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, ), a unique organism „which once - to use the words of Norman Davies - roamed the plains of Eastern Europę”1. Although the 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 , 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 rep- resentatives 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 , Oxford 1981, vol. I, 371. Norman Davies provides a series of interesting remarks on the uniąueness of the Republic constitutional- ism. 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, , 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 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 remark- ably 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 gov- ernment. 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 (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 referred to as the , 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 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 . 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 in- jury 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 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. The dietine (poi. sejmik) or the local assembly of the nobility in each of approximately seventy provinces of the Commonwealth was a highly self-governmental instrument. The interregna, which at the end of the sixteenth century added up to several years, facilitated the growing independence of the sejmik. In the absence of the monarch, the local gentry indeed took business into their own hands, while the respective ziemie (terrae) or Palati- nates (poi. województwa - these being the typical names of the provinces) combined to form a confederacy designed to elect a new King. One way or another, the high standing assumed by the sejmik on such occasions strengthened the sense of sovereignty among the noble citizens of the respective provinces. The sejmik did indeed see the implementation of direct democracy sińce, as in the case of the free election of the monarch, everyone of noble rank could participate in its sessions un- less prevented from doing so by everyday reasons such as distance, disease, farming business or merely lack of interest in public affairs. The numerical strength of the nobility meant that tens of thousands could tum up in some provinces, but in practice several hundred would form a typical sejmik meet- ing when urgent matters were to be debated (the largest recorded session amounting to 1 200 individuals)8. In slack periods less than one hundred would attend. The ses­ sions were far from chaotic. The debates followed a routine honed over generations. This induded various systems of voting and vote counting, including the so-called kreskowanie, as well as the official registration of the sejmik resolutions in the gród Court or gród chancery. The self-governmental climate, prevalent in the Commonwealth, accounted for the lack of intricate bureaucratic machinery characteristic of the states that developed towards absolute monarchies. This lack of a substantial central bureaucracy proved providential for the prosperity of the minorities which, as a result, enjoyed consider- able freedom and were allowed to abide by their customs in their internal affairs. The Jewish minority was especially autonomous in this regard. Cecil Roth wrote:

Nothing was morę characteristic of Polish Jewish life than the remarkable degree of self- government which it evolved. In 1551, Sigismund Augustus, the last king of the home of Jagiełło, issued an edict permitting the Jews of his realm to elect their Chief Rabbi and

8 Stanisław Płaza, Sejmiki i zajazdy szlacheckie województwa sieradzkiego. Ustrój i funkcjono­ wanie (1572-1632), vol. I, Warszawa - Kraków 1987. Many of the following remarks on the sejmik are based on Płazas monograph as well as on the exhaustive study of the sejmiks by Wojciech Kriegseisen, Sejmiki Rzeczypospolitej szlacheckiej w XVIIIXVIII wieku Warszawa, 1991; cf. also Baran, op. cit., 57-66. The large number of participants in sejmiki caused many sessions to be held outdoors, sometimes in a cemetery or in an open field. The Constitutional Uniqueness of the Polish-Lithuanian Commonwealth... 101

lawful judges, answerable only to the king, with authority to exercise jurisdiction in all maters concerning Jewish law. This measure has rightly been described as the Magna Charta of Jewish self-government in Poland, for it set the seal of the royal approval upon the natural urge of the Jew of past ages to rule himself according to this traditional juris- prudence9.

Thus the self-governmental tradition of the Commonwealth allowed the Jews to arrive at a degree of autonomy unattainable elsewhere. They went as far as forming their own Jewish Parliament or the Council referred to as the Vaad. The Vaad ob- viously could not adopt laws that would be generally binding on everybody in the Rzeczpospolita but it could successfully deal with internal Jewish matters such as rab- binical education, charity or the distribution of the Jewish poll tax10 11. In his discussion of the Jewish Council, Cecil Roth emphasized:

The Council, at its prime, was virtually the Parliament of Polish Jewry, with authority nearly as absolute as that of any legislature. Plenary meetings were held each year, not only at the Spring Fair at Lublin, but also at that in the early summer at Jaroslav, in Galicia. During the sessions of the Polish Diet at Warsaw, the Council would send an agent, or Shtadlan, generally a persona grata at court, to watch over Jewish interests. Internally, its authority was absolute. Besides apportioning taxation it would assist in enforcing royal edicts; it passed sumptuary laws, to enforce moderation in dress and social life; did all that lay in its power to prevent undue competition; it supervised education; it acted as a court of appeal, and decided on matters which were in dispute between one congrega- tion and another. All the Council s regulations, however trivial, could be enforced, if the necessity arose, by the power of excommunication, which was backed up by the authority of the State. Nowhere, sińce the decay of the Jewish center in Palestine, had a morę com- plete approach to autonomy existed“.

Thanks to having this kind of their own intricate self-governmental bodies the Jewish people could form a successful lobby preventing any anti-Jewish legislation at the local as well as central levels12. It has already been emphasized that one of the distinctive features of the Respub- lica, the one that accounted for the democratic mechanism of its Structure, was the extraordinary legał status of its noble citizens. The latter were successfully protected

9 Cecil Roth, A History of the Jews, Schocken Books, New York 1970, 269. 10 As regards finances only the total amount of the tax imposed upon the Jews was negotiated each year between the Jewish representatives and Polish Minister of Finance, while its distribu­ tion was left in the hands of Jewish authorities, cf. Andrzej Bryk, Jewish Autonomy in the Polish- -Lithuanian Commonwealth from the Sixteenth to Eighteenth Centuries, Archiwum Iuridicum Cracoviense 21 (1988), 51-69. 11 Roth, op. cit., 270-271. Morę details on the Jewish diaspora in the Respublica may be found in Jews in Poland by Chimen Abramsky, Maciej Jachimczyk, Anthony Polonsky, Blackwell ed., Oxford 1986, as well as in Bryk, op. cit., 51-69; see also Jędruch, op. cit., 141-144. 12 For morę details see Bryk, op. cit., 64-66. 102 Kazimierz Baran against the arbitrary reach of State power. This degree of independence enjoyed by the nobles was due to a series of privileges that the nobles had obtained commencing with the Koszyce Pact of 1374. The most prominent among these privileges were those which, like that of Czerwieńsk of 1422 or that of Jedlnia and Cracow of 1430-1433, conferred on the upper stratum of the Rzeczpospolita the rights which might easily be identified with modern human rights. Thus Czerwieńsk privilege protected the prop- erty of the nobles from being confiscated without due process of law, while Jedlnia and Cracow expanded the due-process-of law reąuirement to the cases of arresting or detaining a nobleman13. Another noteworthy liberty of the nobles was their freedom of conscience. That was granted to them through the resolution of Warsaw Confederacy of 1573 and subsequently incorporated into the Henrician Articles which, as has already been said, functioned as the Commonwealths Bill of Rights. The text of the Confederation proclaimed:

As in our Commonwealth there exists great dissidence in the cause of Christian religion, to prevent the growth of any harmful sedition, such as can be clearly seen in other realms, we promise in our names, and in the name of our successors in perpetuity and bound by oath on faith, honour and conscience, that we who differ in religion will keep peace among ourselves and for reason of different faith and religious practice will not shed blood, nor penalize by confiscation of wealth or good name, prison or exile, and we will not help any authority or office in such undertakings: instead, should anyone try to shed blood claiming an exalted cause, we shall all be responsible for preventing it, even if it were attempted under the pretext of a decree, or a court decision14.

Nobless of all Christian denominations, as were put on the same footing the rest of their noble brethren. However, further developments madę the entire problem of religious toleration in the Republic morę complex. The Union of Brest of 1596 en- couraged a certain proportion of Orthodox Christians to form the “Uniate” (Greek Catholic) Church which acknowledged the supremacy of the Apostolic See in Romę. This led to a few decades of discrimination against those who remained loyal to the traditional Orthodox Church. Yet in the 1630s King Władysław IV Vasa yielded to the reality that he encountered on succeeding to the throne of the Commonwealth. Finding a remarkable number of those who practised the traditional beliefs in the eastern part of his country, he helped persuade the sejm to legalize afresh the Or- thodox Church within the boundaries of Poland-Lithuania. Religious toleration was thus restored. However, throughout the seventeenth and early eighteenth century

13 From that time on, a nobleman could be immediately arrested only in drastic cases such as highway robbery, kidnapping women, arson etc., and, when arrested, he had to be promptly brought before the Court and tried. His preliminary detention could not therefore turn into an im- prisonment ad infinitum. It was designed only to secure his appearance in the Court; cf. Jędruch, op. cit., 417-418; Baran, op. cit., 59. 14 Jędruch, op. cit., 134. The Constitutional Uniąueness of the Polish-Lithuanian Commonwealth... 103 it was not easy to maintain the high standard of this toleration, particularly, when during the wars against Protestant Sweden in the 1650s Swedish armies devastated the country and profaned Catholic churches. Despite this bitter experience the for­ mal discrimination of non-Catholics in the sense of preventing them from sitting in parliament was only a short-lived episode between the 1730s and 1760s. One way or another, the formal declaration of religious toleration in 1573 prevented religious civil wars from breaking out in the Commonwealth. True, the religious toleration was limited to Christian denominations. Yet in fact its pronouncement also had an impact on the status of non-Christian creeds. The Jews, bound to Judaism, and the Tatars professing Islam, could practise they creeds unharassed15. In the context of their privileges, the large share of the nobles in the government of their country should once again be emphasized. The direct democracy realized through the sejmiki, the fuli legislative power vested in the bicameral sejm and the viritim election of the monarch, were the foremost political rights of the nobility. These rights consolidated the popular conviction among the nobles that their will could not be ignored whenever major decisions on legislative measures or on the foreign policy of the country were being taken. The republican upper class was also characterized by the egalitarian spirit perme- ating their ranks. According to proverb coined at that time: “Szlachcic na zagrodzie równy wojewodzie” which could be translated as: even the poorest noble (having only a few acres of land) was equal to a palatine (a senator of the first rank). The say- ing expressed the idea that irrespective of your wealth, as long as you were a noble, and particularly, if you were a possessionatus (and you could be one even if you leased land instead of owning it), you enjoyed all the privileges of your class. One morę question that requires comment in the context of the unique status of Polish-Lithuanian nobles is a distinct feature of the culture with which this class identified themselves. The culture in question was the culture of Latinitas. The devel- opment of the latter had something to do with the sixteenth and seventeenth-centu- ry religious experience of the Commonwealth. The sixteenth century was the time when many nobles, particularly those prominent in the sejm, accepted Calvinism. It was the growing number of non-Catholics throughout the sixteenth century that accounted for the aforementioned tendency to promote religious toleration in order to avoid religious wars. Yet, from the end of the sixteenth century, and then through­ out the seventeenth century, many of the Commonwealths Protestants began to drop their reformed faith, thereby returning to the creed of their ancestors. The reasons for this were many but the tendency seemed to a large extent to be due to the particular faithfulness with which the principles of the sixteenth-century Council of Trent were adopted and implemented in Poland-Lithuania. These principles were designed to do away with all the negative aspects of the life of Catholic Church which had provoked

15 Morę details on the religious questions of the Commonwealth may be found in Davies, op. cit., see his chapter on Antemurale, vol. I, 197. 104 Kazimierz Baran the Reformation. And indeed, an improvement in the morał and intellectual level of Catholic clergy was soon evident. This madę them capable of effective pastorał care. The ex-Protestants used to state sometimes in their memoirs that they were surprised at the decisions of their fathers who at one time departed from Catholicism. An ad- ditional argument that promoted the climate of re-conversion could paradoxically be created by the extent of religious toleration itself. Since toleration prevailed in the Commonwealth as early as the 1560s (at that time the sejm adopted the statute which forbade the starostowie to execute the decisions of ecclesiastical Courts), the Republic began to attract the faithful of various sects into which Protestantism was soon split. The sects also induded the Antitrinitarians who promptly found themselves in sharp conflict with the Calvinists. The disgusting ąuarrels and brawls on religious points that followed the disputes between the Protestants of various shades also reached the sejm and plagued some of its sessions. Such developments worked as a discouraging factor vis-a-vis those who still contemplated whether to choose a reformed religion or stay with the old creed. Observing the scene from a distance, the Catholic clergy could condude: “bellum hereticorum pax est Ecdesiae”. In the meantime the Jesuits, invited into the Commonwealth in the 1560s, began to develop a net of Jesuit colleges which - by the standards of the time - offered quite attractive, Latin-oriented, humanistic education. The nobles who attended these col­ leges learned to speak fluent Latin, studied Ovid, Virgil and Horace, and were able to quote whole fragments of their works by heart. This happened at the time when the teaching of this ancient language began to dedine among Protestants sińce this was the language of the Apostolic See and lay humanism16. Thus the mass of nobles spoke fluent Latin and were well acquainted with the culture of antiquity. If the need arose they could easily switch from their native Polish or Ruthenian to the language of Populus Romanus. This was what surprised Daniel Defoe who, while discussing the specific features of Polish nobility, emphasized:

A man who can speak Latin may travel from one end of Poland to another as familiarly as if he was born in the country. Bless us! What would a gentleman do that was to travel through England and could speak nothing but Latin... I must lament his condition17.

While returning however to the aforementioned Jesuit Colleges, we must say that the instruction which the young nobles received in them tended to form a certain specific frame of mind. Thanks to this instruction the nobles were attracted to the virtues that at one time excelled among the inhabitants of republican Romę, includ- ing honour, courage, chivalry, love of the Patria, etc. When implanted into the reality of the seventeenth-century Poland-Lithuania, these virtues called for the defence of Christianity. The nobles believed that the political Structure in which they lived madę

16 Cf. Jerzy Axer, „Latinitas” jako składnik polskiej tożsamości kulturowej, in: Agnieszka Ra- bińska, ed„ Tradycje antyczne w kulturze europejskiej - perspektywa polska, Warszawa 1995. 17 Daniel Defoe is quoted by Davies, op. cit., vol. I, 236-237. The Constitutional Uniąueness of the Polish-Lithuanian Commonwealth... 105 up the Antemurale or the bastion situated at the very outskirts of civilized world. Historical developments ensured that they repeatedly had to face challenges threat- ening their civilization and they repeatedly were forced to assume the task of rescuing Europa Christiana. It was within that linę of thinking that in 1683 Jan Sobieski under- took the challenge of rescuing Vienna besieged by an immense Ottoman army. And although he, as the commander in chief of all the Christian forces, was not the only ruler at the besieged capital of the Habsburgs, it is agreed among historians that the charge of his heavy cavalry on the Turkish camp was the turning point in the battle. While summing up the discussion of the nobility s ethos, we may also observe that the Latinitas culture was only one of the factors that accounted for the attach- ment of the noble milieu to the values of republicanism of Romę of antiquity. Of sim- ilar importance was the fact that the liberties and democratic devices as found in the State machinery of Res Publica Polonorum indeed seemed to make the latter a new embodiment of Res Publica Romanorum. The antique ideas of the extinct ancient Re­ public whose citizens enjoyed considerable civic rights and who distinguished them- selves by high public spirit, attachment to Patria and elevated morals, were some- thing that the Commonwealths nobles could invoke in order to consolidate their own specific identity. In addition, in their neighbouring European environment they could not detect anything what might resemble that kind of profound democracy in which they themselves had a share. Therefore their tendency to seek their roots in the ancient past was entirely natural18. The discussion of the distinct features of the noble Commonwealths constitu- tionalism cannot ignore one device that is repeatedly analyzed at length by the histo­ rians, the liberum veto. Unfortunately the discussion of this instrument is burdened with many exaggerations or simplifications. It seems right therefore briefly to give an account of its functioning in the light of recent research. The point is that from the beginning of the existence of Polish Parliament s lower house, its debates were gov- erned by the principle of unanimous consent. Yet, at the time when the nobility were distinguished by high political morals, specifically throughout the sixteenth and early seventeenth century, the need for unanimous consent was not strictly interpreted. There functioned effective mechanisms, like that of the “dispersed-lower-house” de- vice that successfully prevented this body from being paralyzed by the lack of una- nimity19. For all practical reasons it may be argued that for almost a century and

18 Axer, op. cit., 74. It is also interesting to find how, as a result of the dedication of Polish Ba- roque culture to Latinitas, Latin dynamically entered the . While in the 16th century only 1 in every 600 words in Polish was of Latin derivation, in the first part of the 17th century the proportion grew to 1 in every 15 words; cf. Aleksander Wojciech Mikołajczak, Łacina w kulturze polskiej, Wrocław 1998, 171. In memoirs, political speeches or letters, Latin phrases overlapped with Polish lines. The popular diary of the Polish squire of the time fully confirms this (cf. Cathe- rine S. Leach, ed., Memoirs of the Polish Baroque, The Writing of Jan Chryzostom Pasek, a Squire of the Commonwealth of Poland and Lithuania, Berkeley - Los Angeles - London 1976). ” Płaza, op. cit., 154-155; Baran, op. cit., 61. 106 Kazimierz Baran

a half the Polish-Lithuanian parliament worked smoothly. It was therefbre only in the mid-seventeenth century, in the climate of falling political morals and incessant wars, mostly of a defensive naturę, that the Commonwealth had to wagę, that the first symptoms of constitutional deterioration were observable. The absurd interpretation of unanimous consent reached its zenith and the liberum veto or individual nega- tive vote was actually implemented to prevent the successful condusion of the sejm debates. Slowly it became possible for one individual to break off the parliamentary session irrevocably. Because of this, between 1573 and 1763 about one third of the proved ineffective20. It was therefore only in the first part of the eighteenth century that the first ten- dencies to reform the Commonwealths constitution were observable. For some time however, the efforts of the reformers were crippled by the attitude of great powers that would later partition Poland-Lithuania.

Particularly Russia, starting from Peter the Greats reign, controlled the internal policy of the Commonwealth under her protectorate. Nevertheless, the persistent reformers man- aged to achieve partial success from time to time. They did it mostly through resorting to the already discussed idea of confederacy, the armed league of the noble citizens of the Republic who could take affairs into their hands when things seemed to slip away from state control. For the sejm debates the slogan of confederacy was particularly providential. It allowed for the convening of a parliament whose session could not be interrupted by liberum veto. Instead, majority vote was binding. It was thanks to one such sejm that the well-known Constitution of 3 May 1791 was adopted. It eventually introduced majority vote as the basie principle of parliamentary debate. Among outstanding devices adopted by this Constitution was also the vote of no confidence. This was the first time that this device was expressly introduced in any continental constitution. What is also worthy of notę in its provisions was the shaping of the image of the king on the British pattern (the king who ‘can do no wrong’ sińce all his executive acts required endorsement by the ap- propriate minister)21.

While ending this brief survey of the Commonwealths constitutional ups and downs it may be interesting to resort to what Czesław Miłosz put in a nutshell while depicting the image of the Commonwealth in the era discussed in the present con- tribution. He wrote:

Whatever may be said about the organism that borę the title of Rzeczpospolita and boast- ed an elected king at its head, the evils inherent in it should not be judged by our stan- dards, but rather by comparison with neighboring states of the same epoch. A greater contrast is hard to imagine: On the one hand, a chaotically ruled agglomerate, a sort of coral reef formed from the adhesion of a myriad of tiny particles, on the other, the

20 For morę details see Juliusz Bardach, Bogusław Leśnodorski, Michał Pietrzak, Historia ustroju i prawa polskiego, Warszawa 1993, 216-225, 223; Jędruch, op. cit., 117, 151; Baran, op. cit., 68-69. 21 Baran, op. cit., 69. The Constitutional Uniąueness of the Polish-Lithuanian Commonwealth... 107

centralized domain of the czars, where the ruler was omnipotent, temporal and spiritual power were one, conspiracy and pałace murders were basie political tools. In the former, a climate of relaxation prevailed: habeas corpus, tumultuous sessions of the parliament, an absence of regicide, corruption and traffic in votes, anarchist leanings on the part of indi- viduals and groups and even whole regions. The peasants were exploited and politically they did not count (as they did not count anywhere then), but class democracy was a fact. A plurality of groups battling for their own interests contended for power: magnates who flattered the hordes of petty noblemen; a monarch whose powers were so limited that he frequently had to humble himself to get credit for the army; towns’ intent on preserving what was left of their medieval privileges; and, finally, the Church and her religious or- ders, which answered to no one but Romę. In the parliament, any deputy who declared cLiberum veto!> could break off a session irrevocably - a law, unique in Europę, which implied that to pass laws a rarely attainable unanimity was necessary, and that freedom of opinion carried the seeds of its own destruction. Meanwhile, Russian diplomats looked on, stroking their beards, at first from a distance; but later, when their moves were backed up by a strong military force, they found the use of pressure or money to buy off parties or individual deputies a simple matter. Their success proved to be complete22.

Streszczenie

Ustrojowa osobliwość Rzeczypospolitej szlacheckiej w XVI-XVIII wieku

Artykuł analizuje te elementy ustroju dawnej Rzeczypospolitej szlacheckiej, które ujawniają niezwykłość jej konstytucyjnego kształtu. W przeciwieństwie do wielu państw europejskich, dryfujących w tym czasie ku absolutyzmowi, szesnastowieczna Rzeczpospolita utrwalała mo­ del demokracji szlacheckiej z podziałem władz (ostatecznie zadeklarowanym w konstytucji nihil novi z 1505 r.) i monarchą o statusie zbliżonym do nowoczesnego prezydenta. Podobnie jak ten ostatni, także i król Polski mógł być - zgodnie z artykułami henrykowskimi - pod­ dany oskarżeniu analogicznemu do dzisiejszego impeachmentu w razie naruszenia przezeń prawa. Z kolei nabyte przez szlachtę jeszcze w wieku XV rozliczne przywileje czyniły z tej grupy społecznej rodzaj społeczeństwa obywatelskiego, zdolnego oprzeć się arbitralnym zakusom władzy wykonawczej. Dzięki wolnościom obywatelskim gwarantowanym przez przywileje, zwłaszcza warecki (1422) i jedlnieńsko-krakowski (1430-1433) - szlachcic nie mógł być po­ zbawiony ani majątku, ani wolności osobistej bez zastosowania doń procedur przewidzianych przez prawo. Od czasu zaś konfederacji warszawskiej (1572) oraz artykułów henrykowskich (1573) - cieszył się wolnością religijną. Przywilej nieszawski (1454) z kolei gwarantował mu autentyczny udział w sprawowaniu władzy państwowej. Przywileje te ograniczone były co prawda do stanu nobilitas, lecz Rzeczpospolita posiadała wówczas najliczniejszą szlachtę w Europie; duży więc segment społeczeństwa miał - jak na standardy tamtych czasów - po­ czucie współrządzenia państwem. Artykuł akcentuje elementy samorządności w mechanizmie ustrojowym Republiki szla­ checkiej (elekcja viritim, zmaterializowanie demokracji bezpośredniej w funkcjonowaniu sej­

22 Czesław Miłosz, Native Realm, Oxford 1981, 17-18. 108 Kazimierz Baran miku szlacheckiego). Omawia także dezintegrację ustrojową państwa szlacheckiego, rysującą się coraz wyraźniej między połową XVII a połową XVIII wieku. W końcowej analizie siedemnastowiecznych prób wydźwignięcia Rzeczypospolitej z ma­ razmu ustrojowego akcent położono na te osiągnięcia Konstytucji 3 maja 1791 roku, które przyciągać mogą szczególną uwagę zachodnioeuropejskiego historyka. Konstytucja ta bo­ wiem na wzór brytyjskiej określiła króla jako tego, „who can do no wrong”, gdyż każdy jego akt wykonawczy wymaga kontrasygnaty ministra. Nadto zaś stworzyła ona pierwszy w Euro­ pie kontynentalnej prototyp wotum nieufności („[...] gdyby większość dwóch trzecich części wotów sekretnych obydwóch izb złączonych na sejmie ministra [...] odmiany żądała, Król natychmiast na jego miejsce innego nominować powinien”). Na marginesie rozważań poświęconych osobliwości ustrojowej dawnej Rzeczypospolitej zwrócono też pewną uwagę na kulturę typu Latinitas, jaka kształtowała „the frame of mind” ówczesnej szlachty. Wychowana w sprawnie funkcjonujących kolegiach jezuickich, szlachta ta nader biegle posługiwała się łaciną. Znała też znakomicie kulturę antyku. Połączona z war­ tościami chrześcijańskimi, ta ostatnia pozwalała w dramatycznych momentach odwoływać się co światlejszym przedstawicielom uprzywilejowanego stanu do takich cnót jak odwaga, honor, obrona chrześcijaństwa, oddanie sprawom ojczyzny itp. Wartości te legły niewątpliwie także u podstaw wiktorii wiedeńskiej z 1683 roku czy konfederacji barskiej (1768-1772), bę­ dącej rodzajem pierwszej narodowej insurekcji.