To the Eighteenth Century

Kazimierz Baran Jagiellonian University, Cracow The Constitutional Uniąueness of the Polish-Lithuanian Commonwealth, from the Sixteenth to the Eighteenth Century The aim of this text is to provide a brief survey of a series of constitutional features that were characteristic of the Polish-Lithuanian Commonwealth (often referred to as Respublica or, in Polish, Rzeczpospolita), a unique organism „which once - to use the words of Norman Davies - roamed the plains of Eastern Europę”1. Although the Republic of the nobles survived until the end of the eighteenth century, the consolidation of its specific constitutional characteristics had taken place between the mid-fifteenth and the end of the sixteenth century. At that time Poland, already united with Lithuania first by personal and later by constitutional union, madę up one of the largest political organisms in Europę2. Within its boundaries there was much of what is present day Ukrainę, Byelorussia, Lithuania, Latvia etc. From the ethnic point of view the Commonwealths territory varied considerably. Apart from the Poles and Lithuanians it was possible to distinguish among its inhabitants the Eastern Slavs, at that time referred to as the Ruthenes (in fact the eastern part basi- cally spoke Ruthenian), Latvians, a considerable proportion of Jews, but also the representatives of smaller minorities like Armenians, Tatars or even Scots. Among the Ruthenians and Lithuanians the upper strata were easily polonized. Generally speak- ing, across the entire Commonwealth, the upper strata amounted to a considerable 1 Norman Davies, God’s Playground, A History of Poland, Oxford 1981, vol. I, 371. Norman Davies provides a series of interesting remarks on the uniąueness of the Republic constitutionalism. Interesting discussion of this problem may be also found in Wenceslas J. Wagner, ed., Pol ish Law throughout the Ages: 1000 Years of Legał Thought in Poland, Stanford, CA 1970; Jacek Jędruch, Constitutions, Elections and Legislatures of Poland, 1493-1993. A Guide to Their History, foreword by Norman Davies, New York 1998. See also Stanisław Płaza, Changes in the Political System of the Polish Commonwealth after Extinction of the Jagiellonian Dynasty, Acta Poloniae Historica 52 (1985), and also Kazimierz Baran, Procedurę in Polish-Lithuanian Parliaments from the Sixteenth to Eighteenth Centuries, Parliaments, Estates and Representation 22 (2002), 57-69. 2 By 1582 the territory of the Commonwealth amounted to about 815.000 sq km to reach almost 990.000 sq km in the first half of the 17'h century, cf. The Historical Atlas of Poland, War szawa - Wrocław 1981, 14, 16. 98 Kazimierz Baran particie of the total population. Indeed, the nobles madę up some 8 percent of the entire population rising to 10 percent in the eighteenth century. This was a remarkably high percentage by the European standards of the time3. 4 In addition, as we shall see, the nobility enjoyed considerable rights. Above all, the nobles were successfully protected by their Habeas Corpus against arbitrary ar- rest and detention by the State agencies, and, thanks to their political privileges, had a large share in the government of the country. The first striking feature of the Commonwealth was its democratic model of government. Unlike other European countries that from the end of the Middle Ages be- gan to evolve constitutionally towards absolutism, Poland-Lithuania drifted toward noble democracy. A series of privileges granted to the szlachta (the nobility) in the forteenth, but mostly in the fifteenth century laid foundations for a kind of civil soci- ety that the nobles could form vis-a-vis the monarch. Equipped with various political rights and well represented in the bicameral parliament referred to as the sejm, the szlachta could convert the King into an organ that was subject to law. Lex was supe rior to Rex and not vice versa. The fundamental principle of nobility s constitutionalism that remarkably facili- tated the subsequent tendency towards a republican form of goverment in the noble- men’s Commonwealth was that of the separation of powers. It was formulated as early as 1505, in the Statute later referred to as Nihil Novi\ and adopted by the sejm held in Radom. The statute prevented the King from exercising unlimited legislative power. He promised that he would not adopt anything new which might affect the liberties of his noble subjects without obtaining the consent of the councillors (senators) of the upper house and the szlachtas representatives sitting in the lower house5. As a result of the Nihil Novi formula the business of the King was to implement law but not to produce it. Of course, while implementing it, the King could adopt various executive decrees, edicts, or other measures of that kind. They could not however affect the generally applied liberties that his noble citizens enjoyed. Further constitutional developments in the Commonwealth added precision to the depiction of the figurę of the monarch as someone who is subjected to law. On 3 The Commonwealth had the largest European proportion of the nobles in Europę, several times as many as in other countries. Only Spain and Hungary could come close to it in that respect. On details see Davies, op. cit., vol. I, 215, see also 228. 4 In old Poland-Lithuania statutes were traditionally called Konstytucje (Constitutions). Hence the formal name of Nihil Novi is the Nihil Novi Constitution. 5 The Nihil Novi law of 1505 proclaimed: “Because common laws and public ordinances affect not one, but all people in common, therefore, at this Sejm of Radom, with all the judges, council lors, barons, and territorial deputies assembled together, we have reasonably moved and, further, adopted, the following equitable resolution: that, because such might become a detriment and injury to the State, an injury and misfortune of whatever sort to the private individual, and make for change in regard to public right and liberty, henceforth, and in futurę times in perpetuity, no new laws shall be madę by us or our successors, without the consent of the councilors and territorial deputies (Jędruch, op. cit., 418)”. The Constitutional Uniąueness of the Polish-Lithuanian Commonwealth... 99 the extinction of the Jagiellon dynasty the szlachta formulated in 1573 a kind of a Bill of Rights of the Respublica utriusque gentis (poi. Rzeczpospolita Obojga Narodów). The document borę the name of the Henrician Artides6 sińce the first king elected according to the new constitutional system was Henri de Valois of the French royal family. According to the Henrician Artides the throne became fully elective and the monarch was expressly forbidden to leave it to his son. The election was of the viritim type which meant that all individuals of noble rank had the right to participate in it. And in fact they did unless prevented from doing so by everyday reasons. Old paint- ings that depict the royal election show a mass rally of the nobility in an immense field packed with arriving individuals. It is also worthwhile to notę that everyone who was of noble status was eligible, although in practice most Polish-Lithuanian monarchs who were later elected re- cruited themselves from the European ruling families, like those of the House of Vasa from Sweden or Principalities of Saxony or Transylvania. Nevertheless, a handful of Polish magnates could also be found among them, like Michał Korybut Wiśniowiecki, Jan Sobieski, Stanisław Leszczyński or the last King of the Rzeczpospolita, Stanisław August Poniatowski. What deserves particular emphasis is the impeachment proce durę that the Henrician Artides provided for, thereby expressly making the monarch subject to law. From that time on, if the King violated the fundamental laws of the Commonwealth he released his subjects from the duty of obedience to himself7, the Henrician Artides Latin formula on that point being de non praestanda oboedientia. If this happened the mass of the nobles, while materializing their ius resistendi could, according to the deeply rooted modus procedendi, organize an armed league called a konfederacja (confederacy) and take matters into their own hands. A similar routine applied during interregna or if an enemy invaded the country when the regular state agencies ceased to operate. The confederacies formed to oppose an invader were ob- viously those organized to support the monarch and not to eliminate him. However, a confederacy hostile to the King, which blamed him for the infringement of the law, was referred to as a rokosz. That way or another, they were exponential of the self- -governmental tendencies characteristic of the political system prevalent in the old- -time Polish-Lithuanian state. When viewed from the perspective of the instruments that limited his preroga- tive, the monarch of Poland-Lithuania could be called a president for life rather than a monarch in the sense of the word between the Renaissance and the Enlightenment. If applying modern standards, one might say that his position was close to that of the present day president of the United States. Like the latter, the King of Rzeczpospolita was also exduded from the legislature, had to observe the fundamental liberties of the citizens of the country to avoid being impeached for their violation, but was left relatively free in pursuing foreign policy, provided that he had sufficient funds for the 6 Jakub Sawicki, ed., Wybór tekstów źródłowych z historii państwa i prawa polskiego, Warsza wa 1952, vol. I, part 1,151-157. 7 Ibidem, 155. 100 Kazimierz Baran purpose. Usually he did not have them and he had to ask parliament for the money. This provided the bicameral sejm with the chance to allocate the funds that it voted for specific purposes, thereby in fact controlling the executive agencies also in the sphere of foreign policy. The confederacy was not the only component of the Commonwealths Structure which provided it with a self-governmental character.

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