybeexemplified by the constitution of Bavaria (title VI, §2,no. 4), that to “the heads of families of former Imperial princes and counts was granted” aseat and avote in the First Chamber.InBaden as well the heads of the families of the Standesherren weremade hereditary members of the Upper Chamber (§ 27,no. 2).InWürttembergthe First Chamber was preciselynamed “Chamber of the Standesherren” (§ 129). At least some of the Standesherren acknowledgedthese privileges as acompensation for the loss of formerpolitical rights. Thisisdemonstrated by Leovon Klenze’sconsti- tution column (Konstitutionssäule)thatFranz Erwein of Schönborn-Wie- sentheid who had been forced by the Actofthe Confederation of the Rhine to cede his sovereign rights to the King of Bavaria, had erected between 1821 and

is offeredinOwenConnelly, Napoleon’sSatellite Kingdoms (New York: The Free Press/London: Macmillan,1965), 176 – 222.  Joachim Gerner, Vorgeschichte und Entstehung der württembergischen Verfassung im Spiegel der Quellen (1815–1819) (Stuttgart: Kohlhammer,1989), 336. 52 Germany 1818 – 1848

1828near Gaibach in the lower Main for the glory of the Bavarian consti- tution.¹⁴ Accumulation and division of territories had occurred in Germanyalready under the Ancien Régime. Thelatest transfers of territory,however,differed in more than one respect from this tradition. Thedimension of the process was without precedent and added to the impression of arbitrary violence. At the same time it rendereddifficultthe integration of the subjects who had in great numbers been assigned to rulers foreign to them. In the Grand Duchyof Baden, every second citizen was anew citizen. Thereforegreat efforts werere- quired to help createamong the newcomers the conviction that they from now on belonged to the new state and to its head. Under the Ancien Régimea ruler who acquired aforeign territory had as arule left untouched its institutions as they had developed in history.Where there wereestates he was obliged to swear an oath that he would respect theirprivileges and preservethe constitu- tion and the customs of the country.New provinces weresimplyadded to the previous possessions of the acquiring monarch and thus permitted to preserve their identity.The princes of the Confederation of the Rhine, however,adopted the principles that had triumphed in the French Revolution, and subjected their new provinces to arational and centralizedadministration with no regard for theirhistorical traditions and borders.The territories which were received into the new states lost their historicalidentity.Atthe same time all local instan- ces that had possessed political functions of theirown right,weredeprivedof their powers.Whereas changes of rule or dynasty had in the past occurred in sec- ular territories only, it now happened that ecclesiastical elective monarchies and free cities were subjected to hereditary monarchies and in this waytoaform of rule they had not experiencedfor centuries.Taken togetherthese massive inter- ventions in traditionalsocial relations and rights of possessionjeopardized the legitimacy of sovereignty as such and thereby endangered the political stability of the new states. Asolution to the crisis was expectedfrom the imposition of constitutions on the French model. In the Kingdom of Westphalia Napoleon had demonstrated, at least on the programmatic level, how agroup of heterogeneous subjects of var- ious origin could by the introduction of aconstitution be transformed into apo- litical nation, and after the fall of Napoleon Louis XVIII had shown that amon- arch could adopt aconstitution without being obliged to let others partake of his

 Sellin, Gewalt,212–215; ibid. aphotograph of the constitution column and areproduction of the paintingbyPeter vonHeß of the layingofthe foundation stone of the column on 26 May 1821. Germany 1818 – 1848 53 political power.The congress of Vienna had imposed upon the German princes to introduce representative constitutions. Several of them complied with this ob- ligation, among others for the simple reason that they wanted to avoid interven- tion of the great powers in their interior relations. In the three South German states the elaboration of constitutions began immediatelyafter the breakdown of the French Empire, in obvious continuity to the period of the Confederation of the Rhine.InBavaria the elaboration of adraught constitution was entrusted to aspecial committee. Itscommission was the “revision of the constitution of 1808.”¹⁵ SimilarlyinBaden the plans of creating aconstitution went backto the elevation of the MargraviatestoGrand Duchyin1806.¹⁶ There is another rea- son whythe transition to constitutionalism must be understood as aconse- quence of confederation politics. The territorial expansion, the implementation of reformsand the never ending wars had in all memberstates caused astagger- ing increase of the public debt.¹⁷ In this situation the introduction of representa- tive assemblies was welcome for the simple reason that in this waypublicfi- nance was subjected to control and the public credit was based on the guarantee of the country.¹⁸ The first constitution wasproclaimed on 26 May1818 by Maximilian Joseph of Bavaria.¹⁹ Like Louis XVIII at the imposition of the charte the KingofBavaria emphasized twotimesinthe preamble of the document that he had bestowed the constitution of his freewill. In this wayheunderscored his claim to full pos- session of political power.The claim is repeated elsewhereinthe constitution. In the first paragraph of the second title it says thatthe Kingis“Head of State” and “assembles in him the totality of public power.” Obviously Maximilian soughtto counter the impression as if he imposed the constitution for the sole reason to

 EberhardWeis, “Die Begründung des modernen bayerischen Staates unterKönig Max I. (1799 – 1825),” in: Max Spindler and Alois Schmid, eds., Handbuch der bayerischen Geschichte, vol. 4: Das neue Bayern. Von1800 bis zurGegenwart,part 1: Staat und Politik (Munich:Beck, 2003), 113.  Hans-Peter Ullmann, “Baden 1800 –1830,” in: Hansmartin Schwarzmaier, ed., Handbuch der baden-württembergischen Geschichte,vol. 3: VomEnde des Alten Reiches bis zum Ende der Monar- chien (Stuttgart: Klett-Cotta, 1992),59–61.  Hans-Peter Ullmann, “Die öffentlichen Schulden in Bayern und Baden 1780 –1820,” Histori- sche Zeitschrift 242(1986), 34.  Hans-Peter Ullmann, Staatsschulden und Reformpolitik. Die Entstehung moderner öffentlicher Schulden in Bayern und Baden 170–1820,part 1(Göttingen: Vandenhoeck &Ruprecht,1986), 230.  Foracomparative analysis of the constitutions of Bavaria and Baden of 1818 on the back- ground of the Charte constitutionnelle see Markus J. Prutsch, Making Sense of Constitutional Mon- archism in Post-Napoleonic France and Germany (Houndmills: Palgrave Macmillan, 2013). 54 Germany 1818 – 1848 complywith article 13 of the Federal Act. Accordinglythe first article of the con- stitution states that the was asovereign monarchy. An essen- tial function of amonarchical constitution is the determination of the succes- sion. This was of primary importance in the Grand DuchyofBaden wherethe succession in the Hochbergline of the House of Zähringen was contested. The King of Bavaria claimed the territories of the former Electorate Palatine on the right bank of the Rhine,includingHeidelbergand Mannheim. He basedthese claims on the doubtful legitimacy of the Hochbergline. Thereforethe Baden con- stitution of 1818 expresslystatedits right of succession. In defenseofterritorial claims of the neighbors §3of the constitution confirmedthat the Grand Duchy was “indivisibleand inalienable in all its parts.” Similarregulations are to be found in the constitutions of Bavaria and Württemberg. The significanceof these norms must be seen against the background of the territorial revolutions of the preceding years. It was onlythrough the constitutions thatthe three mon- archs obtained adurable guarantee of their possessions. Allthe South German constitutions wereimposed on the citizens. In the preamble to the Bavarian con- stitution King Maximilian addresses the citizens as “his people,” and he alludes to “the happiness of the fatherland” which he intended to promote by the con- stitution.²⁰ Grand Duke Charles of Baden hoped by meansofthe constitution to render closer and closer “the ties of trust thatexisted between Us and Our peo- ple.”²¹ The constitutions wereindeed expected to increase the devotion of every single citizen towards the monarch. At the same time they weremeant to melt the great number of citizens of vastlydifferent origin into one nation with acom- mon political conscience. Insofar the talk of aBavarian or Baden nation went ahead of the actual development.The one nation was imagined as an effect of the constitution. Politicaland civil liberty weretobring about the political inte- gration of the respective country into auniversallyaccepted community under the monarchy. Contemporaries emphasized the integrationist effect of the constitutions. Anselm Feuerbach,First President of the court of appeal in formerlyPrussian Ansbach, in March 1819 wrote about the Bavarian constitution: “It is hard to be- lievewhat agreat royal pronouncement such as our constitution can achieve within ashort period of time. It was onlythrough this constitution that our King has acquired Ansbach and Bayreuth,Würzburg, Bamberg, and so forth. It has become unthinkable by now that somebodyshould stand up and suggest

 Verfassungsurkunde für das Königreich Bayern vom26. Mai 1818, in: Huber, Dokumente, vol. 1, 156.  Verfassungsurkunde für das Großherzogtum Baden vom22. August 1818, ibid., 172. Germany 1818 – 1848 55 that we adopt other colours than blue and white”!²² Since the proclamation of the constitution onlyten months had passed. If Feuerbach expresslyemphasizes the shortness of this spaceoftime, the conclusionispermitted that he was al- readyaware of the changingpolitical consciousness,and if he points out that from now on no subject of the KingofBavaria wantstobeanything but aBavar- ian, regardless under which sovereigns he had livedbefore, he underlines the integrating and stabilizingeffect of this changeofconsciousness.Inthe same sense the professor of public lawatFreiburguniversity,Carl vonRotteck, had al- readyin1818 givenhis opiniononthe constitution of Baden, writing: “We have receivedacorporate constitution, apolitical life as apeople […]. We weresub- jects of Baden-Baden, Baden-, the , the Palatinate, the Landgra- viate of Nellenburg, and the Principality of Fürstenberg; we were citizensofFrei- burg, of Konstanz, of Mannheim; apeople of Baden we werenot.But from now on we are apeople possessing acommon will, an acknowledgedcommon inter- est,inother words, acommon life and acommon law. Only now we enter into history and playour own part.”²³ There is no doubt: With these words Rotteck described the birth of anew nation. To amonarch who achievedthis, anew sourceoflegitimacy wasinevitablydisclosed.Inthis sense the constitutional policies of the German medium-sized states served the renewal and consolida- tion, in short, the restoration of monarchy, restoration not to be understood as anew creation after some kind of disappearance,because it had never been ab- rogated, but as aprocess of recovering strength and solidity. After the crushingdefeat at Jena and AuerstedtinOctober 1806 and the con- clusion of the humiliating peace treatyofTilsit in June 1807Prussia also initiated aperiod of social and political reformstobecrowned by aconstitution, as King Frederick William III had publiclyannounced several times. However,itwas onlyduringthe revolution of 1848 under entirelydifferent circumstances that the promise wasfulfilled. There werevarious reasons for the delay. An essential aim of the Prussian reforms had been the desire to strengthen the state from within and enable it to liberate itself from Napoleonic domination and recover the lost provinces. With the fall of Napoleon and the victory of the coalition over France the objective was accomplished. Another reason for the delayinim- posing aconstitution was the heterogeneity of Prussian social structure. Whereas the east was agrarianand dominated by the landedaristocracy,inBerlin, on the Rhine and in Westphalia there was alreadyadeveloped bourgeoisie, active in commerce and industry.Owing to the strongposition of the landed aristocracy

 Quoted from Sellin, Gewalt,228.  Quoted ibid., 228–229. 56 Germany 1818 – 1848 east of the ,inachamber elected by census the conservative forces would easilyhaveobtained the majority.Onthe otherhand,evenwithout amodern constitution, the state of Prussia was solid and powerful enough not to fear, like Baden and Württemberg, disintegration of its enlargedterritory.Asaconse- quence the country preserved the system of bureaucratic absolutism until the revolution of 1848. Whereas the King of Naples,the Pope in his capacity as head of the States of the Church, the Grand-DukeofTuscany, and the King of Sardinia after the out- break of the revolution in Palermo had imposed constitutions in due time and thereby formallypreserved full power,Frederick William IV of Prussia missed the chance to counter the revolutionary movement before it seriouslyendan- gered his position. When the revolution reached Berlin in March 1848, he had no choice but to call the meeting of an “assemblyfor the agreement of the Prus- sian constitution.” In aseries of proclamations the King simultaneouslyprom- ised to fulfill essential demands of the revolution such as the guarantee of the elementary rights of man, ministerial responsibility and the oath of the standing armyonthe constitution.²⁴ The Prussian National Assembly met on 22 May1848 in Berlin.The government presented adraft constitution which acommittee of the department of the Prime Minister had elaborated on the model of the Belgian constitution of 1831.²⁵ By agreement in practice wasunderstood aprocedureby which the Crown reserved to itself adoption or rejectionofthe constitution which the assemblyhad worked out.Inaddition it meant that the assemblywas expect- ed to avoid resolutions the Crown could not ratify.On17June 1848 the constitu- tional committee of the national assemblyinitiated the debate on the draft con- stitution of the government.On26Julythe committee laid its owndraft before the assembly.²⁶ In the following months the decisions of the assemblybecame more and more radical. Amotion of the Left to renounce the principle of agree- ment and to claim undivided constituent power for the national assemblyinits place, was rejected on 16 October,however.On12October after aprolongedde- bate the reference to divine right was removed from the royal title.²⁷ The deputy Borchardt reminded the assemblythat in the March revolution it had depended

 Proklamation des Königsüber die Einführungeiner konstitutionellen Verfassung, 22 March 1848, in: Huber (ed.), Dokumente,vol. 1, 449–450.  GerhardAnschütz,Die Verfassungs-Urkunde fürden Preußischen Staat vom 31.Januar 1850. Ein Kommentar fürWissenschaft und Praxis,vol. 1(Berlin: Häring, 1912), 36–37;the text of the draft ibid., 608–614; Sellin, Revolution,314– 320.  Anschütz, Verfassungs-Urkunde,42; text of the draft ibid., 614– 623.  Verhandlungen der constituirenden Versammlung für Preußen 1848, vol. 6(Leipzig: Thomas, 1848), session 73,12October 1848, 3920–3953;Sellin, Gewalt,85–86. Germany 1818 – 1848 57

“on the will of the people,” whether or not “it wanted further to be governedbya King.” Thereforethe Prussians no longer possessed a “King by divineright,” but “aKingbythe freewill of the sovereign nation.”²⁸ Hermann Schulze from De- litzsch asserted that “when acommercial enterprise had run bankrupt,” it was not customary to take its name “over to the new business.” Since absolutism had run completelybankrupt under the old firm “by divine right,” he warned from its continuation.²⁹ On 31 October the National Assemblyabolished the aris- tocracy.³⁰ In anticipation of the development Frederick William IV had alreadyduring the summer excogitated scenarios in which he would sendthe assemblypack- ing.Asearlyas21May on the eveofthe first session of the assemblyhehad writ- ten to Joseph vonRadowitz that one of threecases he was not prepared to toler- ate, was the proclamation of national sovereignty by the National Assembly.³¹ The question of how to react if the assemblyadopted inacceptable resolutions continued to trouble him. On 19 June he again wrotetoRadowitz that if the as- semblydenied him the right to dissolve it and arrogated to themselvesthe right to present him with “aconstitution of their own making” and “vote” it,hewould be forced to dissolve it.³² The King’sanxiety for the maintenanceofthe throne and his claim to monarchical sovereignty was steadily growing. On 15 September amemorandum of his began by the remark that this was “the last chance for sav- ing the throne, Prussia, Germany, and the concept of divine right in Europe.”³³ His surroundingspartook of his apprehensions. The general adjutant Leopold vonGerlach wrote on 21 October to count Friedrich Wilhelm vonBrandenburg who six days later was to be chargedwith the formation of anew government as successor of Ernst vonPfuel:

“The King, our sovereign,isinamorass, he feels that he is sinking, he calls for help, but nobodytears him out.Some people shout to him that he was makingsuch inappropriate movements that he would sink even deeper,others that his bodywas tooheavy,one couldn’tlift this burden, others affirm they had not placed him there(which is not entirely true as far as the ministers areconcerned), still others he should just wait,perhaps he

 Verhandlungen, vol. 6, 3930.  Ibid., 946.  Ibid., vol. 8, Berlin 1848, session 90,31October 1848, 5023.  Frederick William IV to Radowitz 21 May1848, in: Joseph vonRadowitz, Nachgelassene Briefe und Aufzeichnungen zurGeschichte der Jahre 1848–1853,ed. Walter Möring(Stuttgart and Berlin: Deutsche Verlagsanstalt,1922),47.  Frederick William IV to Radowitz, 19 June 1848, ibid., 56.  Promemoria of KingFrederick William IV concerning the constitution, 15 September 1848, in: Huber, Dokumente,vol. 1, 460. 58 Germany 1818 – 1848

could find solid ground beforethe water would close over his head. But nobodywants to act.”³⁴

The growingradicalization of the National Assemblyatlast drovethe King to ac- tion. Under the pretext of liberating it from the pressures from the streets of Ber- lin, by decree of 8November1848 the assemblywas transferred to and simultaneouslyadjourned till 27 November.The deputies reacted by voting a tax boycott. The government regarded this move as proof that with the assembly an agreement about the constitution was unattainable. Since public opinion also distanceditself more and more from the assemblythe governmentproceeded to acoup d’état.On5December the Kingdissolvedthe assemblyand imposed a constitution which left the royal prerogativeunimpaired. By the imposition the government preserved the monarchical principle and prevented the nationalas- semblyfrom usurping the constituent power.But the King brokehis promise of March to agree the constitution with the representativesofthe nation. The en- tourageofFrederick William wasdivided in its judgment on the wisdom of this action. Joseph vonRadowitz wrote to him from on 21 November:

“Independentlyofits material contents the imposed constitution will always be regarded as abreach of all legal foundationsand promises, placethe Crown in the air and perpetuate the revolution.”³⁵

Obviouslythe government knew perfectlywellthat the dissolution of the cham- ber and the imposition of the constitution were unconstitutional. It tried to bal- ance this deficiencybyrenderingthe imposed constitution as liberal as possible. In this wayitacceded to ademand the fulfillment of which had been judgedun- avoidable by many observers.Count Bülow,under-secretary of state in the for- eign department of Prussia, for example, had admonishedasearlyas15Novem- ber that adissolution of the National Assembly “would have to be combined with the imposition of aprovisional charte,and thatthis charte would have to be of the most liberalkind.”³⁶ In keepingwith this advice the government did not revert to its original draft of 20 May, but to the version which on 26 July had been adopted by the constitutional committee of the National Assembly. However,itmade anumber of by no means insignificant changes in the commit- tee draft.Among the changes were the replacement of the suspensive veto of the

 Leopold vonGerlach, Denkwürdigkeiten,ed. by his daughter,vol. 1(Berlin: Hertz, 1891), 224.  Joseph vonRadowitz to Frederick William IV,21November 1848, in: Radowitz, Briefe,65.  Bülow to Ludolf Camphausen, 15 November 1848, in: Erich Brandenburg, Untersuchun- genund Aktenstückezur Geschichte der Reichsgründung (Leipzig:Quelle &Meyer,1916), 277. Germany 1818 – 1848 59

King by the absolute veto and aprovision for emergency decrees. The opposition was to be assuaged by article 112 in connection with article 106.Article 106 per- mitted constitutional amendments by normal legislation. Article 112 statedthat the “present constitution” should “be subjectedtoarevision by wayofordinary legislation immediatelyafter the first meeting of the chambers.”³⁷ By this article the constitution was from the outset declaredprovisional. From apolitical point of view the imposition of the constitution must indeedbeunderstood as adevice to overcome the stalemate in the relationship between Crown and assembly. It was an expedient by which the government of count Brandenburgsought for the time being to relievethe monarchyfrom the pressingdangers into which it had fallen. The King would have preferred to do without the imposition of the constitution and not to combine it with the dissolution of the National Assembly. On 23 Novemberhewrote to Otto vonManteuffel:

“The proclamation of the constitution immediatelyafter the unavoidable dissolution looks, Iwould liketopronounceitwith avoice of thunder,likeastudied piece(of comedy) and smells,aswide and as broad as the StateofPrussia is, of mauvaise foi.”³⁸

The solution that was chosen, clarifies whycount Bülow had spokenofthe im- position of a “provisional” charte. Obviouslythe illegality of the imposition should be smoothed over after the event by the application of article 112 that per- mitted revision. In other words: Unlikethe Charte constitutionnelle in France the Prussian constitution was imposed pending the consent of the Chambers. The re- vision wasprescribed because Frederick William IV sawhimself boundbythe promise to concert the constitution with the elected representatives of the nation, apromise Louis XVIII had never given. Articles106 and 112 should render the imposition acceptable to the public by providingspace for the inclusion of demands that had not been taken into ac- count.AsGünther Grünthalrightlyobserves, if the reservation of revision could “not legalize the King’sactions in public law, it could – so it was calculat- ed – justify it from apolitical point of view.”³⁹ On the other hand, the Crown had also reserved for itself aloophole in case of unwelcome developments in the fu-

 Verfassungs-Urkunde für den preußischen Staat vom5.Dezember1848, in: Anschütz, Ver- fassungs-Urkunde,632.  Frederick William IV to Ottovon Manteuffel, 23 November 1848, in: Ottovon Manteuffel, Unter Friedrich Wilhelm IV.Denkwürdigkeiten,ed. Heinrich vonPoschinger, vol. 1: 1848–1851 (Berlin: Mittler,1901), 47.  Günther Grünthal, Parlamentarismus in Preußen 1848/49–1857/58. Preußischer Konstitutio- nalismus – Parlament und Regierung in der Reaktionsära (Düsseldorf: Droste, 1982), 57. 60 Germany 1818 – 1848 ture. Accordingtoarticle 105,2,the government could, “if the Chambers were not assembled,”“in cases of urgency,under the responsibility of the entire de- partmentofthe prime minister, issue decrees with forceoflaw” which,however, had to be presented to the Chambers “for approval immediatelyattheirnext meeting.”⁴⁰ It is obvious that this article accorded to the executive an almostun- limited power to legislate by decree. Urgency was not defined. The prerequisite of the application of the article, namelythat the Chambers werenot assembled, could be brought about by the King himself since article 49 conferred upon him the right to dissolve the Chambers.⁴¹ After the Chambers had in March 1849 confirmed the legality of the imposi- tion they initiated acomprehensive revision of the constitution.⁴² Every article was separately examined and put to the vote. In this waythe principle of nego- tiating the constitution was after all applied, even if subject to negotiation were at this stageonlyeventual changes and amendments. Wherever there was no agreementbetween Crown and Chambers the imposed version was maintained. Aconflict over the revision arose in fact between the King and the democratically elected Second Chamber.Thereupon the King dissolvedthe Chamber on 27 April 1849 and on 30 Mayheimposed anew electoral lawhaving recourse to the emer- gency article 105.The government introduced auniversalbut unequaland not secret electoral lawofmen by which the electorate was divided into three classes, with the consequencethat at the next elections the radical democrats would remaininahopeless minorityposition (Dreiklassenwahlrecht). By the new electorallaw the totality of electors was divided top-down into threeclasses in such away that the amount of direct taxes paid was equal in every class. The three classes sentthe samenumber of representativestothe Second Chamber.As compared to the modestlytaxed citizens in the third class the highlytaxed mem- bers of the first classthus disposed of manytimes the political weight.The Prus- sian Dreiklassenwahlrecht remained in forceuntil the fall of the monarchyinNo- vember 1918. The dissolution and reelection of the Second Chamber had interrupted the revision of the imposed constitution. The First Chamber had been adjourned. Onlyon7August 1849 the Chambers wereopened again. One of their first deci- sions was the approval of the royal ordinanceof30May by which the new elec- toral lawhad been introduced. Afterwards the examination of the revised consti- tution was continued and concluded in December 1849.Since both Chambers

 Anschütz, Verfassungs-Urkunde,632.  Grünthal, Parlamentarismus,54.  Anschütz, Verfassungs-Urkunde,54. Germany 1818 – 1848 61 had incessantlybeenincontact with each other,they could present to the King a text in common. But the Kinghesitated to sanction it and to take the oath pre- scribed by article 52. Instead he ordered the government to present to the Cham- bers on 7January 1850 15 propositions for revision of the constitution. The Cham- bers gave their assent to the greater part of the proposals.Frederick William IV sanctionedthe constitution on 31 January and on 6February he took the oath on it.⁴³ The policy of Frederick William IV towards the Prussian National Assembly calls to mind the policy of Louis XVIII towards the Napoleonic Senate.Both mon- archs had on behalf of the nation been presented with draft constitutions that infringed seriouslyupon their sovereign rights. Frederick William’ssituation was even more delicate than Louis XVIII’ssince the Prussian National Assembly had been called by the King himself and democraticallyelected by the nation. The French Senate, by contrast,had not been elected, and nobodyhad charged them to elaborate aconstitution. It is true thatthe Senatorial constitution should in duecourse be subjected to areferendum. Thus farademocratic legitimation was envisaged. The Senate had referred to the same legitimacy when he formally deposed Emperor Napoleon who had himself basedhis rule on the national will. The twoimpositions of 1814and 1848 resembledeach other also in that they werecarried through by coupsd’état and aimed at replacingthe democratic by the monarchical principle. Even the contemporaries had pointed to the sim- ilaritiesofthe impositions of 1814inFrance and in Prussia. Karl August Varnha- genvon Ensecommented the Prussian imposition of 5December 1848 in his diary by writing: “The thing reminds me of the Charte of Louis the Eighteenth, but will scarcelyplaythatlong.”⁴⁴ The prognosis was wrong.The Charte re- mainedinforce, if one includes its revision in the , for aduration of altogether 34 years. The Prussian constitution, however,held its own, after the revision of 1850,tothe end of the monarchyin1918. The resolvesofthe Prussian National AssemblyofOctober 1848 by which the aristocracy and divine right weretobeabolished, provoked acrisis of the monarchy. It was short of being transformed from amonarchybydivine right into ademocraticallylegitimized monarchyonthe model of the French constitu- tion of 1791.Since the public continued to expect that the Crown would fulfill its promises of the spring,areturn to bureaucratic absolutism of the pre-March era was out of the question. If the government did not want to cede to the demands of the National Assemblyithad no choice but to recover the initiative.Bythe

 Ibid., 58–60.  Karl August Varnhagenvon Ense, Tagebücher,vol. 5(Leipzig:Brockhaus, 1862),327. 62 Germany 1818 – 1848 coup d’état of 5December Frederick William IV restored the monarchical princi- ple and consolidated monarchical legitimacy by imposingaconstitution which highlycorresponded to the aspirations of the country.Thus the Prussian consti- tution of 1850 belongstothe great number of constitutions of the 19th century in monarchies that werenot elaborated by democraticallyelected constituent as- semblies but imposed from above. The imposition consolidated the monarchy because it fulfilled essential demands of the revolution without infringing upon monarchical sovereignty.ThereforeinPrussia as well, the transition to con- stitutionalism ended up in along-term restoration of amonarchyshattered by revolution. It was onlythe crisis of the First World Wartowhich it finallysuc- cumbed.