Executive and Legislative Powers in the Constitutions of 1848-49 [1 ed.] 9783428498390, 9783428098392

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HORST DIPPEL (ed.)

Executive and Legislative Powers in the Constitutions of 1848-49

Schriften zur Verfassungs geschichte Band 58

Executive and Legislative Powers in the Constitutions of 1848-49

Edited by

Horst Dippel

Duncker & Humblot . Berlin

Die Deutsche Bibliothek - CIP-Einheitsaufnahme Executive and legislative powers in the Constitutions of 1848 - 49/ ed. by Horst Dippel. - Berlin : Duncker und Humblot, 1999 (Schriften zur Verfassungsgeschichte ; Bd. 58) ISBN 3-428-09839-0

Alle Rechte, auch die des auszugsweisen Nachdrucks, der fotomechanischen Wiedergabe und der Übersetzung, für sämtliche Beiträge vorbehalten © 1999 Duncker & Humblot GmbH, Berlin Fotoprint: Berliner Buchdruckerei Union GmbH, Ber1in Printed in Germany ISSN 0582-0553 ISBN 3-428-09839-0 Gedruckt auf alterungsbeständigem (säurefreiem) Papier entsprechend ISO 97068

Acknowledgments The idea for this volume was born when I decided to take up the invitation Sascha and Ezra Talmor of Haifa University were kind enough to extend to me to chair a workshop at the Sixth Conference of the International Society for the Study of European Ideas (ISSEI) at the University of Haifa (Israel) from 16 to 21 August 1998. Commemorating the revolutions of 1848-49, the constitutions of these years were the obvious choice for scholarly consideration and assessment. My special thanks, therefore, go to the Talmors for instigating it all. I also should like to express my thanks to all those colleagues who were prepared to sacrifice part of their summer holidays and to contribute to the Haifa workshop, and of course, to the Deutsche Forschungsgemeinschaft for providing travel grants. Back horne, the hardships of being the editor began, and I am very grateful that several colleagues who had not been able to attend the Haifa conference were willing to contribute to this volume in order to make it more substantial. They all had to endure my wishes and impatience which they did with unfailing good humor. It was a great pleasure to find Norbert Simon from Duncker & Humblot Publishers spontaneously ready to accept the volume proposed to hirn and to publish it in his renowned series "Schriften zur Verfassungsgeschichte". That the idea finally turned into a book was only possible with the help of many who generously offered their time to make it happen. Kristina Koch, Jeff Phillips, and Mike Morrissey did their best to bring the English of non-native authors as c10se to a native-speaker level as possible. Nicole Jacob, Julita Klink, and Gerrit Schäfer had to work hard to transform a dozen manuscripts into a coherent volume according to the standards of the publisher. And Angelika Ferrante did, as usual, all the secretarial work without which the book could not have been completed. To all of them I wish to give my most sincere thanks. .

Kassel, July 1999

Horst Dippel

Contents Introduction ...... .................................................................................................. . Antonio Chiavistelli and Luca Mannori, Florence The Tuscan Statute of 1848. Background and Genesis of a Constitution .........

7

Jimos Zlinszky, Budapest The First Hungarian Civil Constitution (1848). Organization of Executive and Legislative Power .................................................................................... 35 Wilhelm Brauneder, Vienna Separation ofPowers in Austria's First Constitutions .....................................

55

Winfried Speitkamp, Gießen Die Verfassungsfrage in Kurhessen ................................................................ English Summary. .... ........ ................................... ................. ....... ..................

65 85

Andreas Schulz, Frankfurt "Starke Regierung aufvolksthiimlicher Grundlage." Die revolutionären Verfassungen der Hansestädte von 1848/49 ......................................................... 87 English Summary .......................................................................................... 105 Arend H. HuussenJr., Groningen Constitutional Refonn in the Netherlands 1847-1848 ..................................... 107 Harlmut Ullrich, Kassel The Statuto Alberlino ..................................................................................... 129 Appendix: RecolIections Regarding King Victor Emmanuel 11 and the Constitution, Written by Carlo Cadoma in 1878 .................................................. 155 Dieter Hein, Frankfurt "Self-Govemment der Nation." Exekutive und Legislative in der deutschen Reichsverfassung von 1849 ............................................................................ 163 English Summary .......................................................................................... 185 Rainer J. Schweizer, Saint GaU Die Ausgestaltung der Regierung des Bundes in der Schweizerischen Bundesverfassung von 1848 ....................................................................................... 187 English Summary .. .......... ........................ .......... ... .... .......... ....... .................... 203

VIII

Contents

Frederic Lamber!, Paris La Genese de la Constitution du 4 novembre 1848. De la confiscation de la Revolution a la defaite de la Republique .... ...... ...................... ............ ............ 205 English Summary..................... ................................................... ......... ......... 230 Giuseppe Galasso, Naples La Costituzione romana deI 1849 ................................................................... 231 English Summary .......................................................................................... 270 Horst Dippel, Kassel "A mixed form of government founded on democratic principles." The Wisconsin Constitution of1848 and the Virtuous Republic .................................. 271

List ofContributors ............................................................................................. 287

Introduction By Horst Dippel Modern constitutionalism is based on two generally acknowledged assumptions: first, that it came into being at the end of the eighteenth century, and second, that it is today the universally accepted source for legitimate power in almost any state throughout the world. How these ideas evolved from its revolutionary origins over the course of two hundred years to achieve today' s global significance is, to a large extent, still a mystery in spite of all the research, past and present, devoted to national constitutional histories. National constitutional developments added together will never constitute something like the sum of modern constitutionalism, but will only leave room for excuses for all kinds of national peculiarities and forms which may properly be called constitutional folklore. Modern constitutionalism itself has to be placed at the center of research, thus allowing the evaluation of the merits and deficiencies of different national performances. 1 Small wonder that in the course of the development of modern constitutionalism the biennium of 1848-9 has been continuously underrated. 2 No collection of its constitutions has ever been published, nor any systematic interpretation of them has yet been written in spite of the fact that during the revolutionary upheaval of 1848-9, more than 40 constitutions were, with at least some sort of

1 For more details, cf my Prolegomena zu einer europäischen VeIfasslUlgsgeschichte, in: Gesellschaft lUld Diplomatie im transatlantischen Kontext. Festschrift für Reinhard R. Doerries zum 65. Geburtstag, Stuttgart 1999 (in print). See below also the article by Antonio Chiavistelli and Luca Mannori who address aspects ofthis problem. 2 Cf Baris Mirkine-Guetzevitch, Les Constitutions europeennes, 2 vo1s., Paris 1951, I, p. 14, who suggests that between 1814 and 1914 "le mouvement constitutionnel s'individualise", while "fabrication en serie" of constitutions only happened in 1919-1922 and again after 1945. A similar perspective on nineteenth-century constitutionalism, again lUlderrating the importance of 1848-9, is developed by Jaaquin Varela Suanzes, Introduccion: Las cuatro etapas de la historia constitucional comparada, in: id. (ed.), Textos b3sicos de la historia constitucional comparada, Madrid 1998, pp.

xxiii-xxvii.

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public legitimacy, drafted in Europe and most of them enacted. 3 When asked why these years saw more constitutions than any other two-year period in Europe in the nineteenth century, conventional wisdom confines itself to pointing at the February revolution in Paris. But the strife for constitutional reform had been weil under way in parts ofEurope before February 22 and had even come to a conclusion in some countries before that date. In France, on the other hand, the events of 1848 had not resulted in a constitution until November, weil after many European countries had already enacted a new constitution, and this found itself in obvious contrast to some of the guiding principles ofthe February revolution. Why did Europe, at least since 1847 experience a renewed struggle for constitutions, culminating in 1848-9? Do all these constitutions really have a common topic or do they constitute just an incoherent mass that came about by various and more or less unconnected forms of revolutionary unrest? The answer to these questions leads back to modern constitutionalism, its characteristics and its development. With its origins in the American and the French revolution at the end of the eighteenth century, two sources are detected that were responsible for an American and a European, particularly, a French variant of constitutionalism the differences of which are visible until today. Both were born in revolution, carried through to achieve and secure human rights and freedom. Ever since this time, constitution was thought to be the synonym for liberty and progress. Whoever aspired for revolutionary change or for political reform in 1848-9 demanded a constitution. These years, therefore, lived to see, once again, the attempt of modern constitutionalism to prevail over the countervailing forces of legitimism and historical right, and its ensuing constitutions bear witness to what extent modern constitutionalism succeeded or failed to implant its core ideas, either in its American or in its French variant, in the different countries. What in political terms may be called the European revolutions of 1848-9, is in its constitutional meaning the struggle of modern constitutionalism against the forces of the past. The twelve articles assembled in this volume are not designed to provide answers to all these questions or even to substitute a still missing constitutional history of 1848-9. Instead, they were written to illustrate, with a focus on the organization of legislative and executive powers, some major aspects of this struggle. In the sampie of constitutions of 1848-9, an American constitu3 In spite of its title, Carlo Ghisalberti, 11 costituzionalismo dei ' 48, in: Rassegna storica dei Risorgimento LXXXVINumero speciale, 1998, pp. 39-48, interesting as it is, is more an overview over constitutional aspirations in various European cOlmtries during the biennium than a synthesis under the perspective of modem constitutionalism.

Introduction

3

tion of 1848 is deliberately included to document the whole range of ideas from nearly unconcealed opposition to major constitutional concessions to the rule of popular sovereignty in a democratic republic and to demonstrate the similarities as weU as the differences between European and American constitutional concepts at the time. It may be worth keeping in mind that this American constitution, the Wisconsin constitution of 1848, with its "modern" principles, is the only constitution drafted and adopted in these years that is still in force today. There were others that lasted for several decades up to almost a century, such as the Swiss and the Dutch constitutions and the Statuto Albertino, all from 1848. Most of the other constitutions, however, failed to survive the defeat of the revolution and were repealed by reactionary politics at the beginning of the 1850s. Some of them never got even that far and were stifled before being put into practice, such as the German constitution of the Paulskirche or the Roman constitution of 1849. The Kremsierer Verfassungsentwurf of 1848-9 even had to be buried before the Imperial Diet was able to adoptit. Longevity or ephemerality stand for major aspects in this struggle for modern constitutionalism, but they are no criterion for the "modernity" or "backwardness" of a constitution. This quality may be indicated by the constitutional models referred to or copied from. In Italy the French Chartes of 1814 and especially of 1830 and, hardly less important, the Belgian constitution of 1831, were obviously more influential with the early constitutions than with those drafted in the second half of 1848 or in 1849. This is also true for Germany and Austro-Hungary, where most constitutions were comparatively later drafts, when traditional forces appear to have been more powernd in rejecting too sweeping adoptions from French constitutionalism. Some countries were able to adapt their own constitutional traditions to the changed situation. Thus, the Netherlands had improved on its own constitutional history since 1795, as Arend Huussen demonstrates. The Electorate of Hesse, as Wilhelm Speitkamp teUs us, further developed its liberal constitution of 1831, and according to Rainer Schweizer Switzerland revitalized its own reform drafts of 1832-3, but was open to American influences, too. In restricted aspects, the impact of American constitutionalism can also be documented in the constitution of the Paulskirche and in the French constitution of 1848, which placed an American-like President beside a French legislature, only to realize that this combination was doomed to faiI. Nevertheless, the French constitution of 1848, though in modified form, might also stand as model for constitutions drafted in 1849, such as that ofthe Roman Republic. These adaptations to French or American ideas or to their own history and tradition, and thus the question to what extent modern constitutionalism gained its way may not or not primarily be expressed by direct loans from respective constitutions but also by the way the constitution came into being.

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Horst Dippel

Was it decreed by the monarch, octroyee like the French Charles, such as the Statulo Alberlino, and the Tuscan statute - as Antonio Chiavistelli and Luca Mannori document - or the Austrian constitution of 1849, or was it the result of deliberations in a representative body? This might have been a French inspired Constituent National Assembly, as in France in 1848 and in the Paulskirche in 1848-9, or anormal diet, as in Austria and Hungary - both analyzed by Wilhelm Brauneder and lanDs Zlinszky respectively - or committees or commissions set up for this purpose (partially in the Netherlands, in Switzerland, the Electorate of Hesse, and Rome). Due to the fact that the American convention idea never took root in Europe, the only constitutional convention elected for drafting the constitution remained the one in Wisconsin. Constitutional monarchy was the dominant idea in Europe in 1848-9, though with notable exceptions. This kind of monarchy should stand for the compromise the established political and social order was willing to accept in the given situation. But in the countries subscribing to it, it also marked the bounds, modern constitutionalism was not allowed to transgress. Its midnineteenth-century concept did not only exclude universal suffrage, even in its form restricted to adult males - there were still some American states which successfully opposed the introduction of this principle. Even more important was its outright denial to accept popular sovereignty, the very foundation of modern constitutionalism. Not only the decreed constitutions were, obviously, uni ted in this dismissal of the constituent power of the people, but among those drafted by Constituent National Assemblies, curiously enough, also that ofthe Paulskirche. 4 Though most of these constitutions of constitutional monarchy actually were, in terms of modern constitutionalism, more or less incomplete realizations of its principles, the compromise they expressed tended, nevertheless, to strengthen the role of the legislature. In some cases, as in the Netherlands, the estates were definitely abolished and a parliament based on modern representation was introduced. Among the new rights acquired, the relationship between legislature and actual government had to be newly defined, and, with the ministers, made politically responsible, in some cases the way was opened to a modern parliamentarian system of government. With the Sialulo Alberlino this was achieved in a rather short time, as Hartmut Ullrich demonstrates, and Dieter Hein argues that the constitution of the Paulskirche paved the way in the same direction. In view of modern constitutionalism and its struggle to gain acceptance, the introduction of constitutionally more radical forms through republican institu4 In addition to Dieter Hein's artic1e, cf my artic1e Das Paulskirchenparlament 1848/49. Verfassungskonvent oder Konstituierende Nationalversammlung?, in: Jahrbuch des öffentlichen Rechts der Gegenwart 48,2000 (in print).

Introduction

5

tions were the exceptions. This radicalism was less rampant in the German city republics of Hamburg, Bremen, and Lübeck, where popular politics nevertheless succeeded in making some significant inroads into the power of the patriarchal bourgeoisie, as Andreas Schulz proves. In contrast to the Hanseatic cities, the Swiss example reveals a more mature understanding of the necessary balance between power and liberty in the forming of the new federal executive. What seemed to be much easier for the Swiss to settle, in rejecting French constitutionalism while at the same time taking up ideas from the American, proved to be unsolvable for the French. Other than the First Republic, the Second was understood to need an executive worth its name to avoid another regime d 'assemblee, prone to bringing forth a new Robespierre. But the revolutionary idea of popular sovereignty allowed for no prevarication, thus rendering it impossible for the constitution to offer a remedy in case of a conflict between president and legislature, both immediate expressions of popular sovereignty, as Frederic Lambert makes dear. In some way, the most interesting case seems to be that of the constitution of the Roman Republic of 1849, which Giuseppe Galasso exemplifies. In taking up the French example of 1848, it set up a democratic republic which tried to avoid the errors of 1848 and of 1793 at the same time, and established an executive limited in its powers combined with a legislature that was made less powerful than in 1793, or for that matter, than in the Pennsylvania constitution of 1776. While the French constitution of 1848 is primarily the expression of French constitutionalism that had tried in vain to mitigate its own former excesses by inserting a few American ideas, the Roman constitution seems to handle the problems involved in a much more mature way, thus demonstrating in a very traditional sense and without additional legislative limitations, what modern constitutionalism was allowed to achieve in mid-nineteenth-century Europe. Interestingly enough, in constitutional terms, the step from the Roman constitution of 1849 to the Wisconsin constitution of 1848 appears to be a rather small one. Here in Wisconsin, the framers set out to limit both the legislative and the executive power to make liberty secure. Again, they tried to achieve this in distinctly traditional ways in borrowing from the recent example of New York, above all, however, from examples and experiences derived from the revolutionary period and its dassical republicanism. Rome, like Wisconsin, at that time, had not yet lived through the experience of the industrial revolution which made some of their major constitutional answers look so comparatively similar especially when compared with those given in the second half of the nineteenth century. In constitutional history, the years 1848-9 stand out for at least four major results that transformed the performance of modern constitutionalism in

6

Horst Dippel

Europe during the second half of the nineteenth and in the twentieth centuries: firstly, for strengthening the idea of modern political representation and broadly elected representative legislatures; secondly, for definitely re-defining constitutional monarchy as a system of government with a modern parliamentarian basis; thirdly, for establishing the democratic republic with notable differences to the American example as alternative model for European constitutional development; and fourthly, for introducing the American example of federalism as a viable option in Europe. Human rights, universal suffrage, bicameralism, constitutional courts, and other fundamental principles are also intimately connected with the constitutions of these years. Together they thoroughly underline that in its struggle for achievement in Europe, 1848-9 was a crucial period which succeeded in making major inroads into conservative positions of legitimism and historical right, with the Netherlands, Switzerland, important parts of Italy, and certainly also Denmark as telling examples. After the 1790s, it was the second time that American constitutionalism tried to make its impact on Europe but the results were definitely more restricted than during the first period. But, in spite of these differences and in contrast to most of the revolutions of 1848-9, modern constitutionalism succeeded in these years to make a giant step forward that was never to be undone. More than anyone else it actually was the winner of the biennium, and some contemporaries definitely knew so.

The Tuscan Statute of 1848 Background and Genesis of a Constitution By Antonio Chiavistelli and Luca Mannori Like most ltalian constitutions of 1848, the Tuscan is also not of much appeal to the constitutionallaw scholar. Its text is indeed a nearly calligraphic copy of the charter granted by Louis XVIII to his subjects thirty-four years before. Hurriedly drawn up in a few days by a committee of only five people, who did not leave any report on their work, the Tuscan Statute deserves to be mentioned only because of its lack of originality in comparison to its transalpine model. A careful reading of the document, though, can reveal a few shifts from the French pattern. However, the core of the constitutional frarnework, represented by the fundamental organization of legislative and executive powers, is nothing more than a faithful photograph of the short French paragraphs written in 1814, and reproduced without any valuable modification in 1830. Just as in Rome and Turin, the purpose of our constitutional frarners was to found a French-style limited monarchy, in which the direction of the executive branch was retained by the prince whereas the legislative tasks were carried out through a mutual agreement arnongst the Monarch, the representatives of the people and a royal-appointed Senate. For a people who had never known any form of representative government, the heart of the matter was the introduction of an elective assembly called to cooperate with the sovereign in his lawmaking function; everything else was mere detail. And the existence of a plentifully tested European constitutional model freed the framers from the charge of looking for any other technical solution. So, if we confined our inquiry on the nature of the legislative and the executive branches of the Tuscan constitution to an assessment of the text and its elaboration, we might result in ending our work before beginning it. The two powers are nothing more than two empty frarnes, waiting to be refilled by the concrete behavior of the constitutional actors. But unfortunately the short life of our Statute prevented the development of any autochthonous constitutional custom giving adefinite content to the vague words of the document. Differently than in Piedmont, where the prosecution of the constitutional experiment over the crisis of 1849 conferred the Statuto Albertino its own shape, in Tus-

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Antonio Chiavistelli / Luca Mannori

cany the few and tumultuous months of the Lorraine constitutional monarchy did not result in molding a new political system. Thus, it is not surprising if, compared to the extensive literature devoted to the political history of the Tuscan revolution, we cannot quote even a single study about the running of its institutions. Their ephemeral existence seemed not to deserve any serious effort of investigation. Given the difficulty both of a formal and an institutional approach to our subject, we have chosen to establish it in a different perspective; and this by paying more attention to the context than to the contents ofthe charter. As in the rest of Italy, also in Tuscany the great novelty of Quarantotto was less the adoption of a specific constitution than the perception of the necessity of a constitution. Only a few of the Italian pre-'48 liberals were fully prepared to pass from a political order based on the continuity with the past to a new form of society, in which the power had to be rationally founded. For most of them, overcoming absolutism ought naturally result from are-expansion of the old self-government, without questioning the prince's sovereignty. The conquest of a 'true' constitution in the first months of 1848, so in advance to any expectation, was an enrapturing event; but it suddenly obliged the ruling dass to face a quite new responsibility. The subject of legislative-executive relationships must be observed within this context. If our liberals were certainly anxious to have a part in the decisi on making process, nonetheless they were not prepared to take on the charge of the State's direction. Their ideal was something like an old regime-mixed government, where the Parliament was called to share the prince's power but not to manage aseparated part of it. What they were looking for was only an institutional space in which they could address their requests to the sovereign, control his administration, consent to his taxes and assent to his most important measures. Nor were the separation of powers or the supremacy of Parliament goals of consequence to them. But this program, despite its apparent prudence and reasonableness, soon proved to be doomed to failure, just because a modern constitution did not allow itself to be run as apre-modern one. And in Tuscany, where the moderate elite was unable to give the legislative that central position which a parliamentary system would require, the constitutional monarchy rapidly deteriorated. Thus, the history of our Statute is mainly the history of a misunderstanding about meanings and contents of the concept of constitution. In the following pages we will describe first the typical eighteenth-century features of the pre48 Tuscan society (§§ I-III) and the road which led it to the sudden conquest of its constitution (§§ IV-V); next we will assess how the cultural background of the ruling dass made the dialogue among prince, parliament and cabinet so laborious and suffered to doom it to a deadlock after less than seven months of constitutional experience (§§ VI-VIII).

The Tuscan Statute of 1848

9

I. The Institutional Background from the Medici to Napoleon On the eve of 1848, Tuscany was a small country of about 1,500,000 peopIe, under the absolute govemment of Leopold 11, fourth Grand Duke of the Lorraine dynasty (1824-1859). In spite of its modest size and its simple framework of govemment, the state had a rather complex organization, whose characteristics were the result of an odd historical blending. Basically, the mixture was made up of three elements: the Medici tradition, the Leopoldin model and the Napoleonic experience. Until the middle of the 18th century, Tuscany showed the typical aspects of an Italian late-medieval 'mosaic' state. In fact, it was composed of about 700 urban and rural communities which, having gradually fallen under the rule of Florence and Siena between the 14th and 15 th centuries, nevertheless retained their own statutes and their right to self-govemment, which they had enjoyed at the time of their political independence. The Medici dynasty, which took control of the two 'dominant cities' of the region during the 16th century, carried on with the same formal respect for local identities, so that, in legal parlance, its dominion was usually labeled as a confederation of different 'respublicae' rather than as a single-ceIled kingdom.! It is also true that the preservation of this classical medieval Verfassung did not prevent the central govemment from extending a tight network of administrative controls over 10cal municipalities. In other words, the strengthening of bureaucratic controls seemed the only way to make up for the lack of constitutional unity in the Grand duchy. So, when the Medici died out in 1737 and their Crown devolved to the Lorraine dynasty, the new rulers found an extremely disjointed, as weIl as a highly centralized state, where each community was something like an autonomous city-state even if municipal officials could not decide anything without the govemment's specific consent. Looking for a solution to these discrepancies, the new Tuscan leadership found it in the physiocratic doctrine. According to the teachings of Quesnay, Peter Leopold (1765-1790) and his staff forged a new municipal constitution, which came into effect in 1774? The twofold purpose of the reform, namely

! For a general view, see Elena Fasano Guarini, Lo Stato mediceo di Cosimo I, Florence 1973; Furio Diaz, Il Granducato di Toscana - I Medici, Turin 1987; Luca Mannori, Il sovrano tutore. Pluralismo istituzionale e accentramento amministrativo nel principato dei Medici (secc. XVI-XVIII), Milan 1994. 2 The most complete study about the reform is Bernardo Sordi, L'amministrazione illuminata. Riforma delle comuniti e progetti di costituzione nella Toscana leopoldina,

2 Dippel

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Antonio Chiavistelli / Luca Mannori

the creation of a uniform administrative web and the dismantling of the cumbersome and oppressive Medici apparatus, was attained by stating a new typically physiocratic political principle: the exc1usive right of landowners to rule municipal communities. If indeed real property was now dec1ared the only form of authentie wealth, only landowners had to pay taxes, and consequently only landowners could be allowed to decide on public expenses. As a result of this elementary syllogism, whose revolutionary strength had al ready been tested in Austrian Lombardy during the l750s, the whole Medici edifice collapsed. The old local units, with their multifarious constitutions and their emphatic form of small republies, were swept away. In their place Leopold set up no more than 247 new"landowners' communities", not exactly legally identical to each other (the most important cities reserved some of the privileges inherent in their internal organization), but, in point of fact, very similar. Central control over locallife was dec1ared useless, because the interest of taxpayers, as such, seemed the best guarantee for good administration. Every municipal corporation would have to be administered as freely as a private partnership, the state' s job being confined to the maintenance of justice and public order. On the surface, the Leopoldin revolution could not have had more radical effects. Nevertheless, a more attentive examination reveals that the great reform did not change the intimate structure of the Tuscan constitution. Nothing was farther from Peter Leopold's perspective than the creation of a 'modern' state, if the expression is taken to mean, as it is now, a compact political body having an original identity and a range of autonomous purposes. Reformers supposed political space to be a mere assemblage of self-governing, economic societies and central authority nothing more than their institutional center of gravity. From the point of view of its political geometry, Leopold's Tuscany was not much different from the Medici format. Both ascribed to the state the sole task of balancing and preserving local interests, and both exc1uded any direet link, not mediated by particular bodies, between individuals and the community in general. Reliable evidence of this persistent and composite nature of the Tuscan State is set out in the celebrated constitutional plan secretly prepared by Peter Leopold at the end of his reign.3 A unique example among the

Milan 1991; whereas the most recent survey of the Leopoldin age is Luigi Mascilli Miglion'ni, L'eta delle riforme, in: Furio Diaz/Luigi Mascilli Migliorini/Car[o Mangio (eds.), Il Granducato di Toscana. I Lorena dalla Reggenza agli anni rivoluzionari, Turin 1997, pp. 247-421. 3 In addition to the studies already quoted, a reconstruction of the project is available in Adam Wandruszka, Pietro Leopoldo. Un grande riformatore, Florence 1968, pp.

The Tuscan Statute of 1848

11

enlightened monarchs of his age, Leopold seriously considered the possibility of limiting his absolute power by creating a representative parliament, which would have enabled landowners to control the national budget and to consent to new taxes (indeed, if they already had such powers at a locallevel, it looked as though they would also have the same rights in state management). For the time being the project miscarried, but, as we shall see, it would play an important part in the future development of Tuscan history. Just because of this, it is not worthless to remark that Leopold's plan, although astonishing for its age and context, was still very far from the outline of a nineteenth century constitution. On the one hand, it adopted a typical pre-revolutionary concept of representation, in which the deputies were not charged to represent the land as a whole, but only its single constituents (they did not have to be elected by the generality of the people, but appointed by a number of 'provincial assemblies' expressed by local councils). Second, any idea of separation of powers was completely out of the project, which placed the sovereignty into the hands of the prince and called the general assembly only to make proposals and approve or reject the Grand duke's decisions. These features were strictly coherent to the physiocratic spirit of Leopold's design, which meant to create not a parliament of citizens but a representation of proprietors, whose interests were naturally restricted to economic affairs. Later events will show how hard it would be for the Tuscan leadership to overcome these old concepts. The Napoleonic period apparently did not leave any durable and noteworthy mark on the country's constitution. 4 Although first occupied by the French and then, in 1808, annexed to the Grand Empire as part of its metropolitan land area, Tuscany did not absorb from France either its ideal of national identity or its specific taste for a monolithic and highly bureaucratized executive administration. Thus, in 1814, the restored Lorraine dynasty could reestablish the whole Leopoldin system and present itself as the heir to the most 'liberal' example of enlightened absolutism in Ita1y.~ The 'Leopoldin myth' provided the restored government with politicallegitimacy until 1848.

390 and fol.; Furio Diaz, Francesco Maria Gianni. Dalla burocrazia alla politica sotto Pietro Leopoldo di Toscana, Milan-Naples 1966, pp. 278 and fol.; Giorgio La Rosa, Il sigillo delle rifonne. La costituzione di Pietro Leopoldo di Toscana, Milan 1997. 4 The best general view ofthis period is offered by Romano Paolo Coppini, Il Granducato di Toscana - Dagli 'anni francesi' all'unita, Turin 1993, pp. 1-162, with a large bibliography. For a more specific viewon administration see Giuseppe Pansini, I mutamenti nell'amministrazione della Toscana durante la dominazione napoleonica, in: Ivan Tognan'ni (ed.), La Toscana nell'eta rivoluzionaria e napoleonica, Naples 1985, pp. 553 and fol. , Piero Pieri, La Restaurazione in Toscana (1814-1821), Pisa 1922; Coppini, Il Granducato di Toscana, pp. 169-333; for the institutional aspects, always useful is Al2"

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ll. The Restoration and the Return to a Patemalistic Government So, the Tuscany of 1814 was formally the same as it had been forty years before, thus, a type of stateless society, largely founded upon self-government and the most orthodox application of the classical free trade doctrine. 6 Inasmuch as the market was self-sufficient and the management of public affairs had become a basically local activity, central government was looked upon as a somewhat fading entity - and its tiny bureaucracy, the poverty of its budget and the substantial absence of any army or navy strengthened this impression. Apart from judicial jobs, it did not seem to have much to do. But this State 'light-handedness' was more apparent than real. Already in

1814, without expressly denying Leopoldin tradition, the government had be-

gun to discreetly set up an intrusive and ever widening administrative machine, which silently changed the features of the political system. The official, and certainly not at all unreasonable justification for this policy, was to be found in the mediocre administrative performance of the local Leopoldin community. Indeed, it had become evident that the celebrated notion that the taxpayer, as such, would perforce take an interest in administrative procedures proved to be fallacious. Many landowners were apathetic, whereas the most active were too entangled in their own net of personal connections to really devote any thought to the common good. But the deepest roots of the new trend resided in the old Tuscan State's paternalistic attitudes. Accustomed by a pluricentennial tradition to present itself as the 'tutor' of its communities, regarded as being incapable of self-government, the 19th century government could not accept the role of 'night watchman' which the physiocratic model had assigned to it and reverted to practicing strict control over locallife. In a few years, the old administrative offices were restored to all their classical functions and the central apparatus acquired the look of a highly rationalized application of its rough pre-Leopoldin archetype.7 Administrative proberlo Aquarone, Aspetti legislativi della legislazione toscana, in: Rassegna storica del Risorgimento XLill, 1956, pp. 3 and fol. 6 This policy is linked above all to the name ofthe granducal minister Vittorio Fossombroni: Alessandro Carraresi, La politica interna di Vittorio Fossombroni nella Restaurazione, in: Archivio storico italiano CXXIX, 1971, pp. 267 and fol.; ZefJiro Ciu!foletti, Vittorio Fossombroni e la continuiu. della tradizione leopoldina in Toscana (1744-1854), in: Rassegna storica toscana XXI, 1975, pp. 161 and fol.; Ivo Biagianti, Vittorio Fossombroni tra idraulica e politica, in: Rivista di storia dell'agricoltura XXVIII, 1988, pp. 179 and fol. 7 Stefano Vitali, Arnministrazione comunitativa e controlli in Toscana nell'eu. della Restaurazione, in: Storia amministrazione costituzione. Annale dell'Isap IV, 1996, pp. 149 and fol.; but, see also Giuseppe Pansini, Gli ordinamenti comunali in Toscana dal 1849 al 1853, in: Rassegna storica toscana 11, 1956, pp. 33 and fol. The trend described

The Tuscan Statute of 1848

13

cedures reverted to the past, too, even if the Napoleonic example suggested the addition of more efficient controls such as the previously unknown municipal budget, which now had to be approved by central authorities at the beginning of each year. In short, no local act could be performed without the previous approbation of a central office and the community chancellor, who was formally a town clerk, but actually acted as astate servant entrusted with watching over the councils. Let us add that, according to the French model, the mayor was freely appointed by the Crown from among the local landowners, while the other counselors were chosen by the government from a double list of names not locally elected, but drawn by lot. Finally, we must not forget that in 1816 the access to local incumbencies was reserved for the largest landowners only, who seemed to offer greater guarantees of administrative thriftiness. Thus, during the whole pre-1848 period, municipal representation was monopolized by less than 15,000 people, 8 such a restricted number that the government often found it difficult to secure a regular alternation of positions in local offices, but which did greatly facilitate control over the 10caI elite. If we put together all these elements, we might be tempted to conclude that Tuscany had developed into a sort of 'administrative monarchy', and this is openly true if we look at the increasing weight of its bureaucracy or at its heavily centralized decision-making process. Nevertheless, it is also evident that the institutional framework of the country did not change in that the Grand duchy went on being astate of communities. The newapparatus did not aim at administering itself, but only at checking up on the administration of the municipalities. Moreover, in no way different from the past, its main purpose was not the improvement of local services, but the maintenance of the status quo by the prevention of social conflicts. In 1847, as Leopoldo Galeotti, one of the first critics of Leopold's paternalistic government, was to write, Tuscan subjects had all the disadvantages of centralization with none of the correlative benefits. 9 The structure of the central government, which still re-

in the text was emphasized after 1825, when the govemment set up a central service whose duty it was to oversee public works at a 10callevel and abolish any municipal liberty in deciding on the expenses for roads, bridges, buildings and so on (Pietro Vichi, La costruzione della rete carrozzabile toscana: basi giuridico-amministrative e realizzazioni tecniche (1814-1859), in: Storia urbana XXV, 1983, pp. 29 and fot). I This item is provided by a govemment inquiry of 1832 (Archivio di Stato di Firenze, Segreteria di [manze, 612: the exact number quoted by the document is 17,667, but it also inc1udes many corporations, which were allowed to be represented in the councils via their managers). 9 Leopoldo Galeotti, Della Consulta di Stato, Florence 1847, p. 12; the same concept is also widely developed in: id., Delle leggi e dell'amministrazione della Toscana and Della riforma municipale, again published in Florence on the same date. As for Galeotti's thought, Giovanni Assereto, Leopoldo Galeotti. Biografia politica di un

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jected the modem model of aministerial organization, was not conceived in order to act, but only in order to filter peripheral requests and grant or reject them. And these features were emphasized by the fact that Tuscany was a vassal kingdom of the Austrian Empire, so that the government was discharged from the necessity of planning any global military, foreign or financial polieies. At its core, the State was still the old scaffolding put up by the Medicis, its main concern being to ensure the subordination of local communities.

ill. The pre-1848 debate: its generallines and topics Now, at the root of Tuscan 'Forty-eight' we find a general dissatisfaction with this administrative practice rather than the request for a really new constitution. "We are living among the wrecks, whatever their place in time, of all periods and kingdoms", wrote Vincenzo Salvagnoli, another famous publicist of the period, "and every element of good is scattered and buried under ruins."lo But, as we shall see, until February 1848 almost no one seriously thought of subverting traditional order, if we mean by 'traditional order' a society still founded on local and not national identities. Since the Middle Ages, politicalliberty had always been identified with the confines of a town or village square, whereas the state was perceived as nothing more than a vehicle of co-ordination. Like the other Italian enclaves, Tuscany had never experienced a modem representative government, and even if British or French constitutional models were obviously well-known, they seemed to belong to a completely different political world. Certainly, 'nation' and 'fatherland' had become the key words of the new political vocabulary, but their content was only cultural, and not yet constitutional. For a pre-'48 Italian liberal, a nation was simply an agglomerate of people firmly settled on the land and unified by a common language, religion and historical traditions, with full rights to their independence. But this definition did not imply the existence of any sort of common will or the necessity of a central representative body to express it. 11

moderato toscano ne1 periodo preunitario, in: Annali della Fondazione Einaudi V, 1971, pp. 77 and fo1. 10 Vincenzo Salvagnoli, Discorso sullo stato politico della Toscana nel marzo 1847, Florence 1847, p. 18. 11 For a general outline of liberal constitutional thought in this period, within the confmes of a great deal of writing now largely anachronistic, see Sergio La Salvia, Il moderatismo in Italia, in: Istituzioni e ideologie in Italia e in Germania tra le rivoluzioni, ed. by Rudolf Lill/Umberlo Corsini (Annali dell'Istituto storico italo-germanico di Trento, Quaderno 23), Bologna 1987, pp. 169 and fo1.; Alfonso Scirocco, L'Italia deI Risorgimento, Bologna 1990, pp. 221 and fo1.; Antonino De Francesco, Ideologie e movimenti politici, in: Storia d'Italia, ed. by Giovanni Sabbatucci/Vittorio Vidotto, Le

The Tuscan Statute of 1848

15

Thus, when, in June 1846, the election of the 'liberal' cardinal Mastai to Saint Peter' s throne suddenly opened the path to reforms not only in the Church State but also in its neighboring countries, the discussion about constitutional systems was still a long way off. Actually, if we except the republican solution supported by the democrats (and considered, in the opinion of most of the public, as a dangerous utopia) the liberals did not go much beyond a mere 'consultative monarchy', in which people were not called upon to deeide for themselves, but only to co-operate with the prince in a purely advisory capacity.12 It may appear astonishing that such a timid proposal (launched for the first time in Italy by the Austrian government itself at the beginning of the Restoration13) was, for instance, the only one expressly approved by Vincenzo Gioberti or Cesare Balbo in the early l840s. Certainly, liberal strategy was gradual and based on alliances with the thrones, so that its first concern was the respect for the sovereign's rights and prerogatives. But this is not enough to explain the liberals' lack of interest in constitutional topics. The point is that political liberty was not an essential item on their agenda. What for them appeared to be really essential was only the domestic and nearly private liberty which every taxpayer had the right to enjoy inside the boundaries of his local society in compensation for his economic responsibility towards it. And if the program might also indude a further request for a general representative assembly, before the beginning of 1848 this generally took on the shape of a sort of enlarged municipal council with weak political connotations. The institutional goals of the Tuscan moderates during the two years from 1846 through 1847 were strictly limited to these general criteria. Their main enemy was that anonymous state bureaucracy which came into being after the Restoration, and which, by means of its suffocating intrusions, mortified the dignity of a local ruling dass whose origins often went back to the Middle Ages. So, their primary objective was the reformation of local communities, premesse dell'wlita, vo1. I, Bari 1994, pp. 294 and fo1.; Giovanni Spadolini, La crisi delle ideologie dopo la svolta deI 1830-31 e l'avvio aHa formazione deI programma nazionale, in: L'Italia tra rivoluzioni e riforme. 1831-1846, ed. by Istituto per Ia storia deI Risorgimento italiano, Rome 1994, pp. 25-52. 12 The circulation of this model in the period 1846-47 is now discussed in J~uca Mannori, Le Consulte di Stato, a paper presented in March 1998 to the Florentine congress "Le riforme deI 1847 negli Stati italiani" and now in the process of being published in "Rassegna storica toscana". 13 Carlo Ghisalberli, Dalla monarchia amministrativa alla monarchia cOl1sultiva, in: id., Contributi alla storia delle amministrazioni preunitarie, Milan 1963, pp. 147 and fo1.; Id., Dall'antico regime al 1848. Le origini costituzionali deH'Italia moderna, Bari 1974, pp. 121 and fo1.; Alan Reinermann, Mettemich and Reform. The Case of the Papal State, 1814-1848, in: Journal of Modem History XLII, 1970, esp. p. 545. Actually, a model of this kind had been in force in the Lombardo-Veneto kingdom since 1814: Marco Meriggi, 11 Regno Lombardo-Veneto, Turin 1987, pp. 39-80.

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aiming at restoring them to their original liberty and self-government. At the same time, the Leopoldin design had to be completed by setting up a central representative assembly elected by local councils, which "ought to have made the prince conscious ofthe people's needs and the people conscious ofthe government' s behavior", as Galeotti put it. 14 Without overthrowing the Grand Duke's sovereignty, this body, more or less conforming to Peter Leopold's plan which was weIl known throughout the Tuscan intellectual milieu, 1~ would have allowed a permanent dialogue between the prince and the 'sanior pars' of his people, according to the pattern of the pre-modern assemblies by rank. The basic concept of our liberals was still sharing an undivided power, not separating it among a number of different agencies. Given these premises, the results of the political process that had started at the end of 1846 were relatively unexpected. Indeed, instead of an arrangement within the traditional framework of government, a written constitution came into being molded on the classical European models and based on the principle of the separation of powers. To appreciate this unforeseen conclusion we now have to examine the course of events from a closer point ofview.

IV. The Road Towards the Consultative Monarchy 16 In March 1847 Baron Bettino Ricasoli, one of the most influential members of the Tuscan elite, informally met with Francesco Cempini, the leader of the granducal government. This meeting marks the beginning of the reform process in Tuscany. Actually, Ricasoli strongly and clearly argued in support of the need for a complete reform of the Tuscan monarchy. According to the cultural background described in the preceding paragraph, he called for a consuItative institution serving to support the government in carrying forward the business of state. He especially feit that the central power, which had been grafted onto the municipal system, had, for the lack of restraints, swollen out

14 Leopoldo Galeotti, Della sovranitil edel govemo temporale dei Papi, CapolagoLausanne 1847, p. 244. 1~ ZeJfiro Ciuffoletti, I moderati toscani e la tradizione leopoldina, in: I Lorena in Toscana, ed. by Clemenfina ROfondi, Florence 1989, pp. 121 and fo1. 16 In this paragraph we follow the reconstruction of the events already proposed in Anfonio Chiavisfelli, Toscana costituzionale. La difficile gestazione dello Statuto fondamentale deI 1848, in: Rassegna storica deI Risorgimento LXXXIV, 1997, pp. 339 and fol. We refer to this artic1e for more details and the bibliography.

The Tuscan Stahrte of 1848

17

of proportion to the point where the "municipality", choked by excessive controls, had become unable to work on the community's behalf. 17 So, in the early months of 1847, areform of local powers appeared to be the natural cornerstone for a sweeping reorganization of the state. Faced with these urgent demands, at the end of May 1847 the government finally promised to summon a municipal conference entrusted with the settingup of the much needed reform. This step led to a free and in-depth debate about the state's structure - the first of its kind in Tuscan history. Unfortunately, the conference was never convoked during 1847, because of the Crown' s obsession with endangering its own stability by an inopportune concession. But this "ministerial lethargy" did not prevent the reform movement from going on under the direct influence of some important external events. Indeed, in the Pontifical State a consultative body elected by the municipal councils had been authorized in April, while, in Piedmont, the government was drawing up a plan based on largely representative local councils. So, Leopold II, however reluctantly, was compelled to proceed. After the promulgation of a new law recognizing a moderate freedom of information, at the end of August he resolved to introduce a new consultative council, the 'Reale Consulta di Stato', formally rather close to the moderates' requests, but which was actually only a non-elective and very restricted committee, that disappointed even its kindest critics. While the Tuscan notables were asking for a consultative assembly based on the local councils and supported by the moral authority of widespread public opinion, the government did not concede any more than a sort of Napoleonic Conseil d 'Etat, whose members were all appointed by the Grand Duke and kept under his strict control. Thus, at the beginning of autumn, the reformative process of state was at a stalemate and, in the midst of rising popular unrest, the new political term of 'constitution' spread rapidly in people's talk. The word did not have a clear meaning in the contemporary Tuscan vocabulary, but it soon became very common, because of its evocative appeal deriving from the great European political models. In this context, the government realized that it was prudent to avoid making more dangerous concessions by at last summoning the municipal conference to meet on January 25, 1848. This committee, composed of 21 members, for the most part appointed from among the municipal bigwigs, immediately set to work and during its sessions set down aseries of extremely

17 Bettino Ricasoli, Lettere e docmnenti, ed. by Aurelio Gotti/Marco Tabarrini, vol. I, Florence 1877, pp. 129 and fol.

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Antonio Chiavistelli / Luca Mannori

interesting proposals covering the reorganization of local government along more liberallines. So, at the end of January 1848, the government seemed to have accepted the necessity of reforming the municipal system as a first step towards state reorganization. The forced concession of a representative constitution by Ferdinand II, King of the Two Sicilies, gave the events a further boost in this direction. Compelled by the mob, on January 31, the Grand Duke Leopold convoked a small commis si on of five members entrusted with the task of changing the Reale Consulta di Stato into a body elected by the local councils. By this act, the Tuscan government resigned itself to choosing a consultative monarchy supported by the moderate party rather than a truly representative constitution so insistently sought after by an ever greater cross section of public opinion. In this perspective, January 31 offered the Tuscan notables their greatest chance of accomplishing their long-cherished Leopoldin project of introducing a form of representation fully respecting those local entities which had always been at the core of regional politicallife. As an influential member of the Tuscan moderate elite wrote in those days to Cesare Balbo, "we are going to have a representative framework of government with achain of powers which will begin with municipal counselors elected by the people and then move on up to provincial counselors and finally to a consultative body serving to deliberate upon questions of general interest". 11 This construction, based on several co-ordinated levels of representation, hails directly back to the new organization that had come into effect in Piedmont a few months before. 19 This analogy again stresses how widely the idea of the modernization of the state starting with the municipal units, was promulgated in Italy.

V. The Unexpected Advent of Representative Government: The "Fundamental Statute" ofFebruary 15, 1848 But it was fated that this gradualistic approach could not be pursued any longer. Once again compelled by external events, Tuscany ended up by adopting a different institutional solution. Indeed, on February 8, 1848, Charles Albert King of Sardinia promised his subjects the concession of "a complete system of representative government" and this act made it almost impos11 The letter (whose author is the scientist Carlo Matteucci, a personality near to Capponi and Galeotti) was published by Eugenio Passamonti, AlclUli documenti inediti su11a costituzione toscana deI 1848, in: Rassegna storica deI Risorgimento V, 1918, p. 675. 19 For a short description of this mlUlicipallaw, see Adriana Petracchi, Le origini dell'ordinamento comWlale e provineiale italiano, vol. I, Venice 1962, pp. 100-105.

The Tuscan Statute of 1848

19

sible for Leopold II to refuse to offer the same benefit to his people. Although against his will, he had to agree to the request for a constitution based on the French and Belgian models. As he proclaimed on February 11, "we are truly happy to provide our fatherland with that national representation which OUf studies were already aiming at".20 Therefore, February 11 is certainly a turning-point for the Tuscan political milieu, because it demonstrated that the Tuscan liberal movement was divided into two factions: a moderate one that was always looking backward towards the traditional municipal units as the most obvious basis for central representation, and a more advanced wing that openly opted for a modern national parliament direct1y elected by the people. An important test of this change is offered by a famous item published by the progressive Florentine newspaper "La Patria" on February 13. The columnist pointed out that "Tuscany has the right to a true political constitution, which is to say, that modern contract drawn up between a prince and his people [... ] guaranteed by a truly representative government". Moreover he stressed that, in his opinion, "the drawing-up of a constitution completely different from all the others of a monarchic nature [... ] is mere childishness", because Tuscany certainly was not possessed of "a political Galileo capable of finding a new balance of powers".21 The old concept of a constitution based on continuity with the past, therefore, gave way to the modern and contemporary notion of a fundamental charter containing concepts which would hold true anywhere and at anytime. Only five days later, the Grand Duke confirmed his promise by approving the final project for a constitution based on the c1assical French octroyee Charter of 1814. 22 According to this model, the Tuscan "Fundamental Statute", after a short dec1aration of individual rights, states in artic1e 17 that, "the legislative power will be cOllectively exercised by the Grand Duke and by two Houses" i.e. an elective General Council and a Senate appointed by the prince. Conversely, the executive power belongs to the Grand Duke alone (art.13), even ifthe ministers are dec1ared "responsible" towards parliament (art. 16), in that they can be impeached by the Council and judged by the Senate (art.62). So, for the first time, Tuscany ceased to be a patchwork of local communities and acquired adefinite institutional identity as a whole. Since the middle ages, it had been nothing more than a collage of jealous and disjointed municipal aristocracies - and exactly for that reason it had been condemned to be 20 Leggi e Bandi deI Granducato di Toscana dall' 1.1.48 a130.6.48, no. LVIII. 21 "La Patria", [Florence] 13 February 1848. About the activity ofthis newspaper,

Clementina Rotondi, 11 gioma1e fiorentino 'La Patria' (1847-1848), in: Rassegna storica toscana XVII, 1971, pp. 35 and fol. 22 See the text ofthe act in Le Assemblee deI Risorgimento. Toscana, vol. I, Roma 1911, pp. 6-13.

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Antonio Chiavistelli / Luca Mannori

ruled by an absolute monarch. Now it had suddenly got a chance to master itself as a compact national body. The age of the old liberties (Iocal and pluralistic) finally seemed to be setting, while the future was opening up to the new 'liberte des modernes '. Nevertheless, if the Liberal Party had at last decided upon a truly modern constitution, its choice was due more to the course of events than to the results of a well-pondered program. Its conversion was decided by the example of the other Italian states and even more so by the fear of a democratic offensive aiming at a republican solution or universal suffrage. Indeed, even if democrats were still rather weak in the country and devoid of adefinite program, the climate of institutional uncertainty, typical of late 1847, provided an ideal setting for their demagogie appeals. Therefore, both the Crown and liberal circles concurred in the necessity "of ending this revolution"23 by means of a constitution formally advanced, but actually arranged to represent only the traditional elite. The General Council was indeed elected by only 40,000 citizens enfranchised, selected on the basis oftheir income, which is to say by 2.2 % of the people, or a group not much larger than the landowner aristocracy entitled to sit in the local councils during the Restoration. In other words, the old ruling classes had agreed to change their appearance and become a modern civil society only in the wake of the menace of a general subversion of the political order. Certainly, this process was not peculiar to the Tuscan experience alone. For instance, a change of perspective, just as sudden, occurred in Piedmont for the same reasons and during the same weeks. In all the events, in Tuscany the effective transition from the old to the new regime was going to be more laborious and uncertain than elsewhere. In fact, the strong municipal tradition, typical of the country, made it especially difficult for the local elite to quickly develop a common feeling of belonging and an effective common action. On the other hand, the Crown's support of the constitutional experiment was undoubtedly weaker than in Piedmont, because Leopold could not forget that he was, above all, an Austrian archduke, whose throne was upheld far more by the Habsburgian army than by any internal party or system of government. Therefore, right from the beginning, the defensive alliance between the Prince and the liberals against the danger of a revolutionary drift looked rather frail, and it soon became evident that the fate of the constitution would essentially depend on the moderates' ability to run the state. The only way to avoid an absolutist restoration was to secure a quick return to political stability by the resolute and authoritative exercise of the new constitutional powers. But un23 This expression is again taken from the correspondence of Matteucci, quoted in Passamonti, Aleuni documenti, p. 675.

The Tuscan Statute of 1848

21

fortunately, only a few among the Tuscan politicians of the period had a clear idea of how to manage a constitution.

VI. Which Frame of Government for Constitutional Tuscany? Together with the French charters of 1814 and 1830, the Tuscan Statute was a rather laconic and ambiguous document, largely leaving the COncrete definition of the framework of government to constitutional procedures. Of course, many gaps in the text could be easily filled by reference to the French and British parliamentary practice. In the middle of the 19th century, for instance, it had become sufficiently clear to everybody that, in a constitutional monarchy, no cabinet could retain power without the support of a majority in the elective House, although the fundamental charter did not provide for any obligatory vote of confidence. And it was equally obvious that the prerogative powers, including the dissolution of the chamber of deputies or the royal assent to the parliamentary bills, had to be exercised by the monarch only with the consent of his ministers as a consequence of their legal responsibility. Even if fully inexperienced in constitutional matters, Tuscan notables were obviously familiar with these elementary rules, as the press of the period largely shows. But this was not enough to manage a constitution. The main question they had to solve was: what sort of state was going to arise from the new charter? And here, by simplifying the confines of a political map surely far more complex and still largely unexplored, we can point out three basic answers emerging from the 1848 debate. The first was typical of the most moderate and cautious wing of the liberal movement, probably embracing the majority ofthe progressive milieu. For this area, which lacked adefinite constitutional doctrine, the statute provided for a simple arrangement based On the old paternalistic state. Its only purpose was to set up an institutional connection between the monarch and public opinion, without giving rise to any radical upset in government behavior. A good example of this attitude is offered by Gino Capponi, One of the most illustrious personalities of the period, who had been a member of the commission entrusted with drafting the Statute and who was to become prime minister the following summer. Both in his correspondence and in his memoirs he clearly makes us understand how tepid his liking for the constitution was, which he had been compelled to prepare ("big machinery for a small State"24) and how

24 Gino Capponi, Scritti editi ed inediti, ed. by Marco Tabarrini, 2 vols., Florence 1877, I, p. 495. About Capponi's thought, see Gino Capponi, Storia e progresso nell'Italia dell'Ottocento, ed. by Paolo Bagnoli, Florence 1994; and always useful is

22

Antonio Chiavistelli / Luca Mannori

much better a municipally-based representation would have been. "If we had had more time, that is if we had been able to organize the municipalities and provinces in the proper manner" - he confided to Cesare Balbo a few days after February 15 - "I would have liked to have worked on the authentie mainsprings of the country, so that the political constituencies would be in every way suitably connected with the municipal and provincial ones. This would have been more authentie, more genuine, more solid, and it was precisely in view of these ends that we were reforming the municipalities and the provinces, so that from these elements national representation would arise".2' Of a very similar nature were the innermost feelings of Cosimo Ridolfi, the Tuscan prime minister from September '47 to July '48. Ridolfi was a sort of enlightened conservative, who, before February 1848, had been openly reluctant to accept "a constitution in the French style, with the two chambers and other such things". Such a framework of government - he remarks in a private pre-' 48 note - "I) violates the principles of sovereignty; 2) is repugnant to our nature and traditions; 3) is a falsity in itself; 4) has no future, because the future belongs to the other way already experienced [that is, to the consultative monarchy]".26 In the view of these men, parliament was probably perceived as nothing more than a sort of appendix of the traditional apparatus, whose fulcrum was still represented by the Grand Duke's cabinet. And if the chambers' job was essentially limited to representing the variety of people's needs, the government' s was to go on with its traditional case-by-case ruling method, typical of the pre-modern concept of politics.

A fully different reading of the Statute was offered by the so-called 'democrats', which is to say by the radical fringe of the 'patriot party', more or less linked to the Mazzini movement, with its center of gravity in the restless city of Leghorn?7 Without masking their dislike for constitutional monarchy as a framework of government, the democrats declared themselves prepared to accept it only as an intermediate passage towards a republic. Their mistrust of the classic balance of power was explicit. Politicallife under a monarchie conGiovanni Gentile, Gino Capponi e la cultura toscana nel secol0 decimonono, 3Id ed., Florence 1942. H The letter is dated February 20 and it is reprinted by Passamonti, AlcWli documenti, p. 683. 26 The quotation is from a text published in RajJaele Cempini, Contributo aHa storia dei 1848 in Toscana, con lettere e documenti inediti, in: Ettore Rota (ed.), 11 1848 neHa storia italiana ed europea, Milan 1948, p. 797; the document is probably a rough draft of a letter sent to Montanelli, Salvagnoli or Ricasoli in September 1847, when Ridolfi was going to become minister with the reformers' support. 27 For a general description ofthe political attitudes in this region it is always useful to consult Carla Ronchi, I democratici e la rivoluzione fiorentina dei 1848-49, Florence 1962.

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stitution, as stressed by their most influential leader, Francesco Domenico Guerrazzi, was nothing more than a perpetual "dull and wild struggle [... ] in the dark" between the two opposite principles of despotism and democracy.21 Moreover, the Tuscan parliament represented only a ridiculous portion of the people, so that, in the democrats' perspective, it had no chance of taking on the effective leadership of the country. Therefore, the democratic press considered the government as the only 'efficient part' of the constitution, and urged it to answer direcdy to the people for its conduct. Nevertheless, none of the democratic leaders was an authentie subversive and most of them feared "revolutionary barbarity"29 as much as their moderate adversaries. So, apart from public declamations, the monarchie option stood as a fundamental point of reference for them, too. What they seemed to suggest, in their often confused institutional proposals, was a sort of popular monarchy in which the Grand Duke would have set up his government more in accordance with the true feelings of the people than by following the tendencies of a nonrepresentative parliament. In short, even if the democrats' interpretation was antithetic to the right-wing moderates, its institutional outcome was similar. For opposite reasons, neither Capponi nor Guerrazzi believed the parliament capable of changing the management of the state's machinery. Both thought the government would have gone on being a basically autonomous entity; and neither of them conceived the constitutional monarchy as being founded upon the classieal parliament-cabinet axis. The unique attempt to build a fully new form of state on the Statute' s foundations was made by a group of advanced liberals, gathered around the news sheet "La Patria" and led by a 'triumvirate' composed of Salvagnoli, Ricasoli and Lambruschini. After their decisive campaign for the constitution in Febru21 "Il Corriere livornese", [Leghorn] 4 April 1848. "Actually - the author explainsthe constitutional govemment includes a congeries of monarchic, aristocratic and democratic principles. Now, the fIrst and the last, owing to their nature, respectively encroach and preserve. But how can we balance these principles in such a way that each ofthem is equally vital and incisive? Most ofthe time is consumed in their trying to contradict and surpass each other." About Guerrazzi's political thought, see Nicola Badaloni, 11 pensiero politico di F. D. Guerrazzi, in: F. D. Guerrazzi nella storia politica e culturale deI Risorgimento, ed. by the Provincial council of Florence, Florence 1975, pp. 67 and fol.; on the activity ofthe newspaper ofLeghorn, see Laum Castelfranchi, '11 Corriere livornese' (1847-49), in: Bollettino storico livornese, 11, 1938, pp. 46-68. 29 The expression is from a letter of the democratic leader Giuseppe Montanelli to Gino Capponi, dated December 6, 1847 (Lettere di G.Capponi e di altri a lui, ed. by Alessandro Carraresi, vol. 11, Florence 1883, p. 364). On Montanelli's political evolution between 1847 and 1848, see Andrea Moroni, 11 neoguelftsmo di Montanelli dai 'bullettini clandestini' all"Italia', in: Bollettino storico pisano LVIII, 1989, pp. 131 and fol.; and, more generally, Paolo Bagnoli, Democrazia e Stato nel pensiero politico di G. Montanelli, Florence 1989.

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ary, this group strongly supported an application of the text based on the active supremacy of parliament over any other state power. If the purpose was "to enter into the Italian bourgeoisie and to leave this Florentine misery behind"as Salvagnoli wrote to Balbo a few days after the granting of the charter - the elective assembly had to become something completely different from "that sort of consultative municipal council"3O prefigured by Capponi, Galeotti, Ridolfi and their ilk. As a general representation of the country, it had to seek out the guidelines for the State's policies and to express a government which put them into practice. It was the program of a mature nineteenth century elite, which reveals many similarities to the institutional policy followed by Cavour' s party in Piedmont during the same period. But, while the Tuscan moderates and democrats had their chance to test their interpretation of the charter, such an opportunity was not offered to Ricasoli and his friends, in spite of their recognized prestige and influence.

VII. The Statute put to the test. The legislative-executive relationship until July 31, 1848 The short life of the Tuscan constitutional monarchy is traditionally divided into three phases. The first, which covers the period between the granting of the charter and the fall of Ridolfi at the end of July, marks the beginning of the crisis in the moderate faction. During these months the political scene underwent a radical change, as a consequence both of the birth of anational consciousness in Italy and of the crisis in the European balance of power. The insurrection in Milan, the outbreak of the war between Austria and Piedmont and the resultant necessity, on the part of the other Italian monarchs, to support the King of Sardinia in his military and diplomatie efforts, put the Grand Duke's government into a position hitherto never experienced. For the first time after more than a century, Tuscany, suddenly freed from Austrian tutelage, had to face the unknown problems of a 'true' state, such as the choice of its alliances, the immediate organization of an army, and the procurement of the financial and moral resources required to carry on such activities. 31 These new responsibilities would have been a difficult test for any administration, but Ridolfi and his colleagues were certainly not the best equipped for the task. As he himself privately adThe quotation is again from Passamonti, Aleuni documenti, p. 678. For a general view ofthe political events, the main reference is always Coppini, Il Granducato di Toscana, pp. 345-395. But see also Cesare Spellanzon, Storia deI Risorgimento e dell'Unita d'Italia, vol. V, Milan 1950, pp. 3-42, 853-904; and vol. VII, Milan 1960, pp. 3-212. 30

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mitted, "revolutionary ministers are required [to prepare Tuscany for war] and not people as polite as 1 think we are". 32 Anyway the cabinet, born in the preconstitutional era and notoriously composed of honest reformers rather than forceful statesmen, had an appearance of weakness which stirred up the press against it. Moreover, Ridolfi spent four months in summoning the chambers, making it appear as if he feared them; and even if this is probably false, it is surely true that his ministers did not conceive of themselves as being the executive arm of a sovereign parliament. It is worthwhile to recall that throughout the Restoration there had been no real cabinet in Tuscany, but only a number of granducal secretaries deprived of any collegial unity, whose meetings were generally chaired by their master. 33 Ridolfi made the government more autonomous from the Grand Duke, but still continued to envisage it as a committee of Crown counselors. And he offered reliable evidence of this when the cabinet did not resign at the time of the first chamber meeting on June 26. The elections, it is true, had given the moderates a quasi-unanimity in the General Council, so the government could be sure of parliamentary support. But by his behavior, Ridolfi showed that the permanence in his office depended more on the monarch's commission than on the representatives' confidence. It was not a good start, and many observers did not miss a chance to notice it. 34 Above all, at the opening of parliament the government was clearly lacking in any complete political program (the Crown's speech read by Leopold inaugurating the session was "a mere vacuity"3~) and the only two bills the cabinet was able to submit after so many months were concerned with some ridiculous local customs affairs. "How can we bear" - "La Patria" accused - "that the cabinet, at such a dramatic moment and at the first meeting of the Houses, renounce any initiative and tell itself, 'here they are, the representatives of the country. Let them do the best they can. 1 will be pleased to say yes or no to their pro-

32 Ridolfi to Vieusseux, May 4, 1848, Cosimo RidolfilGian Pietro Vieusseux, Carteggio, vol. m (1846-1863), ed. by Marco Pignotti, Florence 1996, p. 146. 33 An exhaustive description of this organization is offered by the Granducal Minister Giovanni Baldasseroni, who led the department offmances before and after 1848: Giovanni Baldasseroni, Leopoldo TI Granduca di Toscana e i suoi tempi, Bologna 1871, pp. 54 and fol. 34 Among them, for instance, there was Guerrazzi. lf the ministers do not resign he stressed - they will be compelled to artificially create their own majority in the Chambers and, when they succeed, "they will irnagine themselves to be managing the majority in the cOlmtry; arrogant and inept, they will ride with little prudence a too fiery horse and we will see them brutally tossed from the saddle" ("Corriere livornese", 27 June 1848). 3' Thus did Ricasoli defme it (Cosimo Ceccuti, Ricasoli fra 1847 e 1849. Idee e programmi politici dalla mancata presidenza al ritomo deI Granduca, in: Giovanni Spadolini (ed.), Ricasoli e il suo tempo, Florence 1981, p. 316).

3 Dippel

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posals'?,,36 Left to its own devices, the parliament ran the risk of collapsing for lack of direction. So, right from the beginning, the constitutional experiment looked less threatened by its internal conflicts than by typical Tuscan governmental vices, namely sluggishness and apathy. A vigorous reply to this stalemate came from Vincenzo Salvagnoli who, having been elected to the General Council, was entrusted by the assembly to draft the parliament's official answer to the Crown's speech. In this document, Salvagnoli practically set up the government program which the ministry had not been up to producing. His purpose was to constrain the cabinet' s action through an array of precise directions both in foreign and horne matters, ranging from arevision of codes and municipalities to the conduct of war, from the structure of the Italian federation to the re-establishment of state finances. 37 Approved by the council after a long discussion, the act was to mark a new starting point for constitutional Tuscany. ''The council voted for the address" - wrote Salvagnoli in his newspaper - "and with it the system. Today parliamentary life has begun. Today [... ] the State management has become a well-reasoned application of political principles; from an arbitrary or traditional routine it has been converted into the practical implementation of a comprehensive plan [... ]. We have emerged from a vicious bureaucratic circ1e to set out on the road towards progress. Now this government is necessary because the assembly called it into being. ,,31 In this view, the approval of the address replaced the parliamentary confidence that the cabinet had failed to ask for. The ministers themselves were virtually changed into a truly modern cabinet, entrusted with applying the policies proclaimed by the assembly. But actually things went differently. The government went on with its inaction and also the parliament (universally blamed for "wasting a huge amount of time" in useless discussions 39 ) did not keep up with Salvagnoli's expectations. What' s more, the international situation certainly did not help in supporting such a delicate constitutional evolution. On July 25, the Piedmontese army was defeated at Custoza, and this dramatic event decided the fate of Ridolfi, by far the leader most accused of not doing enough for the common national cause. It is nevertheless remarkable that the fall of the first Tuscan constitutional cabinet was not determined by an explicit parliamentarian verdict. It is indeed true that the representatives questioned the government about 36 "La Patria", 14 July 1848.

Le Assemblee deI Risorgimento. Toscana, vol. I, pp. 95 and fol. (12 JuIy 1848). "La Patria", 20 July 1848. 39 The judgement comes from the Grand Duke himself (Il govemo di famiglia in Toscana. Le memorie deI Granduca Leopoldo II di Lorena. 1824-1859, ed. by Franz Pesendorfer, Florence 1987, p. 346) but was largely shared by the press. 37

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its military conduct and openly criticized its behavior,40 but they did not reach the point of asking for its resignation. The cabinet handed in its resignation to the Grand Duke only on July 31, because of a modest democratic demonstration, and the Houses learned of its decision only by means of a scanty bulletin, not followed up by any debate. So, the ministry was born and died as a Grand Duke's government, even if adelegation of representatives, led by the president of the General Council, went to Leopold and probably manifested in his presence its perplexity about the future ofthe cabinet. 41 The way to an effective parliamentary system had just begun.

VIU. The Cabinet and the Parliament from August 1848 to February 1849 On July 31, the project of the moderates seemed to have fully shown its failure. Nevertheless, an attempt to form a more progressive Ricasoli ministry did not succeed either. So, on August 17, Leopold appointed a cabinet led by Gino Capponi, who c1early would have followed in Ridolfi's footsteps and whose notorious prudence and pacifism were appreciated by the Grand Duke. It is worthwhile to stress that both Houses contributed little towards solving tbis first ministerial crisis. If they implicitly refused Ricasoli (whose strong and imperious character was not weil accepted by many of their members), they did not propose any other candidate. So, when Leopold formally asked both the presidents of the Council and the Senate for a suggestion, they refused to give any advice. 42 This episode stresses again how the other side of the government' s apathy was parliament' s political weakness, due to the lack of any party organization and to the essentially local interests of many deputies. So, the very large majority that the cabinet once again seemed to find in the Houses did not make it proportionally stronger. The Parliament had accepted the new government whose moderation certainly suited its own feelings, but its real capacity to support and defend it was at least doubtful.

As a matter offact, things went from bad to worse with Capponi. 43 His unwarlike and uncertain diplomacy dissatisfied many. The democrats harshly blamed hirn for his indifference to the national cause. The deficit, created by the unusual military expenses, became more and more unbearable. And, above 40 Le Assemblee deI Risorgimento. Toscana, vol. I, pp. 347 and fol. (29 Ju1y 1848). 41 11 govemo di famig1ia, p. 347.

42Ibid., p. 349. 43 The best account ofthis cabinet's 1ife is still to be found in Eugenio Passamonti, 11 ministero Capponi ed i1 tramonto del 1iberalismo toscano ne1 1848, in: Rassegna storica deI Risorgimento VI, 1919, pp. 59-113 and 235-314. 3*

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all, Leghorn, the second city in Tuscany, having long lost patience with its subordination to Florence, openly revolted against the central government and challenged the cabinet' s capacity to preserve the unity of the country. During this dramatic occurrence, the Houses did not refuse the exceptional powers which the ministry asked for,44 but neither did they show any strong willingness to defend it against its enemies. And when Capponi demanded that the General Council limit the freedom of association in order to put the democratic circles under his contral, the chamber hesitated and opened a long discussion about the lawful bounds of this constitutional right. 4' This parliamentary defeat was scarcely relevant in itself, but it was probably the straw that broke the camel' s back. Unable to contral Leghorn for many weeks and ever more incapable of keeping order in the rest of the country, the ministry resigned on Dctober 12. In a message to parliament announcing his decision, Capponi stressed that he had never lost the confidence of his majority, that he was proud of it and that he was resigning only to prevent the popular riots that had broken out everywhere against him from endangering the Statute. 46 In substance, he declared to give up his position in order to save the constitution. A statement which is probably true, but at the same time very portentous. Indeed, it meant that in Tuscany, parliament' s consent was not sufficient to rule the country and that the survival of governments essentially depended on extra-institutional forces. The press unanimously agreed that the cabinet crisis had a pathological nature. Whereas in every well-oriented constitutional system - it observed "the ministries never fall unless opposed by a parliamentary majority", the Tuscan experience offered now "the second example of a cabinet relinquishing its power without succumbing via a legislative vote".47 Nevertheless, a double interpretation was possible. For the liberal and moderate columnists this painful situation proved that in Tuscany "some dissenting and audacious mi-

44 Le Assemblee deI Risorgimento. Toscana, vol. I, p. 656 (28 August 1848).

4' lbid., vol. II, , p.

203 (10 October 1848). The guarantee ofthe freedom of association was a novelty in the Grand Duchy and the notables, who were comprehensibly proud oftheir fresh conquest, feared, among other things, that any restriction against it might endanger their own position, ifthe govemment were to fall into the hands ofthe democrats. 46 Le Assemblee deI Risorgimento. Toscana, vol. II, pp. 217 and fol. (14 October 1848). 47 "Il Conciliatore", [Florence] 13 October 1848. This moderate newspaper represented above all the ideas of Gino Capponi and his milieu: Alessandro Galante Garrone/Franco Della Peruta, La stampa italiana deI Risorgimento, in: Valerio Castronovo/Nicola Tranfaglia (eds.), Storia della stampa italiana, vol. II, Roma-Bari 1979, pp. 393-394.

The Tusean Statute of 1848

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norities were dictating the law to passive and inert majorities";48 while in the democrats' opinion, if a cabinet still supported by its parliament was compelled to resign all the same, that parliament was certainly not representative of the country ("if the two cabinets [Ridolfi's and Capponi's] were not obstructed by the majority of the people, why did they fall? [... ] When the opposition does not show up in the Houses, it shows up in the squares"49). In practice, the democrats' reading prevailed. Indeed, the Grand Duke refused to offer a second opportunity to Ricasoli and preferred to form a democratic cabinet led by the popular leader Giuseppe Montanelli, with the hope that he had more of a chance to regain control over the people and restore order in the country. By making this choice, Leopold practically accepted the thesis that public opinion was not being adequately represented in parliament and implicitly gave his assent to dissolve the General Council. This dissolution was punctually decreed with immediate effect on November 3, just a week after the appointment of the new cabinet. Once again Tuscan newspapers agreed with the analysis of the facts but differed about their interpretation. Everyone acknowledged that "the act was necessary so as to ascertain whether the cabinet had been supported by a factious minority or by a thinking majority".~o Even the most conservative admitted that it would have been "an absurdity to blame the cabinet for its conduct" because "the new ministers would not be able to rule either, being confronted by such a numerous and recalcitrant opposition".~l So, the new elections were going to be "an appeal to the country, which will show where the consensus and the will of the majority lie". ~2 But it is also true that the dissolution of November 3 had been very sudden, not having been preceded by any parliamen48 "Il Coneiliatore", 13 Oetober 1848. The same opinion was shared by many other observers. For instanee, a French diplomat remarked on October 15: "Le ministere Gino Capponi vient de donner sa demission. Soutenu par le Gran-Duc, appuye par les Chambres, il s'est retire devant quelques manifestations populaires. C'est le second exemple de 1a retraite d'un ministere dans des circonstances identiques, et une preuve de plus que, dans ee pays, 1e regime constitutionnel n'existe que de nom; 1e mouvement est en dehors et au dehl de l'autorite legale, teIle que le pacte fondamentall'a etablie" (Le relazioni diplomatiche fra la Francia e i1 Granducato di Toscana - rn serie: 1848-1860, ed. by Armando Saitta, vol. I, Rome 1959, p. 104). 49 "Il Popolano", [Florence] 14 October 1848. About the activity ofthis newspaper and the policy of its editor in chief, see Gioiella Cappelli, Un giomalista toscano dell'Ottoeento. Enrico Montazio e '11 Popolano', in: Rassegna storiea toseana XXII, 1981, pp. 35-71. ~o "L'Alba", [Florence] 4 November 1848. As for this newspaper see Giovanni Marrone, 'L' Alba' di G. La Farina, in: Clio XIV, 1978, pp. 215-260. ~l "11 Conciliatore", 4 November 1848. ~2 Ibid.

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tary debate or public announcement. Moreover, it was immediately folIowed by some threatening acts, like the affixing of seals to some ministries. Besides, the general dimate of the country was very strained - let us only recall that "La Patria" had to cease publishing on November 30 on the orders of Guerrazzi, now Minister of Horne Affairs. Therefore, the liberals spoke about a sort of "coup d'Etat" against parliament,~3 whereas the democrats greeted the end of the first Tuscan legislature as the beginning of a new era of liberty. ~ But the chances of a radical change in parliamentary life were in alI events rather slim. Indeed the elections of November took place under the law then in force and so produced achamber politicalIy not very different from the previous one. In the abstract, the ministry could have tried to enlarge the political franchise before dissolving the Council by means of a new electoral law. Such a step, which would have alIowed the democrats to face the elections from a more advantageous position, was, perhaps, not to be fulIy preduded. In truth, although the Council in charge was obviously not anxious to grant the vote to everybody, even the most moderate of its deputies had recognized that the Tuscan franchise was far too narrow. But the dash between democrats and liberals had reached such a point that the cabinet' s only thought was to free itself from the hated parliament still instalIed. Moreover, Montanelli and his friends were al ready looking beyond the Tuscan boundaries, towards that national constituent assembly, elected by the people at large, which the ministry had proposed in its program as a basis for the future unification of the country. ~~ However, from the polIs a still rather moderate Council was formed, half of whose members were the same as before. The parliamentary situation did not appear easy to manage for the democrats, and the cabinet revealed its embarrassment by delaying the convocation of the Houses until January 10, 1849. The only element that prevented the institutional system from coming to a complete deadlock was the lack of any practical alternative to the democratic ministry. ~6 Even the liberal press recognized, far before the first session of

~3 An opinion expressed by "La Rivista indipendente" [Florence], 13 November 1848, which, moreover, remarks that the dissolution "is not justified by any motive that can even remotely suggest that the interests ofthe country are invo1ved". ~ See again "Il Popolano" e "Il COITiere livomese", both dated 4 November 1848. ,~ Regarding this fundamental item of a democratic program, see Emilia Morelli, "Montanelli e la costituente" and Piero Biscaretti Di Ruffia, Giuseppe Montane11i costituzionalista, in: Giuseppe Montanelli. Unita e democrazia nel Risorgimento, ed. by Paolo Bagnoli, Florence 1990, pp. 57-63, 115-l27. ~6 F or an analysis of the parliamentary struggle in this phase see Cosimo Ceccuti, Montanelli a11' Assemblea toscana. Dal Consiglio generale alla costituente, in: Bagnoli (ed.), Giuseppe Montanelli. Unita e democrazia, pp. 177 and fol.

The Tuscan Statute of 1848

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parliament, that a "systematic opposition" against the government was not expedient. lf parliamentary mIes were ingrained in us and political factions accepted the vote ofthe assembly's majority, an opposition proposing to provoke the fall ofthe cabinet could be justified. But the constitutional idea is still too new among us, it is not perceived in the right way by the people, and the vote of a parliamentary majority has very little influence outside of the assembly. lf the cabinet were defeated in parliament, wou1d it be defeated everywhere? Peop1e do not understand the meaning of a representative system, and the parties take advantage of this lack of insight to create an opposition growing outside the 1awand against the law. ~7

At the opening of the Houses the democrats tried to hold parliament at bay by using every possible means. They fi1led the public galleries of the General Council with a crowd of their partisans, whose continual claps, cries and interruptions frightened the moderate deputies. They also gave great prominence to the petitions proposed by the so-called 'political circles', which were nothing other than spontaneously formed local clubs, envisaged by the democratic leaders as the most authentie trustees of the popular will. And, above all, they did not fail to keep the opposition under the perpetual menace of a cabinet crisis, which would have had the effect of rousing a general revolt against it. In this way, the cabinet managed to obtain the approval of the most important measures in its program, such as an enforced currency, restrictions against commercial freedom and especially a bill for the election of Tuscan representatives to the constituent national assembly. By approving this last statute,~8 the Council agreed to empower the deputies appointed by the people to freely choose the future form of government for the Italian nation, without any restrictions or limits. And this meant an admission to both the substantial dissolution of Tuscany as an autonomous state and the end of its reigning dynasty. It was really too much for the Grand Duke who, as soon as he learned that the Senate itself was going to approve the act, decided to leave the country on February 8 and to join the Pope in Gaeta. In Florence, a provisional government was proclaimed, but it lasted only a litde more than two months and was swept away by the final Piedmontese defeat at Novara. On April 12 the municipal council of Florence recalled Leopold to his throne. The statutory experience was finished. The Statute was to remain in force for another three years, and it was revoked only on May 6, 1852. But its effective life was definitively at an end because the chambers were no longer convoked after the restoration of the Lorraine dynasty.

~7 "B Conciliatore", 29 November 1848. ~8 For the long debate on this act, see again Le Assemblee deI Risorgimento. To-

scana, vo1. II, pp. 516 and fo1.

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IX. Conclusion The constitution of '48 offered Tuscany the chance to definitively set aside its late-medieval form of State and to attain the level of so-called 'political modernity'. Before 1848, the country still conserved the old appearance of a 'societas universitatum '. Fundamentally, it was a collection of particular bodies and, as a consequence, central power had no other task but to balance the single cells' interests and to ensure the fatherly supervision of their internal administration. This practice of government, basically reflecting a long, deeply ingrained Renaissance pattern, was brought to perfection during the Restoration, when the rulers could employ the new administrative tools offered by the Napoleonic experience. But it was precisely this development into a highly efficient bureaucratic state that broke the pluricentennial compromise between the local elites and their sovereign. State interference into local life became more and more systematic, pervasive and continuous, and the urban aristocracies began to feel seriously hurt by their complete subordination to a dass of obscure bureaucrats. As a result, they first proposed arevision of the traditional municipally-based state; then, having verified the effective impracticability of this proposal, they decided to try out the entirely new solution of a representative government. This choice disc10sed the horizons of an unknown though exciting kind of liberty, but it also imposed a radical redefinition of institutional framework. On the one hand, Tuscan society was now called upon to see itself as an unified body and to express its common will by means of a parliament. On the other hand, the state, too, had to change its nature. From a mere point of reference serving to balance a multitude of 'corps intermediaires " it was obliged to become the executive machinery of a sovereign people. To win the bet, it was essential that the Tuscan parliament immediately gain a decisive place on the political scene; but, it was precisely this goal that was completely missed. During their few months of activity, the chambers showed a lack of initiative which produced a heavy loss of confidence in their representative capacity. Except for a few episodes, they limited themselves to giving their assent to government proposals, without displaying any propensity for autonomous leadership. Even if only a specific study on this point can provide true enlightenment, it can be safely argued that the deputies did not really feel that they represented the people as a whole. The on-going habit of delegating such a responsibility to the central government made them scarcely able to form and express a general political policy. And the General Council ended up by acting as a sort of old-regime parliament, whose greatest concern was to keep watch on the government rather than lead it. In its very essence, it came out as an institution not far from mirroring the consultative assembly conjecturedin 1847.

The Tuscan Statute of 1848

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Correlatively, the key institution of the system was bound to continue to be the government, but a government still conceived as a seIf-sufficient body, not connected with the Houses. So, constitutional life immediately became a struggle for the conquest of the cabinet, which was conducted far more in the streets than in the parliamentary arena. But, control of the government proved to be only an illusion of power. Indeed, the Tuscan executive apparatus was basically planned to oversee Iocal administrations, and not to direct1y manage life in the country. The weakness of the army, the absence of any organized police corps (the only one existing before 1847 had been dissolved in that year because of its unpopularity), the scantiness of public finances and the absolute inadequacy of the other state departments to provide general services, made the government quite unable, not only to carry on the policies of a modern state, but to even defend itself against its adversaries. Without strong parliamentary support the cabinet was fated to be ruied over by events, as was the case even with the democratic cabinet, which was dragged into exercising ever greater demagogie policies by a unsubmissive popular base. To sum up, both parliament and government failed in their task. This failure can be largely ascribed to an external context certainly not propitious in the development of orderly parliamentary life. But we cannot omit stressing the ruling classes' inaptitude at assuming the new roles imposed by the constitutional government. Therefore, the Tuscan Quarantotto efficaciously shows how much difficult the conversion of the old institutional framework into that of modern state would have been in Italy.

Tbe First Hungarian Civil Constitution (1848) Organization of Executive and Legislative Power By Janos Zlinszky

I. After the period of the enlightened absolute monarchy of Joseph II, between 1790 and 1792 Leopold II restored the traditional feudal constitution in Hungary within the Habsburg Monarchy. The sovereign had himself crowned. He swore by the coronation oath to defend the Hungarian constitution and the freedoms and rights of the nation. The Parliament formed committees to reform the constitution, which had evolved slowly over the centuries. One of these committees prepared the reform of the political structure; another was set up to investigate so-called common affairs with Austria, such as taxes and finance; a third looked at agricultural issues, which incIuded landowners' rights and serfs' obligations. Separate committees were established for the development of trade and industry; for mining and minting as weIl as for the judiciary. The committee for education studied the provision of public education; and the committee for religion dealt with extending religious freedoms. Finally, there also was a committee to investigate complaints in the field of administrative issues. 1 The essential importance of all these initiatives was that in 1790 the independence of Hungary was newly decIared, and thereby the authority to decide a series of questions which until then had resided within the enlightened gov-

1 Corpus Iuris Hungarici seu Decretum Generale Inclyti Regni Hungariae Partiwnque Eidern Annexarwn, 2 vols., Buda 1822, vol. 2, pp. 215-219 (1790/91, Art. 67). (The Hungarian Parliarnent did not have regular sessions every year until the constitutional reforrns of 1848. Therefore each session ofthe Hungarian Parliarnent passed one "Law" at the end of its proceedings, and sent it to the King for royal assent. The custornary way to quote these Laws is to give the year(s) of the respective session followed by the nwnber(s) of Article(s). Frorn 1848 onwards the custorn, and with it the way ofquoting, changes.)

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Janos Zlinszky

ernment of the absolute sovereign in Vienna was drawn back into the domain of the legislative powers of Parliament. With this, the king opened up national constitutional development but at the same time gave it entirely into the hands of the traditional Estates Parliament. Those represented in the Hungarian Parliament were at this stage very far from the idea of paving the way for constitutional development in the direction of civil society. This notion, in fact, was rather to be expected of the king. Some statements of Leopold II dearly referred to this; however, at the end of the day, Parliament itself only enacted two orders, one of which was Joseph II' s order on religious tolerance 2 and the order easing the burdens on the peasants. 3 The committees gave detailed suggestions for other reforms; however, these were shelved because of the uneasiness brought on by the events of the French Revolution and by overestimating the importance of the subsequent Hungarian revolutionary movement. The recommendations of these sa-called "regnicolar committees" that would affect the constitution were the following: a) improving the representative character ofParliament. In the upper house, they proposed to invite wealthy citizens irrespective of their rank inside or outside the gentry dass; on the other hand, they suggested limiting the traditional rights of any individual member of the aristocracy to attend and they only wanted to invite those nobles who were national dignitaries and royal bailiffs. In the lower house, they wanted to draw together the representatives of smaller counties (which subsequently occurred). At the same time, they suggested that larger counties send four delegates, smaller ones three or two depending on the proportion of the electorate. In place of a single delegate representing all the towns, it was proposed that each royal town send adelegate of its own. Non-royal towns were to receive a better representation at the county level. b) It was suggested that the affairs of orphans, the protection of unmarried mothers, public health issues (i. e. the right of the poor for free medical services), statistics (census), the assimilation of the Roma and the regulation of conditions of service and wages (employment relations) should be in the damain of the counties. In addition, the counties retained their right to challenge unlawful mIes passed by the central administration. Thus, in fact, the scope of local administration would have had a quite modern regulation. The suggested draft reform was consistent when talking about the expenses of county meetings and meetings of Parliament. This burden was to be taken up by the gentry, who otherwise remained untaxed. 2Ibid., 1790/91, Art. 26. llbid., 1790/91, Art. 36.

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c) With respect to the common issues with Austria, i. e. the army and financia1 issues, and also in customs and trade, the suggestions were based on the principle of mutuality (according to the principles of international law) and, on the other hand, on a contractual basis. The contracts were to be concluded by bilateral committees made up of delegates of the two countries, Hungarian Parliament and Austrian Länder delegates (this suggestion, in fact, was put into practice in 1867 for the common issues). d) It was the committee for agricultural affairs that was the least able to cross the bounds of the traditional constitution. They did not change the system of the workload of peasants nor the system of landlord' s rights. They only took the issue of settling peasants' conditions away from the counties where it had belonged since 1608. The new parliamentary authority, as opposed to the governmental rights of the king and his representatives, only gave a virtual improvement in this area. 4 The drafts would in fact have made the possibilities of free movement and redemption more difficult for the peasants. It would have made it even more difficuIt for them to pass on their land rights in perpetuity and it was planned to introduce the so-called "one-twentieth part" canon if the land was passed on to the landlord (even though the landlord was not the legal owner of the gentry land). The committees were against redemption because they feit it would infringe the rights of subsequent noble generations. In fact, they held themselves to the regulations of the Law of 1741, Art. 8 about the tax exemptions of the nobility and Law of 1715, Art. 8 about military duties of peasants. These laws required that the land of the peasants should be enough to pay the obligations to the landlord and sufficient to supply the peasant family; therefore, they forbade the trading and partitioning of the land. Finally, they did not change the institution of the local gentry courts, either. e) In the field of free trade and free industrial enterprise, the suggestions went as far as to propose that the nobility should be allowed to incur bills of exchange. These modern ideas only became a reality 50 years later. For the time being, the system did not leave a choice between peasant life and life as a free laborer. However, based on such modern ideas, the economic steps of the Reform Age were given a start and it is not by chance that SzechenyP would later develop these further.

4 BaUnt Homan/Gyula Szekju, Magyar törtenet [Hlll1garian History], 8 vo1s., ed. by Kir. Magyar Egyetemi Nyomda, Budapest 1928-34, vol. VI, p. 392. ~ Count Istvan Szechenyi (1791-1860) was the most important initiator ofthe cu1tura1, economic and politica1 reform movement in Hungary. He argued that lasting politica1 reforms must be based on, and are therefore subsequent to the establishment of, a strong, modem economy in Hungary.

38

Janos Zlinszky

t) The respective draft wanted to make the provision of public education the duty of the state so that, up to a certain level, it would have to be made free and general.

g) In the domain of public administration, the suggestions emphasized the role of the Hungarian govemment office among the central court organizations in Vienna, maintaining that it had to be composed of Hungarians and that it should directly report to the king. All these suggestions did not really touch upon the particular rights of the nobility. They secured the shared legislative powers of king and nobility and the separate executive power between the center and the local level. They did not touch the single and indivisible nature of the Habsburg monarchy along with the principles ofthe Pragmatica Sanctio.

ll. For the small groups of those who hoped to achieve complete national independence or a radical change to a bourgeois orientation, these suggestions were far from enough even if they had all been accepted. Their secret organizations in the framework of the Hungarian Jacobin movement were not really dangerous, but they seemed so in the light of the events in Paris at the time. In fact, among the published goals in the Declaration of the Jacobin movement there was the establishment of a Hungarian civil code. It is not clear whether they meant a Bürgerliches Gesetzbuch after the Austrian model or a Code Civil after the French model. Probably rather the latter, because they also supposed that the privileges of the Estate and the unlimited rights of the sovereign would be abolished. (The Austrian civil code remained neutral about these issues.) When the independence movement was detected, the Palatine (i. e. the viceroy in Hungary) who until then had supported reform, suddenly influenced the king in the opposite direction. He suggested the withdrawal of aU concessions and introduced a police state. The fact that shortly after this he lost his life at a fireworks display made the reform organizations only more suspicious. An assassination could not be proved but could not be excluded either. Thus the Hungarian reforms were taken off the agenda for the 25 years of the French Wars. After 1815, aU notion of self-govemment, constitutionality or the equality of citizens would have been contrary to the spirit of the Holy Alliance. Ten more years had to pass until the opposition of the counties in army issues forced the king to caU Parliament again and with this the Hungarian reform age could recommence.

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39

m. After the Congress of Vienna and until 1825, the monarch, Francis I, did not call the Hungarian Parliament. Instead of laws, he governed only by royal decrees (patens, Patent). Offices were given to his conservative supporters. The press was restrained by strict censorship. Royal envoys were appointed as so-called administrators to the top administrative offices of those counties that protested against the authoritarian measures and military force was used against the dissatisfied. However, the Austrian Empire could not recover from the debts of the long wars. As in Hungary, taxation and recruitment of soldiers was only possible through the decision of Parliament, this was the main reason for the eventual recall of Parliament. The second important issue for the king was to secure the succession to the throne for his son, Ferdinand. For this Parliament required from Ferdinand the oath on the feudal constitution (which he duly swore) and thus constitutionality was pro forma restored. The 1825-27 Parliament once again put the reform plans of 1792 on the agenda and tried to complete them. The parliamentary committees tried again to modernize state administration by legislation. They were thinking entirely within the framework of the feudal constitution and there was hardly any suggestion for constitutional change in the direction of civil conditions. At this stage, most of those participating in politics regarded the feudal constitution as a guarantee of the relative independence of Hungary within the Habsburg monarchy. The central government did not want revolutionary changes either; in fact, they regarded giving the counties autonomy and freedom of speech as too much. The committee dealing with corvee and agricultural relations thus touched upon the very basis of the financial existence of the Estates. There the committee's most progressive suggestion was to allow the free trade of serfs land provided that the landlord could continue to receive the benefits of it. The only restrictions they would have applied would have been to prevent the acquisition of too much land in any particular area by wealthy peasants. This they would have done by establishing maximum limits to the amount of land a person could own. During the work of the economic committee the proposal emerged to abolish, in their entirety, the ancient laws regulating the inheritance rights of the gentry. Indeed, they demanded different methods by which the nobility could incur debt, the construction of highways, waterways and railroads to promote commerce and the creation of common customs regulations with the Austrian Länder. The idea of protectionist tariffs to shield the development of Hungarian industry was also raised. The main committee rejected all these reforms.

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Janos Zlinszky

The legislative committee drafted important reforms, mainly in the field of laws referring to bills of exchange. These reformers also touched on the very foundations of the feudal constitution. Further they suggested the regular operation of county courts, the curbing of the local gentry jurisdiction and the equality before the law of honoratiore~ and manufacturers whose main occupation was industry. The committee for public law wanted to end the sole right of the gentry to county offices and to strengthen the right of counties for the constitutional control of decrees. In addition, they would have given formal guarantees to shape the order of discussions at county as weIl as at parliamentary level. They wished to regulate with a law the work of the governing council, which would have been obliged to report to Parliament. The committee pressed for a wider representation of towns in Parliament and would have also secured a place for adelegate of the University.' The tax committee wanted to ease the burdens on the country from having to support the army, saying that army expenses were not legal obligations but belonged to the treasury. This suggestion, however, fell through because of the resistance of the head committee and the central government. They also declined the suggestion of the military committee to change the old fashioned duty of the gentry to raise an army by personal service to trained gentry battalions within the framework of the regular army. The committee on education had to face the question of whether, in principIe, the regulation of education was a royal right or is a subject for legislation. The basic principle on which the structure of the education draft was built was the notion of equal education according to the needs and demands of the gentry. The suggestion to teach at least one obligatory subject in Hungarian is of some interest. The progress into higher grades would be conditional on successfully completing this Hungarian course, whatever the subject. They also proposed that only trained teachers should be employed in education and that the posts of directors should be given out by tender and by competition before university committees. In the mining committee, the owners' interests clashed with the interests of the treasury. The committee itself promoted the union of owners in the four re-

6 "Honoratior" was the tenn for all those of non-gentry origin who held a university degree. , From the 17th to 19th centuries, the university founded by Cardinal Peter Pazmany in 1635 was the only one in the kingdom ofHungary.

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41

spective mining districts, whereas the treasury commissioned the development of an entirely new mining law, which was duly completed.· Albeit the 1825-27 Parliament was dissolved after two years' work and with no visible reforms, the committee work continued, and thus by 1830 the reform suggestions detailed above were fully developed and a new parliament could discuss them. 9 This time, they did not have to wait another 10 years. The revolutionary events in the year 1830 in France also set things in motion in Hungary. The Parliament of 1830 brought important results in the field of human rights for serfs and the possibility for their ownership of land. It was at this Parliament that the reform generation of the gentry, which later carried through this bourgeois transformation, appeared on the scene. Albeit they were in the minority, their influence grew rapidly throughout the country. Although the Parliament again postponed the discussion of the suggestions of the reform committees, the drafts were published in print. These were then discussed at county level to prepare the county delegates to the Parliament, to be continued the following year. But the 1831 Parliament could not be called because the country was plagued by a cholera epidemie. This was followed by a peasant revolt spreading through several counties. Thus it took years until the reform work could really start. The revolt strengthened the opinion of those who saw danger in any leniency.

IV. The literary preparation of reform thoughts started with the book written by Count Istvan Szechenyi entitled Hitel (On Credit). This book, published in 1830 in Pest, identifies the lack of industrial freedom and the inability of the gentry to obtain credit as the root of domestie economic and social problems. Count Joseph Dessewffy, one of the leaders of the conservative gentry, criticized the book under the title Taglalat (Treatise) which was a good opportunity for Szechenyi to write a detailed reply in the next year entitled Vi/ag (Light), in which he explained further his reform ideas. However, the movements breaking out in the meantime cut off the possibility of peaceful reforms. Szechenyi's third book, Stadium (Milestone), whieh • Jimos Zlinszky, Banyaügyi reformtörekvesek a 19. szazadban [Mining law reform initiatives in the 19lh century], in: Acta Universitatis Miskolciensis 8/3, 1988, p. XXX. 9 Karoly Vörös, Magyarorszag törtenete 1790-1848 [The History of Hungary between 1790-1848], in: Gyula Merei (ed.), Magyarorszag törtenete [History of Hungary] 10 vols., Budapest 1980, vol. V, p. 639. 4 Dippel

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!anos Zlinszky

presented a concrete series of reform measures, could only be published abroad in Leipzig (together with a similar work by his friend and supporter Count Mikl6s Wesselt~nyi). All the same, it defined a program for the domestic reform movement.

Stadium identifies 12 steps for the necessary economic and constitutional reforms. These are a) laws on credit, abolition of demesne and partial burdensharing, b) freedom of property, the equal standing of non-gentry before the law and their representation in public life at county level, c) exclusive rights of Parliament to define the use of tax revenues, freedom of industry and commerce, and d) Hungarian as the official language, extension of central special administration and transparency injudicial and politicaljora. These reform thoughts were discussed in the Parliament of 1832-36 together with the above-mentioned committee proposals. Finally, the progress in economic areas was stalled by the resistance of the royal court, and by the parliamentary majority demanding the maintenance of the privileges of the Estates. Parliament was not willing to give up the autonomy of Hungary, as was signaled by the crowning of Emperor Ferdinand I as King Ferdinand V. But real progress was only made in the easing of the burden on the serfs and in the hitherto unprecedented openness of the discussions. This later, however, resulted in several high treason charges basically reactions to the practice of free speech. The charges against Mikl6s Wesselenyi, Laszl6 Lovassy, and his accomplices and finally that of the popular reform politician of the new generation, Lajos Kossuth,IO who went as far as to print reports from Parliament and county meetings, all ended up in prison sentences. As a result, Lovassy and Wesselenyi vanished from the political scene because of illnesses contracted during their imprisonment. The next parliamentary session, between 1839-40, had some further partial results. Passing aseries of laws on trade and bills of exchange, they established the freedom of industry, trade jurisdiction and the laws for commercial processes, bankruptcy law, law on corporations and Hungarian contract law all within the framework of trade law. This same series of laws accomplished the introduction of direct oral procedure, at least with the courts for the bills of exchange. The Parliament also passed the fee simple law which had been blocked during the previous Parliament. They established the recognition of the lewish religion, thus starting the emancipation of the lews. They planned the reform of criminallaws and criminal procedure and formed a committee to work on this task. 10 Lajos Kossuth (1802-1894), lawyer, prominent reform politician, MP, founder of the fust Hungarian daily paper. Contrary to Szechenyi, he argued that political reform was the prerequisite to economic development, not the fiuit of it.

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The last Parliament still remaining within the framework of the feudal constitution was held in 1843/44. On its agenda for legislation, apart from the reform of the bills of exchange laws, there was aseries of bills promoting the development of trade, industry and transport. On the other hand, the issues of criminal law, public education, establishment of the national banking system based on burden-sharing and many other important proposals ran aground. The mood of the parting delegates was a pessimistic one. Nevertheless this Parliament created the atmosphere for national constitutional reform, for it persuaded the Estates that without constitutional reform there could not be a social or economic reform either. As Dealell put it, "One must create the skeleton first; the flesh only comes afterwards." In the following period, the central government tried to strengthen its position at the county government level. Instead of the royal or noble bailiffs, the king appointed central administrators. These tried to influence elections with every means, so that instead of reform programs, the directions to the delegates would better suit the central government. The central government raised essential reform proposals in order to avoid discussing the issues of the relationship of Hungary and Austria, the withdrawal of defence and financial issues from the court, and increasing the responsibility of the government to Parliament. Therefore, it was the plans of the conservatives that contained fee simple land ownership, the abolition of aviticitas (escheat, or the right of the crown to the return of land from gentry whose line has died out) with the redemption of the lord's burden and the tax privileges of the nobility. The reform opposition was hardly united. From Szechenyi through Deak to Kossuth and even further, e.g. Petöfi,12 they had different demands, although all of them supported the reform plans of the government. The main demands of the opposition were summarized in a contemporary record as set out below: 13 1.

Burden-sharing, with the budget approved by Parliament and the parliamentary control of spending.

2. The representation rights of non-gentry citizens, especially citizens of

towns, had to be decided.

II Ferenc Deak (1803-1876), from the landed gentry, greatest Hungarian lawyer of the century, ftrst minister of justice, stalwart supporter of legal constitutionality. 12 Sandor Petöft (1823-1849), most popular Hungarian poet ofthe period, radical republican. Fell in the battle of Segesvar during the Russian military intervention against Hungary. 13 Mihaly Hmvath, 25 ev Magyarorszag törtenelmeböl 1823-tol 1848-ig [25 years ofthe History ofHungary between 1823-1848],2 vols., Geneva 1864, vol. 11, p. 182.

4"

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Janos Zlinszky

3. Equality before the courts.

4. The work and other duties of peasants should be abolished, with compensation to the landlord. S. Abolition of aviticitas and with that the establishment of the free trade in land and the right to incur debt. The opposition supported every step which brought them closer to these aims. But they also declared in writing that together with the above reform steps the relation of the country to Austria would have to be settled in detail. Part of the settlement was the union of the countries of the Hungarian crown such as Transylvania and the Partium with royal Hungary as weIl as the settlement of the relationship with Croatia. The demand for a government responsible to Parliament also served this goal. In 1847 the king's uncle, the widely respected Palatine Joseph, died. This necessitated calling the Parliament to elect his successor. Thus this was the year when the Parliament which finally changed the feudal constitution into a Hungarian civil constitution assembled. The government tried to use all its influence in the elections, but even so the two factions were nearly balanced in numbers in the lower house. However, the reform opposition led by Kossuth soon outweighed the other side. As the Parliament gathered, the first discussion was about the agenda. Conservatives wanted to start work on the reforms and opposed the idea that Parliament should protest against the absolutist central government. The essence of the debate was the question whether the monarchy should develop in the direction of a unified empire and in the process gradually abolish the formal Hungarian independence or whether they could find a modern solution in the spirit of the law of 1790/91, Art. 10, to have the constitutional Kingdom of Hungary accepted as an equal partner of Austria within the monarchy. The passing of this question of independence in its original form was prevented by the Upper House. They deleted so much from the draft of the lower house that even Kossuth hirnself proposed to withdraw the draft and to pick it up only at a later point. Instead, tax reforms, i. e. the abolition of the tax exemption of nobility, were put on the table. The proposal had three parts. One was taxes levied on the land ofthe gentry, a so-called "house tax" to be paid to the counties. Large landowners were opposed to this because they were afraid of getting an unfair deal from the majority of smallholder gentry at the county assemblies.

The second question was the army tax. Until then such a tax was accepted by one Parliament after the other. This time the majority would have voted for it under the condition that the spending of this tax would have to be reported to Parliament, a condition Conservatives were opposed to. The third idea, the creation of the national central bank - an old reform idea of Szechenyi - had

The First HWlgarian Civil Constitution (1848)

45

hardly any opposition. In this basic question divided into three issues, the internal divisions of both camps came to the fore. At the end of the day, the house tax did obtain a majority, the army tax without parliamentary control did not and the bank nearly received unanimous support. For the development of the details, a joint committee of the two houses was set up. Parliament was sharply divided over the question of the administrators appointed to the counties but both houses were able to accept the abolition of peasant contributions to landlords with compensation. During the winter of 1847-48, a committee was set up to work on the detailed draft. The abolition of aviticitas was proposed by the conservatives themselves, and found wide agreement. There were differences when the complaints of the Croats were discussed. Croatia suggested to maintain Latin as the official language between the two countries or to introduce the Croat language for their internal issues. Sadly, this proposal which by the way was accepted soon afterwards, did not even receive the support of the reform opposition at that moment in time, thereby contributing to the Hungarian-Croatian controversy in the following period. In the first months of the year 1848, Kossuth submitted the plans for the railway between Pest, Vukovar and Fiume as part of the Croatian question. It was against this plan that the leadership of the government party under Szechenyi, together with part of the reform opposition, developed a countrywide transport concept. This no doubt would have meant more advantages to Hungary so for a while the plan put in doubt Kossuth' s role as the leader of the opposition. At this time, however, the king's answer to the al ready proposed suggestions by Parliament arrived, which forged the opposition together again. Also, the events of the Paris revolution in February 1848 created some support for the Hungarian constitution plans on the Austrian side. It is certain that the Vienna Revolution of 13 March was one of the main reasons for the favorable reception of the proposals from the Hungarian Parliament, which were, after all, legally submitted, and thus emphasized the loyalty to the Habsburg dynasty. The success of Parliament in regard to the development of the constitution

was also considerably supported by the movements which started in Pest in

mid-March and then spread throughout the country. Young writers and lawyers formulated the reform proposals of Parliament concisely and in a popular style, and then printed and distributed them without permission from the censor. Finally they had the twelve points accepted by the town leaders. The real novelty of the twelve points is their brevity; in terms of content they are no different from the plans described earlier. "What is the Hungarian Nation asking for?" asks the pamphlet, and answers in one sentence: Peace, Liberty, and Accord. From this sentence it is clear that not even the Pest revolution sought an armed fight against the government. The twelve points stated:

Janos Zlinszky

46

"We ask forI.

the freedom of the press and the abolition of censorship;

2.

a govemment in Buda-Pest, responsible to Parliament;

3.

parliamentary sessions to be held in Pest every year;

4.

equality before the law in respect ofboth civil status and religion;

5.

anational guard;

6.

the sharing ofthe tax burden;

7.

the abolition of duties and obligations to landlords;

8. juries and representation on the basis of equality; 9.

anational bank;

10. the army to be swom in on the constitution, Hungarian soldiers not to be taken abroad; foreign ones to be withdrawn from Hungarian soil; 11. political prisoners to be set free; 12. the union with Transylvania."14 The twelve points conclude with the famous motto of the French Revolution - equality, liberty, fratemity. In this demand, one can discem the notion of the new capital, Budapest, which until then only appeared in the transport plans of Szechenyi. There is also the separation of the unified imperial and royal army into national units; instead of the Hungarian credit institution, anational bank, albeit not in a very detailed form; finally, jury courts, which could have been a logical conclusion of the Hungarian 10wer court system that al ready worked with mostly elected and not professional judges. The Pest movement, however, did not develop detailed proposals for these and only went as far as freeing the political prisoners (without using force). The work of the Pozsoni~ Parliament was mobilized again by this news, although parliamentary delegates - even Kossuth hirnself - tried to calm the 14 As a consequence of the Turkish occupation of the middle and southern parts of the Kingdom ofHungary in the 16th century, the Transylvanian (eastern) part ofthe country (together with several neighboring counties) was ruled as an independent Principality, separately from the northem and western part of the country which was governed by the king. After the re-conquest of Hungary at the end of the 17th century, the Habsburg kings maintained this divided governance (and took the title ofPrince of Transylvania), against the will ofthe Hungarian Parliament. l~ Pozsony, in Slovakian Bratislava, is since 1920 (paris peace treaties) the capital of Slovakia (till 1992 within Czechoslovakia). When the Turks occupied Buda,

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47

revolutionary Pest youths. On 14 March, Parliament sent delegates to Vienna, accompanied by the Palatine, who requested the appointment of a responsible government and the approval of reform proposals. Thus on 17 March, Palatine Istvan could return to Pozsony with the newly appointed Hungarian Prime Minister, one ofthe leaders ofParliament opposition, Count Lajos Batthyany.16 Parliament resumed its session on 18 March. It passed bills regarding sharing of the tax burden, the abolition of duties to the landlord (with postponement of compensation arrangements), the abolition of the so-called "church tithe". On 20 March, the press law was passed (in a much stricter wording than in the 12 points) and three days later, the bill calling for responsible government (i. e. ministers who, while still appointed by the king, remained responsible to parliament). The Court refused to sign these on 28 March even though the situation became more and more delicate as the armed rebellion of the Italians broke out. The Palatine volunteered to go to Vienna and mediate but it was only the news of further revolutionary activities from Pest that brought the sovereign to approve and publish the laws of the new order in Pozsony on 11 April.

v. The civil constitution of Hungary is manifest in the April Laws of 1848. The harmony of the concessions of the sovereign under pressure and the magnanimity of the Parliament closed 25 years of efforts of reform. The laws of the Parliament of 1848 contained the foundation of the new system. Law III regulates the formation of the independent Hungarian government. This law maintains the personal immunity of the king and his deputy, the Palatine. It also makes it clear that both can only exercise executive power through the independent (i. e. independent from the imperial administration) Hungarian ministries. Royal decisions and actions not bearing the signature of the responsible minister are invalid. Such a signature was needed, for instance, for appointments, for exercising the right of granting pardon and the award of titles and ranks. Similarly, it was necessary for the deployment of the army. The ministers on the other hand were responsible for all their official activities including the impact of their decrees. Parliament had the right to require an accounting of their actions, a right regulated in detail by the law. Pozsony, an important border town and fort near Vienna, became for three centuries the capita1 ofHlUlgary. 16 COlUlt Lajos Batthyany (1807-1849) who paid painstaking attention to the 1egitimacy ofhis actions during his short office, was executed by the Austrians in October 1849 after the crushing ofthe HlUlgarian Revolution.

Janos Zlinszky

48

The seat of Government and the State Council was to be Buda-Pest according to the same law. Law IV deals with the demand for regular sessions of Parliament. Parliament has to be called every year, preferably in the winter months. According to the law, MPs are elected for three years. Their work is paid and their sessions are open to the public. The law divides legislation from the high court in the spirit of separation of powers. Suffrage is dealt with by Law V. Everyone who al ready had the right to vote retained it. In addition, the right to vote was given to male inhabitants of the country above the age of 20, free, with no criminal record, on the basis of property status, industrial activity, education or tOWll citizenship. The minimum age limit for eligibility for office was 24 years. The law left it to the municipalities to form constituencies and only fixed the number of delegates to be elected per county andlor tOWll. The election was held directly by oral voting or by unanimous proclarnation. Complaints were dealt with by the lower house of Parliament. Laws VI and VII settled the question of the Hungarian counties administered together with Transylvania and Transylvania itself to be re-uni ted with Hungary, pending a similar decision by the Parliament of Transylvania. 17 Law VIII dec1ared the introduction of burden sharing and left it to the government to develop provisional tax rates and their introduction from 1 November onwards. These provisional tax rates, however, would have to be approved by the next session of Parliament until a detailed tax law could be developed. Laws IX, X and XI provided for the abolition of manumission with immediate effect. They also abolished the administrative and juridical powers of landlords. Law XII provided for assessment of loss of income to the landlords and compensation from the state budget caused by Law IX. The discussion of this law did not go into detail because they feared that the whole reform process might be stalled, so they put the issue under the shield of the integrity of the whole nation, as Ferenc Deak:18 recommended. The same was done for the church tithe abolished by Law XIII. Law XIV established the Hungarian Credit Institute with a capital of 500,000 forints. This law was not implemented as it endangered important financial interests of the empire. 19 This decision was made in the Transylvanian Laws of 14 JlUle 1848. This issue was solved, after the crushing of the uprising, in the spirit of absolutism by theAvitizitätspatent, i. e. the Imperial Decree of 1851-2, 29 November. 19 The HlUlgarian Trade Bank initiative by Law XXVI of 1873 also failed and only the Land Credit Institute fOlUlded in 1874, by Law XXIV, was successful. 17

18

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49

Law XV abolished the aviticitas and at the same time ordered the development of the Civil Code for the regulation of civil property issues. 20 Law XVI dealt with the county-level self government and Law XVII regulated the elections of county-level officials. The general right to vote was also introduced at the county level and the activity of the administration was made public. Otherwise, it was expected that government would come up with a proposal to define the relations between central and local administration by the convening of the next Parliament. Law XVII dealt with the freedom of the press. Unlike the brevity of the Twelve Points, besides the general provision of freedom of the press in principIe, the responsibilities and transgression of the press were also covered. The law declared the responsibility of the author, but also that of the publisher and even that of the printer. It also regulated the process for dealing with transgression of the press, which was to happen in open jury procedures. Another chapter deals with magazines and newspapers, making it a condition to pay a precautionary deposit and to obtain an official permit for publishing a periodical. The activity of bookshops and printers was also regulated. Law XIX declared the basic principles of the freedom of teaching and learning. The pupil has free choice between professors offering parallel courses, and guarantees were given that not only professors but also other prominent experts could teach freely in higher education institutions. This law also submitted universities to surveillance by the Minister for Education. Law XX did not live up to its promises in the maUer of religion. Though it established equal status for established religions and included the Unitarian Church, it stopped short of providing equality for the Jews, be it in the questions of town citizenship, industrial rights or equality among religions. Law XXII provided for the organization of the Hungarian national army. This was an important question for the country' s sovereignty, and proved crucial in defending the reforms. Laws XXIII-XXVII deal with the elections of smaller local selfgovernments in the free royal towns, in larger villages and in areas with special privileges such as the Heyduk towns, the Jasz-Kun districe1 and in the district ofFiume. 20 Law XIV was actually implemented by the Avitizitätspatent. A separate HWlgarian Civil Code was only drafted in 1901 and it was not Wltil1958 that an entire Civil Code was enacted. 21 The Jasz [Jazig] and KWl [Cumanus] people were nomadic herdsmen who entered the kingdom ofHWlgary in the middle ages from Asia, were settled on the plains in the middle ofthe cOWltry, and enjoyed some degree of self-government.

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Law XXIX declared judges undismissable. AB for the status of other civil servants, there were no such limitations; on the contrary, the law explicitly opened the possibility of reorganization of state administration by government ministries. Finally, Law XXX ordered the planning of a road and railway system centered on Budapest, whereas Law XXXI provided for the establishment of theatres and their control in the interests of public order. The theatre regulations were much more strict than the laws limiting the press. These laws were the last legal acts of the Hungarian Estates Parliament. They bore the royal approval; thus their legitimacy and legality were beyond doubt. AB a result of the elections based on the above laws, the first Hungarian Parliament with popular representation was opened in July 1848, though still by the viceroy, the Archduke Palatine. But then its work was overshadowed by the inter-ethnic civil war started against the independent civilian Hungarian State, which was led and supported by the Imperial Army right from the beginning.

VI. In 1848, there were revolutionary movements. There were three capital cities of the Habsburg Empire in which there were revolutionary events. In Milan, Prague and Vienna there were armed uprisings. In Pest the events remained within legal bounds. The court, however, suspected that the process might also turn in Hungary into a position where they would reject the person of the sovereign. This suspicion was supported by some reports in the Hungarian press. On the other hand, it was very obvious from the center that it would be very difficult to keep together a multi-ethnic state which would have civil government, general suffrage and the use of nationallanguages. Difficult even if the politicians who were steering the transition did not think one by one in terms of dissolving the original unity. The national politicians had only their own relative independence as their task but no one knew the practicalities of such a system, not even in theory. It was even less possible to forecast for what aims the masses who had just won the right to the vote would be enthusiastic. Prague and Milan were openly speaking of leaving the Habsburg Empire. The Croats only wanted aseparation from the Hungarian crown. Arnong the Serbs and Romanians, there were some who voiced their dreams for Greater Serbia and Greater Romania apart from the monarchy but for the time being even those were clinging to the imperial coat tails in their fight against the Hungarians. Against such a background, the tone used by Sandor Petöfi, the popular poet writing against government and king demanding a republic and freedom for the world, caused real concerns in Vienna.

The First HWlgarian Civil Constitution (1848)

51

The people in the streets and the press in Pest were demanding faster progress with the reforms from the Parliament in Pozsony and subsequently in Budapest. After the opening of the Parliament in Buda, the leftist reformers submitted an amendment to the issue of abolition of the duties of the peasants. According to this amendment, land was to be given to landless peasants and the corvee abolished and the manumission damages to the landlord were to be paid by the state. According to another proposal, damages were only to be paid to those who would lose all their income as a result of these measures. Those, however, who had another source of income from their office, profession or property would have to manage without compensation. Negotiations on the details of the reform were made impossible by the threat ofwar. Even the government in Vienna asked the Hungarian Parliament to send recruits to fight the Italian revolt. Besides this, the Hungarian government thought it necessary anyway to organize rapidly the national army that the Aprillaws provided for, because of ethnic unrest in the southern part of the country and the threatening mobilization of the Croat border guards. Parliament approved the necessary financial means and number of recruits unanimously. However, this was not a revolutionary step because the same Parliament also approved with a great majority to send troops to Italyas requested. The condition for this, however, was the recall of the Croatian ban, Jellasich, who disobeyed the instructions of the Hungarian government. As this request remained unfulfilled, there were no Hungarian troops sent to Italy but this did not depend on the Hungarian Parliament at the end of the day. In August, the House of Representatives (the lower house) passed the draft law on general public education submitted by Minister for Culture Eotvos. The topic of the bill itself shows that Parliament was not in a revolutionary mood. The Minister for Industry created a new Regulation of Guilds, to accommodate the radical wishes of the apprentices. However, in the meantime, as the imperial army finally achieved some successes against the Italian revolution, the new Vienna government declared that the Aprillaws contradicted the Pragmatica Sanctio. The King asked the Hungarian government to participate in the development of a system where Hungary would be ruled under a central imperial "high government". In particular, they wanted to withdraw finance and defence from the Hungarian government. In this situation the Hungarian government replied by declaring itself ready to accept the full independence of Croatia, and also the management of finance and defence as common issues. In return, they asked the withdrawal of the ban of Croatia who attacked Hungary on 31 August. The Court refused. Therefore the Hungarian Parliament approved the proposal of Kossuth to start the recruitment of soldiers and the establishment of the financial background of the

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army, according to the laws that were al ready passed by Parliament but lacked royal assent. In early September, the Palatine attempted to dec1are that he had taken over power from the government. Parliament rejected his dec1aration as unlawful for it did not bear the required ministerial signature. A new government was formed headed again by Batthyany who was supported by the ministers of the previous government, most importantly Kossuth. On 15 September, Parliament cancelled the vine "tenth"/2 a very burning issues as grape harvest was imminent. The abolition of the last remaining privileges of the landowners against due compensation was also on the agenda, but in the grave political situation, no resolution was arrived at. Instead, Parliament elected a Defence Committee to handle the ominous situation on the borders, especially in the South. This Committee, chaired by Lajos Kossuth from 8 October, emerged then as the responsible leading body ofthe country. Thus the new Parliament of popular representation was confronted with the sovereign whose order started the war of the Imperial Army against Hungary. The task of leading the war - the roles of both government and administration - was delegated to the parliamentary committee for defence. Its members were at first radical MPs from the left but was later composed of mainly liberal reformers who nevertheless were striving for legitimacy. As it was decided that the Committee had to govern, Parliament asked the Chair to appoint members of the committee to be responsible for the individual issues. The Chair of the committee hirnself had more power than the Prime Minister had previously possessed. His appointments did not need the royal assent, and his decrees were valid without the signature of the minister responsible. His power practically uni ted the powers of the Prime Minister with that of the Sovereign. The determination of Parliament could not save the situation in late autumn 1848. By the end ofthe year, imperial troops moved into the capital Buda-Pest. Parliament and the Defence Committee withdrew towards Debrecen, to the East. These successes were followed by the abdication of King Ferdinand V and the young Archduke Francis Joseph's accession to the throne. On 2 March 1849 Francis Joseph issued a new constitution for his entire empire, which dissolved Hungary in the Austrian Gesamtmonarchie, and also put an end to constitutional rule in Austria itself. By the time this constitution was published, the course of the war had changed. In March the Hungarian army crossed the Tisza river at Szolnok, moving westwards. In April a long offensive followed, as the Hungarians retook Pest, and pushed the enemy back on the shores of the Danube as far as Komarom. In May, Buda Castle fell into Hungarian hands. 22 One tenth ofthe grapes collected belonged to the landlord.

The First Hungarian Civil Constitution (1848)

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This turn of the war, together with the sovereign's renunciation of the constitutional laws of 1848 (by the act of issuing the new March 1849 Constitution) led to the reaction of the Hungarian Parliament sitting in Debrecen. On 14 April, the Hungarian Parliament renounced the rights of the House of Habsburg to the Hungarian throne, on grounds of breaking the country' s laws: fighting a war against the country and disregarding the constitution. For the time being, Parliament left open the issue of a new, detailed constitution. It appointed Lajos Kossuth as governor-president to lead the country. It also appointed a new government though, and again required the ministerial signature to validate the Governor' s decrees - thus it took back the concentrated power earlier given to the Chair of the Defence Committee. In the meantime, Austria asked for emergency military intervention of Russia against the Hungarian Revolution. With this aid granted, Austria regrouped the forces that were no longer tied down on the Italian front, and Hungary was attacked again from two sides by a force four times the size of the Hungarian army. Within two months, the Austrians approaching from the West reached the line ofthe Tisza River again, while the Russians moved forward from North to South along the river to Arad. By early August, the only possibility for the remainder of the Hungarian army concentrated around Arad was to lay down their arms.

vn. After the armed victory there was a hope among the conservative Hungarian circles that the constitutional conditions of 1847 would be restored. Their hope was in vain. The Imperial Government required absolutist order in the entire monarchy. The vast majority of the Hungarian nation reacted against this approach with passive resistance. After ten years, it became clear that it was not possible to govern nor to appease a nation against its will. The first attempt to restore Hungarian legality was in 1860-61, when the old Hungarian order was re-established through court procedures. In the meantime, the essence of the civil reforms of 1848 was actually safeguarded and implemented by provisional regulations and, subsequently, by governmental decrees (patens).

After another five years, Austria renewed its attempts to reconcile itself with the nation within the legal framework. It took two years of negotiations to create the compromise solution which restored Hungarian sovereignty, the two houses of Parliament and the general elections, the governmental responsibility to Parliament and the obligation of the king to swear the coronation oath. On the other hand, the sovereign retained the right to the royal assent of laws

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J3nos Zlinszky

and the right to prior approval of draft Iegisiation as weH as the command of the army. In the issues of defence, finance and foreign affairs, common ministries were created. For aH other governmental areas, administrative power remained with Hungary, and was divided between the central Hungarian government and the Iocal authorities.

Separation of Powers in Austria's First Constitutions By Wilhelm Brauneder

I. The Separation of Powers in General The Habsburg Monarchy (Kaisertum Österreich) was one of the last states in Central Europe which entered the circ1e of states with a limited monarchical government, so-called constitutionalism. Similar to the Prussian Monarchy, the Habsburg Monarchy was not vested with a written constitution until the revolution of 1848. 1 The western portion (later called Austria, in contrast to the Hungarian portion) mostly belonged to the German Confederacy. At the beginning of 1848, with only a few exceptions - such as, primarily, Austria and Prussia - its member-states were ruled as constitutional monarchies based on a (written) constitution which provided basic rights and a limited government, first of all granted by the separation of powers (Gewaltentrennung). In the former absolute monarchies, the separation of powers not only served as a valuable constitutional principle but also combined two other principles exc1usive to each other: the sovereignty of people versus the sovereignty of the monarch. In the separation of powers, the executive power should remain with the monarch and 'his' administrative authorities, on the one hand, while the legislative power was given to the parliament and therewith to the people it represented. The third power, the judiciary, should stand independent of both of these powers. Further, something like a mutual supervision was foreseen between the legislature and the executive power. Its means for doing this was the sanctioning of bills from the parliament by the monarch and, respectively, the responsibility of the ministers towards the parliament.

1 For Austria: Wilhelm Brauneder, Österreichische Verfassungsgeschichte, 7th ed., Vienna 1998; in general for Central Europe: Christian-Friedrich Menger, Deutsche Verfassungsgeschichte der Neuzeit, 8th ed., Heidelberg 1993; Dietmar Willaweit, Deutsche Verfassungsgeschichte, 3th ed., Munich 1997; Peter Seimer, Gewaltenteilung, in: Adalberl ErlerlEkkehard Kaufmann (eds.), Handwörterbuch zur deutschen Rechtsgeschichte, 5 vols., Berlin 1971, I, pp. 1642 ff.; Prussia: Reinharl Kasel/eck, Preußen zwischen Reform und Revolution, Stuttgart 1981.

Wilhehn Brauneder

56

Thus, in the very specific historical situation when European monarchies switched from an unlimited monarchical government to a limited one, the separation of powers served two purposes: first, to limit powers in general, secondly to combine the political establishment - the monarch and his surroundings - with the new political power - mainly the bourgeoisie and its representatives in parliament. This was also true of the constitutional development in Austria2 in the years

1848/49 and again later in 1867. 3 Modern ideas and patterns of liberal-

democratic governments and how to guarantee them through a written constitution became increasingly important in Austria in the years before 1848. Despite the censorship of the bureaucracy and its supervising activities, books, pamphlets, etc., about constitutional matters had been very well known and also discussed in learned societies, e.g. in reading clubs. 4 Among the many titles, one served as the so-called "constitutional bible of the liberals", the "Staatslexikon" (Encyclopaedia of State), edited by Rotteck and Welcker. 5 Surprisingly, it does not offer articles about "Separation of Power" (Gewaltentrennung) or similar topics. However the keyword, "Powers of State" (Gewalten), refers to a very specific article about Cabinets-Justiz (justice of the monarch instead of independent courts). Perhaps this served as a type of camouflage against the censors, as this article starts with the heading "Separation and Independence of the Judiciary from the Executive and the Legislative" (Trennung und Unabhängigkeit der richterlichen Gewalt von der regierenden und der gesetzgebenden) and continues with very intensive explanations about theories on and the realization of the separation of powers. Other, sometimes popular, books also followed this line: e.g. a "political ABC for the people" ("Politisches ABC fiir's VOlk,,)6 offers articles e.g. on "Constitution" (in general), especially the constitutions of Belgium and of the USA, human rights, and even about "barricades" (Barrikade) and "charivari" (Katzenmusik). But it does not deal with the separation of powers, not even under Cabinets-Justiz! Whatever the reason might be, the principle of separation of power was not

Österreichische Vetfassungsgeschichte, pp. 112 ff. Wilhelm Brauneder, Der Beitrag des Parlaments zur Entwicklung des Vetfassungsrechts vor 1918, in: Herber! Schambeck (ed.), Parlamentarismus und öffentliches Recht in Österreich. Entwicklung und Gegenwartsprobleme, Berlin 1993, pp. 43 ff. 4 Wilhelm Brauneder, Leseverein und Rechtskultur. Der Juridisch-politische Leseverein zu Wien 1840-1990, Vienna 1992; Marlies RajJler, Bürgerliche Lesekultur im Vormärz. Der Leseverein am Joanneum in Graz (1819-1871), Frankfurt 1993. 5 Carl von RottecklCarl Welcker, Das Staats-Lexikon. Enzyklopädie der sämmtlichen Staatswissenschaften, 2. ed., 12 vols., Altona 1846,11, pp. 777 ff. 6 JosejSeegen/Max Schlesinger (eds.), Populäres Staats-Lexicon (Politisches ABC fiir's Volk), 3 Bde., Vienna 1848, I, p. 99 (Cabinets-Justiz). 2 Brauneder,

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Separation ofPowers in Austria's First Constitution

57

highlighted so much in the respective literature. It is worth underlining this feature in regard to constitutions described later. Ouring the short, but nevertheless overwhelmingly important reform period of 1848/49, Austria not only underwent a very deep constitutional change but enjoyed a very rich and fruitful discussion of constitutional matters in the imperial and local parliaments, as weH as in academic circles and the press. Besides many pamphlets on constitutional matters and draft constitutions by private persons and local parliaments (mentioned under III), the main and typical results of this movement are three texts of constitutions: the constitution of 1848 and its successor, the constitution of 1849, and, chronologicaHy in between, the draft constitution of the Imperial Oiet (Reichstag), the s ehe altrove e fmito", senza avere Ie "trecento e piu mila baionette agguerrite" ehe erano state dietro Ia rivoluzione franeese deI 1789, 10 Sterbini e il Vineiguerra eontestarono vivaeemente il suo giudizio sulla ormai evidente seonfitta e riflusso della grande ondata rivoluzionaria deI 1848 (Assemblee, Roma, vol. III, pp. 56, 58, 74, 76). 62 Assemblee, Roma, vol. IV, pp. 889-895, 844-845. ~6

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Giuseppe Galasso

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modifieazioni ehe subi il testo deI seeondo progetto furono poche",63 se non in rapporto al fatto ehe la diseussione riusci distesa ed esauriente solo per il preambolo e per pochi articoli, poiehe in eapo a pochi giorni dall'inizio deI dibattito la situazione di Roma si feee drammatica e non vi furono piu ne il tempo, ne la liberta di spirito per proseguire nell'esame deI testo. Le modifieazioni, poche 0 molte, furono, eomunque, importanti. Il numero degli artieoli rimase pressappoeo immutato (da 71 divennero 69, il preambolo rest a VIII artieoli), ma i mutamenti di forma e di sostanza, per la parte e nella misura in eui l' Assemblea ebbe il tempo e una relativa serenita per diseuterlo, non furono affatto traseurabili. Confrontiamo anehe qui il testo deI seeondo progetto e quello definitivo, a eomineiare dal preambolo. 11. PROGETTO

TESTO DEFINITIVO

I. La sovranitit e per diritto etemo nel Resta immutato (ma viene pubblicato, co me Popolo. 11 Popolo dello Stato romano e si vedra, senza I'ultima parola: pura). costituito in Repubblica democratica pura. 11. 11 regime democratico ha per regola Resta immutato. l'uguaglianza, la libertit, la fratemitit. Non riconosce titoli di nobiltit, ne privilegi di nascita 0 casta.

ill. La Repubblica romana eura Viene sostituito col seguente: La Repubbliea l' educazione di tutti i eittadini, a [me colle leggi e colle istituzioni promuove il

di migliorare la loro eondizione coll' miglioramento delle eondizioni morali e industria, colla fatiea, coll'ingegno. materiali di tutti i cittadini. IV. La Repubblica risguarda tutti i Resta immutato. popoli come fratelli; rispetta ogni nazionalitit;J'fC)pugna I'italiana.

v. I Mwlieipii hanno tutti uguali Resta immutato. diritti; la loro indipendenza non e limitata ehe dalle leggi di utilitit tmiversale.

63

Rodelli, La Repubbliea, p. 287.

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L'wliformitil e il principio Viene sostituito col seguente: La piu equa regolatore deI riparto territoriale de11a distribuzione possibile degl' interessi locali, Repubblica. in armonia co11' interesse politico de110 Stato, e la norma deI riparto territoriale della Repubblica. VI.

VIl. La Religione cattolica e la Viene soppressa la prima proposizione. La Religione dello Stato. Dalla credenza seconda resta immutata. religiosa non dipende l' esercizio dei diritti civili e politici. vm. 11 Capo de11a Chiesa cattolica Resta immutato. avra dalla Repubblica tutte le guarentigie necessarie per l' esercizio indipendente deI potere spirituale.

Poche, dunque, effettivamente, nel preambolo le modifieazioni, ma di grande importanza. La principale indubbiamente la soppressione deI primo eomma dell'artieolo VII, ehe aceettava il prineipio della "religione di Stato". 11 perehe di una tale diehiarazione - gia eontenuta, eome si rieordera, nel primo testo, fu spiegato dal Gabussi - riferendo ehe l'intento della Commissione redattrice deI progetto era stato di vanifieare le ealunnie laneiate eontro la Repubblica circa una sua volonta di "atterrare" il Cattolieesimo. 64 La diseussione fu su questo punto molto animata. Si trattava di una grande questione di prineipio Ce appena il easo di notare ehe in gioco non era "un principio astratto della liberm dei eulti"6~) e, insieme, di una questione di alta politiea. E per questo ehe vi fu anehe una eerta eonfusione delle lingue, e argomenti di sapore eonfessionale si incrociarono eon argomenti liberaldemocratiei nel sostegno di tesi opposte. 66 Non sembra, per, diseutibile la sostanziale eonvergenza delI' Assemblea nell'affermare la piu piena liberta religiosa e nell'intento di togliere allo Stato romano qualsiasi carattere di eoloritura eonfessionale e di ridurre il Papato all'esercizio della sola autorita morale e religiosa di eui era titolare. Ed in questo senso ehe risulta giustificato sostenere ehe "eon l'artieolo VII si era implicitamente affermato il prineipio dell'agnostieismo dello Stato", mentre l'affermazione ehe "nessun influsso diretto ebbe sulla diseussione l'impostazione teistiea data da Mazzini alla politica ecclesiastica deI Triumvirato" va temperata rieonoscendo ehe gli eehi della religiosita e dello spiritualismo mazziniano furono forti. 67

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Assemblee, Roma, vol. IV, p. 967. La Repubblica, p. 296. 66 E' Wla pertinente osservazione di Achille Battaglia, citata ivi, p. 295. 67 Ivi, p. 297. 64

6' Rodelli,

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Va pure rieonoseiuto, inoltre, ehe - Mazzini 0 non Mazzini - uno spirito di aha preoceupazione morale e una sensibilita non mediocre alle questioni di eoscienza e alle esigenze di un' autentiea spiritualita non manearono affatto nella diseussione dell' Assemblea. Ha un suo valore il fatto ehe quasi tutti quell i ehe intervennero a sostenere il testo della Commissione sulla "religione dello Stato" motivarono la loro posizione eome dettata dalla preoceupazione di sostenere l'interesse della Chiesa a non dipendere dal potere politico. Ne e traseurabile ehe dalla stessa parte si rieordasse ehe non si trattava di "dare una eostituzione ad un popolo vergine di ogni anteeedente, di ogni tradizione religiosa", fino al punto ehe quaIcuno traeva motivo da eio per negare ehe fosse opportuna una totale liberta di eulto. Alla fine, eomunque, la formulazione adottata per l' artieolo VII deI preambolo ando oltre il piano dell'alternativa tra il puro e sempliee agnosticismo e il suo eontrario e, in eonnessione eon il sueeessivo articolo VIII, diede luogo, a nostro avviso, a una professione di ehiaro segno liberale: "la religione voglio totalmente libera ed indipendente",61 proclamava l' Audinot, affacciando un eoneetto ehe si puo definire eavourriano della liberta religiosa ed eeclesiastiea e ehe non neeessariamente si esaurisee nella sola separazione tra la sfera della Chiesa e quella dello Stato. Pur se non eguale intensita e vigore, anehe la questione dei earattere democratico proclamato per la Repubbliea fu dibattuta eon sagacia. Il punto in diseussione era se avesse senso parlare di "democrazia pura" inveee ehe solo di "democrazia". La formula della "democrazia pura" era gia stata adottata nel "documento fondamentale" eon il quale nella seduta dell'8 febbraio era stata diehiarata la deeadenza deI potere pontifieio e proclamata l'istituzione della Repubbliea. Allora non aveva molto attratto I'attenzione dei eostituenti. Nella diseussione dei testo eostituzionale il Senesi feee, inveee, osservare ehe a suo avviso per "democrazia pura" bisognava intendere "quella forma di governo

61 Assemblee, Roma, vol. IV, p. 968. La tendenza autentieamente separatista fu espressa dal Bonaparte: ,,non voglio - egli affermava - ehe un veseovo, ehe un eurato sia sottoposto ad aleun superiore temporale nell'esereizio dei eulto, e molto meno ehe possa aver pretesti per intromettersi nelle eose pubbliche io vengo a reclamare la separazione, la indipendenza vera dei due poteri, 10 spirituale di 13 eiltemporale di qua" (iv~ p. 966). Non eondividerei, quindi, il giudizio di Ferri, Costituente e eostituzione, p. 33, secondo il quale "il Bonaparte [00'] fmi eon l'essere il trionfatore delle due giomate" in eui si diseusse della questione ecclesiastiea. Evero, invece, ehe il prineipio della liberta di culto anehe in pubblieo pote essere introdotto solo in modo ueito e implieito" e ehe "preoceupazioni di politiea contingente pesarono notevolmente nel eorso della diseussione", ma anehe eomprensibilmente, eonsiderando ehe, "eome ebbe a dire il Salieeti, si era [00'] in un'epoea di ritomo in forza dei valori eristiani e di ripresa di prestigio e di autorita deI pontefiee eome eapo della Chiesa" (ivi, p. 32).

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democratieo di eui partecipa tutto il popolo, non esclusa l'infima plebe".69 11 Filopanti, autore deI testo approvato 1'8 febbraio, ritenne opportuno

precisare il vero senso di tali parole: Demoerazia, eome porta l'etimologia, e il govemo deI popolo. Ora hannovi eerte forme di govemo, ove l'elemento popolare ha ben si la preponderanza, ma non il potere totale nel govemo medesimo qual e appunto la monarehia eostituzionale; quindi demoerazia pura signifiea quella forma di govemo dove ogni potere emana direttamente dal popolo e dove il potere medesimo e esereitato dai rappresentanti deI popolo. E quindi intendesi la differenza da una repubbliea demoeratiea pura a una repubbliea ehe non sia detta tale, poiehe puo essere repubbliea qualunque forma di govemo ove molti eomandano. Ma se vi sia l'elemento aristoeratieo, CJnuantunque non sia preponderante, non sani piu una repubbliea demoeratiea pura.

Nel prosieguo della diseussione fu il Salieeti a rispondere a eoloro ehe ehiedevano la soppressione deI solo aggettivo "pura" 0 addirittura ehe si sopprimesse l'intera espressione "democratiea pura", e queste in base alla presunzione ehe l'idea stessa di repubbliea eomprendeva in se queste determinazioni. Egli riehiamo al dato di fatto ehe "democrazia pura" appariva gia nel documento dell'8 febbraio e disapprovo eome eosa non di "molto senno" ritrattare quanta era ,,gia aequisito pel popolo". ,,Repubbliea democratiea pura" era ben detto, perehe "non basta aeeennare a governo repubblieano per esprimere un governo popolare. Repubbliea altro non signifiea ehe la eosa pubbliea. Quindi repubbliea e sinonimo di governo e sinonimo di Stato [.. .]. 11 norne di repubbliea dunque puo signifieare anehe una monarehia, [eome aeeade in Romagnosi, e] il dire semplieemente repubbliea non indiea se sia aristocratica 0 democratiea. " E, se neeessaria per la Repubbliea era la speeifieazione di "democratiea", non meno neeessaria era quella di "pura" a evitare ogni intenzione 0 risehio di ,,forma mista di governo" (nel sense ehe possiamo dire aristotelieo deI termine).71 L' Agostini aggiunse ehe "pura" doveva essere mantenuto per ovviare ai frequenti abusi deI termine "democrazia". 72 Le prineipali obiezioni provennero dal Ballanti. Nel documento dell'8 febbraio ,Ja parola democrazia pura era la regola di ragione ehe doveva informare tutta la eostituzione, non doveva essere un epiteto della Repubbliea, ma doveva esserne l'anima". Inoltre, pura "in bocea di alcuni ehe professano teorie eomunistiehe 0 le multiformi specie di socialismo e parola usata eome segno di uguaglianza di beni, di uguaglianza di salari, di eomunione di vita", e

69 lvi, p. 859. 70

lvi, p. 861.

72

lvi, p. 910.

71 lvi, pp. 907-908.

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andava quindi evitata. Alla fine il testo fu approvato il 24 giugno nella formulazione proposta dalla Commissione. 73 Come, allora, e accaduto che nel testo definitivo promulgato in Campidoglio il 3 lugli074 l'aggettivo pura risulta espunto? Il problema non appare sollevato quasi mai dagli studiosi" ed importante, tuttavia, come facile intendere, per molte ragioni, dato, se non altro, il significato sociale che all'aggettivo era stato annesso neHa discussione. Si puo solo supporre che si sia trattato di un errore materiale di omissione nella preparazione deI testo che fu promulgato, che, comunque, non toglie interesse aHa discussione di cui si sono riportati gli elementi essenziali.

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CoHegata a quella sulla "democrazia pura" fu, in qualche modo, la discussione sull'articolo 3 della proposta della Commissione. Due punti vi ebbero particolare rilievo. Il primo riguardo i compiti dello Stato in materia di promozione deI miglioramento delle condizioni sociali "di tutti i cittadini", come il Filopanti affermo in un emendamento da lui presentato, ma in realtä (com'egli implicitamente quanto trasparentemente intendeva) soprattutto deI ceti piu disagiati. 76 Il suo emendamento fu in sostanza approvato, ma si tolse l' educazione tra le vie da praticarsi a tal uopo da parte dello Stato, limitando tali vie alle leggi e alle istituzioni, e si trasformo il "cura" delI' emendamento nel "promuove" deI testo definitivo. In tal modo - stato notato - "l'ereditä di Mario Pagano, l'ideale della legge civile, aveva conteso il passo alla fiducia mazziniana nell'educazione".77 Si ripeteva qui il contrasto gia manifestato nella discussione sul documento (il "decreto fondamentale") dell'8 febbraio, quando, come si visto, egualmente "la tradizione deI pensiero politico meridionale deI Settecento aveva assorbito nel suo alto moralismo quelle esigenze sociali che venivano poste innanzi COfile istanze di democrazia sostanziale".71 Non sembra, pero, che il riferimento al pensiero meridionale deI Settecento, per quanto fondato possa essere, colga tutto il senso deI problema in discussione e tutti i suoi riferimenti storico--sociali.

e

e

Ivi, p. 912. Ivi, p. 1076. " Fa eceezione Fern, Costituente e costituzione, p. 18, con la eui opmlOne concorda la nostra. pur diligente ebene informato Rodelli (La Repubbliea, p. 288) afferma senz'altro ehe "dal testo deI progetto fu tolto soltanto, corno superfluo, l'appellativo ,pura' riferito a ,repubblica democratica"'. Ma alluogo citato alla nOstra nota precedente si dice, senza possibilita di equivoco: ,,Presidente: Essendo rigettati gli ammendamenti, si pone a voti la seconda parte deI 10 articolo come redatto dalla Commissione: Popolo dello Stato romano eostituito in Repubbliea demoeratica pura' (posta a voti, ammessa)." 76 Assemblee, Roma, vol. IV, pp. 920-921. 77 Rodel/i, La Repubblica, p. 290. 71 Ibid. 73

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Nell'emendamento Filopanti l' Audinot vedeva riflesse le "teorie assolute intorno al diritto allavoro e alla sussistenza" ehe si erano viste in Franeia e in tutta Europa; e ad esse si doveva, a suo giudizio, "eome a eagione prima, quella reazione generale da eui tutte le nazioni sono miseramente afflitte".79 I1 Filopanti replieo ehe nella eostituzione franeese deI 1848 figurava un artieolo equivalente a quello da lui proposto eol suo emendamento, ma es so era stato votato e approvato dalla Costituente franeese dopo "le sanguinosissime insurrezioni di maggio e di giugno", sieche si doveva ritenere ehe non si era "ereduto ehe quell'articolo eontenesse il germe di seonvolgimenti sociali". L' Audinot feee allora presente ehe ,,Louis Blane aveva gia formulati questi principii il 22 febbraio e li aveva attuati"; e il Filopanti torno a replieare ehe il Blane aveva "sostenuto il diritto allavoro", ossia un prineipio diverse e ben piu rilevante, teoricamente e socialmente, di quelle da lui proposto di sempliee solidarieta e assistenza sociale. 'o E, dunque, la materia deI eontendere si riferiva a dibattiti e a eoneezioni di stringente attualita allora - meta deI seeolo XIX - ehe riflettono una situazione politico-sociale e eulturale non governabile eon le idee deI seeolo XVIII, per quanto presenti esse potessero essere agIi uomini deI 1849 romano. L'intervento deI Ballanti, ehe ehiese la divisione dell'emendamento Filopanti in due parti, 10 dimostra aneora di piu. L'emendamento - disse "presenta due eoneetti: uno il dovere deI Governo di assicurare la sussistenza per mezzo dellavoro ai eittadini neeessitosi, e l'altro di sussidiare eoloro ehe non ne possono avere dalle famiglie e ehe sono impotenti allavoro". 11 primo gli appariva "perieoloso" e "inutile"; e, benehe Filopanti parlasse di "procurare il lavoro" e non di una "proclamazione deI diritto al lavoro", sembrava al Ballanti di dover aborrire "anehe da tutte quelle idee" ehe "aprono l'adito" a una tale proclamazione, "tanto piu - aggiungeva - ehe noi non abbiamo a soffrire la piaga de'proletari dell'industria": notazione, quest'ultima, di evidente e grande interesse. I1 seeondo eoneetto dell'emendamento era diverso e si riassumeva, al limite, nella domanda: "si dovra dire forse ehe una Repubbliea democratica pura finisee eol negare il sussidio ai cieehi, agIi storpi, ai dementi?"n

e

Un dibattito assai aceeso e relativamente lungo si svolse sull' ordinamento munieipale, non perehe non venisse generalmente aeeettato ehe i munieipii eostituissero eellule essenziali deli' ordinamento democratieo,12 bensi perehe si 79 Assemblee, Roma, vol. IV, p. 924.

lvi, p. 927. lvi, pp. 927-928. 12 Fern, L'idea di Stato, p. 64, mette opportWlamente in rilievo ehe nella prassi di govemo della Repubbliea "il prineipio dell'autogovemo mWlieipale trovo larga applieazione". Tra l'altro, gia nel gennaio le amministrazioni eomWlali erano state 10

11

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divergeva, in generale, sulla piu funzionale formulazione di tale prineipio. Uno degli interventi al riguardo piu interessanti fu eerto quelle delI' Audinot, in polemiea eol Ballanti, il 24 giugno. Se gloriosa - ogli affermo - fu la parte deI Munieipio nella storia passata italiana, nella storia futura la parte deI Munieipio sara aneor piu grande ed effieaee di positivi e soeiali risultati [.. .]. Gran parte delle istituzioni soeiali, dieo soeiali ( non ho paura deI norne), quelle istituzioni ehe si ehiamano di previdenza, di eredito, d'asilo, d'istruzione tecniea, quelle ehe eomprendono infme l'immensa sfera della mutualitil, debbono trovare fondamento nel munieipio [... ]. 11 Munieipio sani ehiamato nell'avvenire forse a poea estensione di vita politiea ma a grandissimo sviluppo in tutto eio ehe riguarda le istituzioni soeiali. 83

Il 25 giugno Audinot affermava aneora ehe, "mentre i Munieipi si presentarono nella nostra storia passata eome dotati di politiea indipendenza, oggi sono [... ] unieamente ridotti alla funzione di maeehine amministrative". Egli si opponeva, appunto, a eoloro ehe in tale sola funzione volevano mantenerli. 84 E eon gli stessi eriteri si opponeva pure a eoloro ehe pensavano a una delimitazione delle eireoserizioni provineiali della Repubbliea fondata su una uniformita ehe assieurasse "uguaglianza nei eariehi e nelle imposte", anziehe a una ripartizione ehe tenesse eonto insieme della geografia, deli' eeonomia edella storia. I~ Anehe il Bonaparte toeeo, tuttavia, punti importanti, affermando in particolare ehe, non rispettando i munieipi, "base prineipale della nostra libertil", si sarebbe inevitabilmente andati "a quella fatale eentralizzazione franeese, causa di tutte le sventure, di tutte le attuali vergogne di quel vicino paese".16 Le resistenze a una eonsistente autonomia muni ci pale vennero motivate eon argomenti piu deboli, eome quelli ehe faeevano perno sul risehio di un partieolarismo muni ci pale ehe portasse a una federazione di repubbliehette l7 oppure sulla traseendenza della nazione rispetto al munieipio eosi eome di future federazioni di popoli sulle nazioni u . ,,L'ultimo dibattito d'ampio respiro si ebbe intorno al prineipio della liberta di insegnamento" il 28 e 29 giugnO.19 Questo principio non figurava nel teste proposto dalla eompetente Commissione. La sua introduzione fu riehiesta sulla seorta di quanta aveva fatto, eon altro spirito, la Costituente franeese dell'anno riorganizzate su base elettiva, anehe se "l'elettorato attivo amministrativo non era universale eome quello rieonoseiuto per la Costituente" (ivi, p. 64). 13 Assemblee, Roma, vol. IV, p. 931. 14 lvi, p. 937. I~ lvi, p. 945. 16 lvi, p. 939. 17 lvi, p. 932 (parlava il Mariani). U lvi, pp. 940-941 (parlava il Lizabe Ruffoni, ehe seguiva in eio una ispirazione ehiaramente mazziniana). 19 Rodelli, La Repubbliea, p. 297.

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precedente. n dibattito fu condizionato indubbiamente dal fatto ehe non si aveva in ltalia, e nello Stato Pontificio in particolare, l'esperienza dalla quale in Francia era ispirato l'interessamento a quelle articolo, e cioe la contrapposizione tra il monde scolastico laico (soprattutto al suo vertice, l'universita napoleonica e post-napoleonica) e le attivita ecclesiastiche di istruzione e di formazione. Lo rivelo con precisione il Bonaparte, ricordando ehe i Gesuiti volevano Ia schiaviril dell'insegnamento in Roma e la liberta deI medesimo in Francia, perehe qui gli giovava una cosa, oltremonte gliene giovava un'altra. Dopo quest'arma a due tagli, e dopo gli scandalosi effetti deI monopolio universitario francese, e ben difficile decidere se un paese libero debba usare la sua repubblicana influenza sull'insegnamento pubblico, 0 se piuttosto Ia debba Iasciare ai Municipi, ai cittadini. 90

L'introduzione fu, comunque, accolta. Poi dawero manco la possibilita materiale di proseguire la discussione e il testo della costituzione fu approvato di gran carriera. Rispetto al progetto, nell'articolo 1 il lasso di tempo deI domicilio necessario per la concessione della cittadinanza ad altri italiani fu ridotto da tre anni a sei mesi. All'articolo 2 tra le cause di perdita della cittadinanza si aggiunsero il "servizio militare presso 10 straniero" e la "condanna giudiziale"; si tolse "l'accettazione di titoli conferiti dallo straniero". Dopo l'articolo 7 se ne introdusse uno nuovo, ehe fu dunque 1'8, cosi formulato: ,,L'insegnamento e libero: Le condizioni di moralita e capacita, per chi intende professario, sono determinate daUa legge." AlI'articolo 9 deI progetto, ehe divenne il 10 deI testo definitivo, invece di dirsi ehe "il diritto di petizione e di ciascuno e di tutti", si dice ehe "esso puo esercitarsi individuaimente e collettivamente". All'articolo 20 deI progetto, 21 deI teste definitivo, il termine deI rinnovo delI' Assemblea dei rappresentanti deI Popolo fu abbassato da 4 a 3 anni. L'articolo 62 deI progetto, volendo evitare ehe il potere esecutivo si awalesse dell' esercito per imporre la sua volonta nello Stato e nella societa, suonava cosi: ,,L'armata di linea istituita per vegliare sulla sicurezza esterna dello Stato avra i suoi alloggiamenti alle frontiere, ne i Consoli potranno richiamarla neU'interno senza un decreto delI' Assemblea." Ritenendosi, pero, non meno pericoloso concentrare l'intero esercito sulle frontiere e lasciare nel reste deI paese la sola Guardia Nazionale, esso divenne l'articolo 60 deI teste definitivo, cosi formulato: ,,La distribuzione de' corpi di linea e la forza dell'interne guarnigioni sono determinate dall' Assemblea, ne possono subire variazione 0 traslocamento, anche momentaneo, senza di lei consenso." All'articolo 57 (59 deI progetto) fu tolta la restrizione "in caso di bisogno" all' arruolamento dell'esercito in altro modo ehe quelle volontario, lasciando cosi maggiore 90

Assemblee, Roma, vol. IV, p. 1015.

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liberta all' Assemblea. Si ebbero infine qualche aeeorpamento di articoli e qualehe eorrezione 0 mutamento di forma. Il "modello di Stato laico, de~ocratieo, repubblieano,,91 ehe venne fuori dalle disposizioni della eostituzione eosi redatta e approvata si fonda su "un insieme di norme tutelatriei della liberta assai piu ampio e preciso di quelli delle altre eostituzioni [italiane] deI '48".92 In breve, i suoi 69 artieoli precisavano i diretti e i doveri dei cittadini, dichiaravano inviolabili la proprietit e le persone, garantivano la libertit dell'individuo, della stampa e dell'associazione. A tutela degli abusi, stabilivano I'inviolabilitit dei domicilio, il segreto epistolare, la illegittirnitit di corti 0 commissioni eccezionali. Proibivano la censura, riconoscendo la libertit di pensiero, di insegnamento, di stampa; riconoscevano, infme, il diritto di petizione e abolivano la pena capitale. Gli organi fondamentali dello Stato erano l' Assemblea, e1etta a suffragio universale e pubblico, per la durata di tre anni; il Consolato, composto di tre persone e incaricato dei ~otere esecutivo; l' ordine giudiziario, specialmente garantito nella sua indipendenza. 3 Piu in dettaglio, la eostituzione prevedeva il divieto della eareerazione per debiti ("nelle materie eivili il vero fratello della tortura", eome 10 defini il Salieeti,94 e prineipio ehe sarebbe stato aceolto in altre legislazioni europee solo alquanti anni dopo) , il par lamento unicamerale eomposto dalla sola Assemblea, l'immunita parlamentare e l'indennita non rinuneiabile assegnata ai parlamentari, I' iniziativa legislativa riconosciuta ai eonsoli (eletti dall' Assemblea) oltre ehe all' Assemblea stessa, l'obbligo di una doppia lettura a distanza almeno di otto giorni delle proposte di legge da approvare (ehe eompensava l'unicita dell' Assemblea), l'elettorato attivo a 21 e quello passivo a 25 anni, la durata triennale deI Consolato eome quella dell' Assemblea, un governo di sette ministri nominati dai eonsoli e eon diritto di parola nell' Assemblea, la responsabilita dei ministri e dei eonsoli, un Consiglio di Stato di 15 membri nominati dall' Assemblea eon eompiti di eonsulenza ai eonsoli e al governo e di redazione di regolamenti su eommissione dell' Assemblea, il giudice di pace per i giudizi eivili, la giuria popolare nei processi penali, il Tribunale per i eonsoli e i ministri, la nomina dei generali dell'esereito da parte dell' Assemblea, la formazione di una Guardia Nazionale, norme specifiehe per la revisione eostituzionale. Un disegno eostituzionale, dunque, lucido e eoerente, nel eomplesso, molto di piu di quanto ci si sarebbe potuto aspettare - oltre ehe dalle eondizioni e dai ritmi in eui si fu eostretti a lavorare - dalla molteplieita degli orientamenti politico-ideologici presenti nella Costituente. E vero ehe questi moltepliei Soldani, Illungo Quarantotto, pp. 348-349. Candeloro, Storia dell'Italia moderna, vol. m, p. 458. 93 Di Nolfo, Storia dei Risorgimento, vol. VII, pp. 550-551. 94 Assemblee, Roma, vol. IV, p. 1007. 91

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orientamenti si muovevano pur sempre nell' ambito di un indirizzo generalmente democratieo. 9' Come, pero, si e visto dalle diseussioni dell'assemblea di eui abbiamo riferito, non solo I'indirizzo democratieo non era eselusivo, ma non poco diverse erano pure le "seuole" di pensiero democratieo ehe orientavano i eostituenti. D'altra parte, e diffieile evitare di ritenere ehe ad assicurare la lucidita e la eoerimza dei disegno eostituzionale romano abbia eontribuito il fatto ehe i eostituenti avevano ben presente il modelle franeese dei 1848, di eui abbiamo gia piu volte fatto eenno. Un raffronto tra i due testi 10 mostrera meglio. COSTITUZIONE FRANCESE

9. L'insegnamento e libero. La Iiberta di insegnamento si esereita secondo Ie eondizioni di eapaeita e di moralitil determinate dalla Iegge e sotto la sOlVeglianza dello Stato. Questa sOlVeglianza si estende a tutti gli stabilimenti di edueazione e d'insegnamento senza alcuna eceezione.

COSTITUZIONE ROMANA

8. L' insegnamento e libero. Le eondizioni di moralita e eapaeita, per chi intende professario, sono determinate dalla legge.

25. Sono elettori, senza eondizione di 17. Ogni eittadino, ehe gode i diritti eenso, tutti i Franeesi di 21 anni e eivili e politiei, a ventuno anni eelettore, a ventieinque eleggibile. godenti dei loro diritti eivili e politiei. 26. Sono eleggibili, senza eondizioni di domieilio, tutti gli elettori di 25 anni.

31. L' Assemblea nazionale e eletta per 21. L'Assembiea [... ] si rinnova ogni tre anni. tre anni; e si rinnova per tre anni [.. .]. 32. [L' Assemblea] fissa l' ammontare 22. L'Assemblea [... ] dispone della forza delle forze armate stabilite per la sua armate di eui eredeni aver bisogno. sieurezza e ne dispone. (continuazione)

9'

Di qui a parIare, per Ia earta romana, di ,,motivi assoluti di razionalita ehe ad essa sovrastanno" e di "quella, in altri termini, visione dei mondo ehe manifestamente ne informa gli elementi diehiarativi" (Lupi, La Repubbliea, p. 6) eorre molto, anzi troppo. E, tuttavia, rappresenta una earenza eritiea anehe piu grave il preseindere totalmente dalla eonvergenza dei eostituenti, non oeeasionale, ne dei tutto episodiea, in un ambito piuttosto defmito di pensiero politieo, ehe eoneorre a dare alla eostituzione romana la sua linearita, eoerenza, vigore.

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(continuazione)

32. [L'Assemblea) e pennanente. Tuttavia, pul> aggiomarsi ad una data ehe essa fissa. Durante Ia durata della proroga una eommissione, eomposta dai membri dell'u1lieio di presidenza e da 25 rappresentanti nominati dall' Assemblea a serutino segreto ed a maggioranza assoluta, ha il diritto di eonvoearla in easo di urgenza. Il Presidente della Repubbliea ha anehe il diritto di eonvoeare l' Assemblea.

23. L'Assembiea e indissolubile e pennanente, salvo il diritto di aggiomarsi per quel ehe eredera. Nell'intervallo pul> esser eonvoeata sull'invito deI presidente co' segretari, di trenta membri 0 deI Consolato.

40. Per Ia validita deI voto delle Ieggi e 24. [L'Assemblea) non e legale se non necessaria Ia presenza della meta piu uno riunisee Ia meta piu uno de' suoi dei membri delI' Assemblea. rappresentanti [... ). 39. Le sedute delI' Assemblea sono 25. Le sedute delI' Assemblea sono pubbliche. Tuttavia, I' Assemblea pul> pubbliche. Pul> eostituirsi in eomitato segreto. riunirsi in eomitato segreto [... ). 36. I rappresentanti sono inviolabili. Essi non potranno essere rieereati, accusati, ne giudieati in aleun tempo per Ie opinioni ehe avranno emesse nel seno delI' Assemblea nazionale.

26. I rappresentanti deI Popolo sono inviolabili per Ie opinioni emesse nell' Assemblea, restando interdetta ogni inquisizione.

37. [I rappresentanti) non possono essere arrestati per materie eriminali, salvo il easo di flagrante delitto, ne inquisiti, se non dopo ehe l'assemblea 10 avra pennesso. Nel easo di arresto per delitto flagrante, si fara immediatamente relazione all' Assemblea, ehe autorizzera o rifiutera la eontinuazione delI' inquisizione. Questa disposizione si appliea nel easo in eui un eittadino detenuto enominato rappresentante.

27. Ogni arresto 0 inquisizione eontro un rappresentante e vietato senza pennesso delI' Assemblea, salvo il easo di delitto flagrante. Nel easo di arresto in flagrante di delitto, l' Assemblea, ehe ne sara immediatamente infonnata, detennina la eontinuazione 0 eessazione deI processo. Questa disposizione si appliea al easo in eui un eittadino eareerato sia nominato rappresentante.

38. Ciaseun rappresentante deI Popolo 28. Ciaseun rappresentante deI Popolo rieeve un'indennita alle quale non pul> rieeve un indennizzo, eui non pul> rinuneiare. rinuneiare. 39. [... ) Ogni rappresentante ha il diritto 29. La proposta delle leggi appartiene ai di iniziativa parlamentare; egli rappresentanti e al Consolato. l' esereitera secondo Ie fonne detenninate dal regolamento. 40. [11 presidente della Repubbliea) ha il diritto di fare presentare dei progetti di legge all' Assemblea da ministri.

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Repubbliea 35. Vi sono sette ministri di nomina deI Consolato.

67. Gli atti deI Presidente della Repubbliea, ad eceezione di quelli eoi quali nomina e revoea i ministri, non hanno effetto se non sono eontrosegnati da un ministro.

38. Gli atti de' Consoli, fmehe non sono eontrassegnati dal ministro inearieato dell'esecuzione, restano senza effetto. Basta la sola firma de' Consoli per la nomina e revoeazione de' ministri.

69. 1 ministri hanno ingresso nell' 40. I ministri hanno il diritto di parlare Assemblea nazionale; sono aseoltati tutte all'Assemblea sugli affari ehe li riguardano. le volte ehe 10 domandano [00.]. 63. [11 Presidente della Repubbliea] risiede nel luogo ove ha la sede l' Assemblea nazionale e non puo useire dal territorio eontinentale della Repubbliea senza esservi autorizzato da una legge.

62. [11 Presidente della Repubbliea] e alloggiato a spese della Repubbliea e rieeve uno stipendio di 600.000 franehi all'anno.

41. I Consoli risiedono nel luogo ove si eonvoea l' Assemblea, ne possono useire dal territorio della Repubbliea senza una risoluzione delI' Assemblea, sotto pena di deeadenza. 42. [1 Consoli] sono alloggiati a spese deUa Repubbliea e eiaseuno rieeve un appuntamento di scudi tremilaseieento all'anno.

68. n presidente della Repubbliea, i 43. 1 Consoli e i ministri ministri, gli agenti diplomatiei e responsabili. depositari dell'autorita pubbliea sono responsabili. 87. 1 giudiei di prima istanza e d'appello, i membri della Corte di Cassazione e della Corte dei Conti sono nominati a vita. Essi non possono essere revoeati 0 sospesi ehe eon un giudizio, ne mesi a riposo se non per le eause e neUe forme determinatedalla legge.

81. La giustizia e amministrata gratuitamente in norne deI Popolo franeese. 1 dibattimenti sono pubbliei, a meno ehe la pubblieita non sia dannosa per l'ordine e per i eostumi; ed in questo easo il tribunale 10 diehiarera eon una sentenza.

sono

50. Nominati da' Consoli ed in eonsiglio de' ministri, [i magistrati] sono inamovibili; non possono esser promossi, ne trasloeati ehe eon proprio eonsenso; ne sospesi, degradati 0 destituiti se non dopo regolare procedura e sentenza. 51. La giustizia e amministrata in norne deI Popolo pubblieamente, il tribunale, a causa di moralita, puo ordinare ehe la diseussione sia fatta aporte ehiuse.

82. Il giuri eontinuera ad essere applieato 53. La istituzione dei giudici deI fatto in materia eriminale. determinata da legge relativa.

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(continuazione)

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92. L'Alta Corte eomposta di einque giudiei e di trentasei giurati. Ogni anno [... ] la Corte di Cassazione nomina fra i suoi membri [... ] i giudiei deli' Alta Corte [... ]. I magistrati ehe hanno le fimzioni deI pubblieo ministero sono designati dal presidente della Repubbliea e, in easo di aeeusa deI presidente 0 dei ministri, dall' Assemblea nazionale. I giurati [... ] sono presi tra i membri dei eonsigli generali dei dipartimenti. I rappresentanti dei Popolo non ne possono far parte. 97. La diehiarazione deI giuri ehe eolpevole deve essere approvata a maggioranza di due terzi di voti.

l' aeeusato

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55. Un TribWlale supremo di giustizia giudiea, senza ehe vi sia luogo a gravame, i eonsoli ed i ministri messi in istato di aeeusa: 11 TribWlale supremo si eompone deI presidente, di quattro giudiei piu anziani della Cassazione e di giudiei deI fatto, tratti a sorte dalle liste annuali, tre per eiaseWla provineia. L' Assemblea designa il magistrato ehe deve esereitare le fimzioni di pubblieo ministero presso il TribWlale supremo. E d'uopo della maggioranza di due terzi di suffragi.

103. L'organizzazione della Guardia 56. L'ammontare della forza stipendiata nazionale e la eostituzione deli' armata di terra e di mare e determinata da Wla saranno regolate dalla legge. legge [... ]. 107. NessWla truppa straniera pUD essere introdotta sul territorio franeese senza il preliminare eonsenso deli' Assemblea nazionale.

58. NessWla truppa straniera pUD essere assoldata, ne introdotta nel territorio della Repubbliea senza decreto deli' Assemblea.

L' ampia comparazione tra i due testi mostra indubbiamente una certa dipendenza del teste romane da quelle francese, ma non permette in alcun modo di considerare il prime come una imitazione deI secondo. 96 Gift vi sono differenze normative notevoli. Per citare le piu importanti, la costituzione francese aveva limitato l'abolizione della pena di morte ai soli reati politici (art. 5); aveva bensi stabilito (art. 28) l'incompatibilitil tra il mandate parlamentare e qualsiasi funzione pubblica retribuita, ma aveva anche rimandato (art. 27) alla legge elettorale per la privazione dell'elettorato attivo e passivo, mentre la romana, al riguardo, taceva; aveva dichiarato (art. 24) la segretezza deI voto degli elettori contro la pubblicitil sancita (art. 20) aRoma; aveva attribuito (art. 53 e 54) un forte potere al presidente della Repubblica in materia di trattati internazionali, di pace e di guerra, sia pure a condizione 96 Si veda, per Wl esempio di questo giudizio, aneora molto diffuso, la frequenza eon eui il Corlese, La Costituzioni italiane, nel suo eommento alla eostituzione romana (pp. 109-114) afferma ehe moltissimi artieoli di quest'ultima sono eopia 0 traduzione di artieoli della earta franeese.

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dell'approvazione dell' Assemblea, mentre quella romana aveva affidato questa materia soltanto all' Assemblea; aveva fissato (art. 41) l'obbligo di una triplice deliberazione a intervalli di non meno di einque giorni inveee della lettura dupliee ad almeno otto giorni riehiesta (art. 31) aRoma; in materia di promulgazioni delle leggi votate dall' Assemblea assegnava (art. 58) al presidente della Repubbliea il potere di rinviarle all , Assemblea stessa, la eui seeonda decisione diventava eomunque definitiva, mentre un potere analoga non spettava ai eonsoli aRoma (art. 32), pur essende eguale la disposizione per cui alla promulgazione provvedeva in easo di inadempienza dell'eseeutivo il presidente dell' Assemblea (rispettivi artieoli 59 e 32); aveva disposto l' elezione del presidente della Repubbliea a suffragio universale e diretto da parte del eorpo elettorale ogni quattro anni, eon possibilitä di rielezione solo dopo quattro anni (art. 45 segg.), laddove i eonsoli romani erano triennali ed eletti dall' Assemblea (art. 33 e 34); aveva attribuito (art. 64) il potere di nomina dei eomandanti militari al presidente della Repubbliea, riservato in Roma all' Assemblea (art. 59); aveva specifieato (art. 85) ehe era il presidente delta Repubbliea a nominare i pubbliei ministeri, mentre la earta romana nulta diceva circa la loro nomina (art. 54). Una particolaritä romana era, inoltre, il fatto ehe le leggi fossero promulgate "in norne di Dio edel Popolo" (art. 32), anziehe in norne soltanto dei popolo: una partieolaritä - superfluo notarlo - di sehietta matriee mazziniana. Sembrano, percio, da rieonoseere davvero alta earta eostituzionale romana del 1849 i pregi di una non eomune eoerenza e di un pensiero politieo avanzato, ma non avventato e, anzi, molto attento a eoneiliare i prineipii eon i eriteri dell'attualitä edella possibilitä. Il Ruseoni, ehe aveva vissuto l'esperienza delta Repubbliea Romana in posizione eminente (ne era stato il ministro degli Esteri), non sbagliava nel fissare, sia pure eoi toni ehe gli dovevano eomprensibilmente essere propri, i meriti delta earta del 1849. Tale - seriveva nel 1877 - fu la eostituzione votata da quella assemblea ehe la reazione si piaeque di qualifieare una eongrega di faziosi. Ponendola a riseontro eon altre eostituzioni ehe reggono in Europa, ehiederemo se un eerto senno politieo non fosse necessario alla formazione di questo statuto [nel eui insieme] e una semplieita, [e] traspira in ogni paragrafo, mal defmito talvolta ma sineero, un tale amore deI popolo ehe fanno di questo lavoro un'opera degna di altissima eonsiderazione [... ]. Uno dei meriti prineipali di questo statuto e, per dir eosi, di essere tutto d'un getto. In esso una meta degli artieoli non distrugge I'altra meta, eome si osservo nella eostituzione di Franeia. Questo statuto e tutto eonforme, logieo, armonioso; ha in eomune le pecehe ehe son proprie di tutte le eostituzioni; ha per se iI merito di rispondere nettamente ai bisogni dell'eta nostra, avvegnaehe qua e la ne esageri l' espressione. 97 97 Cfr. C. Rusconi, La Repubbliea Romana deI 1849, Roma 1877, p. 173. n Ruseoni era un seguaee di Proudhon, e non 10 si puo quindi sOSPettare di parlare da un punto di

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In effetti, come in generale quella "europea" deI 1848-1849, anche quella romana di allora fu una tipi ca "rivoluzione degli intellettuali". La forza della presenza, in essa, deI motive nazionale non ha bisogno di essere sottolineata, tanto e evidente e dopo quanto abbiamo detto sulla rappresentativita italiana della Roma deI 1849. E vero che l'aspetto epico della difesa della citta contro l'assedio francese, il rilievo di Garibaldi da queste punto di vista, il molo dello stesso Garibaldi nelle successive e conclusive vicende deI Risorgimento, la parziale damna/io memoriae di Mazzini da parte di un'opinione in cui la prevalenza monarchica e moderata era fortissima, la identificazione totale e senza residui della Repubblica Romana edel suo monde politico e ideologico col mazzinianesimo hanno a lungo e fortemente attenuato 0 fatto passare in secondo piano l'interesse per gli aspetti istituzionali, sociali, ideologici di quell'esperienza. Appena, pero, vi si efatta la dovuta attenzione, questi aspetti si sono rivelati appieno nella loro effettiva importanza e fecondita interpretativa. L'aspetto sociale, in primissimo luogo, come era anche da attendersi, dati gli interessi storiografici di gran lunga prevalenti dopo la seconda guerra mondiale. L'interpretazione della Repubblica nella chiave esclusiva di una ,,rivoluzione sociale" e certamente forzata,91 ma anche l'analisi piu equilibrata dell'azione di governo dei pochi mesi repubblicani conferma che la componente sociale di tale azione fu forte e caratterizzante. 99 Piu in ombra rimasto in un primo momente l'aspetto istituzionale, ma anch'esso stato poi oggetto di un interesse attento e diffuso, al quale ha solo nuociuto, in prospettiva critica, il precorrimento specifico, che vi si e voluto ravvisare, della costituzione italiana repubblicana di un secolo dOpo.IOO

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Tra i varii profili delI' esperienza della Repubblica Romana quelle istituzionale - e non solo per la costituzione, che fu redatta, ma non sperimentata - appare, invece, uno dei principali. Ed e proprio nella costituzione che il carattere di "rivoluzione degli intellettuali" al quale vista di "ehiesa" mazziniana. W. Maturi, Interpretazioni dei Risorgimento, p. 326, nota, peralto ehe ,,neUe eonsiderazioni generali, ehe premette aUa sua opera, il Ruseoni mostra interesse per la questione sociale, ehe, a suo avviso, oeeorrera risolvere dopo risolte le questioni di liberta politiea e di nazionalitil, ma nel eorso dei suo lavoro l'aspetto soeiale degli avvenimenti romani deUa erisi dei 1848-49 non e affatto approfondito". 91 Ci riferiamo in partieolare al benemerito lavoro di D. Demarco, Una rivoluzione sociale. La Repubbliea Romana deI 1849, Napoli 1944. Contra, ad esempio, Lupi, La Repubbliea, pp. 32 ("la earta di Roma e aneora troppo indietro nel tempo; essa non ha sensi progrediti di soeialitil, essa ignora presso ehe totalmente la eategoria economiea dei eostituzionalismo": efr. anehe pp. 51-52). 99 Si veda soprattutto la trattazione di E. Di Nolfo, Storia deI Risorgimento, vol. vrr, pp. 330-378. IOD Si vedano, ad esempio, speeialmente i lavori deI RodeUi, deI Lupi, deI Ferri ehe qui sono stati ripetutamente eitati.

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abbiamo accennato si rivela con nettezza sicuramente maggiore. Il radicamento dei costituenti nelle realta locali dello Stato Pontificio, quale si vede dalle cifre ehe abbiamo riferito circa la loro origine regionale, non toglie nulla a questa caratterizzazione. Indubbiamente essi esprimevano, anche per la loro origine, esigenze di riforma 0 di rinnovamento specifiche dei loro paese; e, come abbiamo notato in piu di un caso, nei lavori della Costituente alle condizioni dello Stato Pontificio si fece altrettanto specifico riferimento. In nessun caso, pera, questi riferimenti assunsero un tone 0 una fisionomia localistica, cosi come in nessun caso, quando si paria di problemi sociali, il tone fu quelle della lotta di classe: ehe, anzi, fu esplicito il rifiuto della pura considerazione di classe, e perfino ci si compiacque di constatare ehe la Repubblica non si trovava di fronte ai problemi sociali di altri paesi gia investiti dalla ,,rivoluzione industriale". In altri termini, anche in quanta esprimevano istanze sociali, cosi come nel rappresentare l'istanza nazionale italiana e nel considerare la loro Roma repubblicana e democratica un ponte verso I'affermazione dei movimento nazionale in tutta I'Italia, i costituenti, alla pari di tutti gli altri protagonisti della Repubblica Romana, tennero un comportamento da ,,intellettuali", non da puri e semplici capi sociali 0 nazionali. E ci riferiamo, particolarmente, con questa definizione e con quella di "rivoluzione degli intellettuali", all'analisi e ai giudizi ehe deI 1848 diede nei suoi noti lavori il Namier, ma non soltanto ai suoi, poiche interpretazioni analoghe 0 affini, e anche precedenti, alla sua si ritrovano, come noto, un po' in tutta la storiografia europea sul 1848 (e bastino, per l'Italia, in particolare, i nomi di Croce e di Salvatorelli).lol

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Che wol dire, dunque, in concreto, ,,rivoluzione degli intellettuali"? Bastera ricordare, per intendersi su questo punto fondamentale, ehe nell'Europa rivoluzionaria dei 1848, nel cui quadro la vicenda romana va completamente risolta, ,,il denominatore comune era ideologico, e persino letterario, e vi era nel monde intellettuale dei continente europeo un'unita e una coesione fondamentale quale suole affermarsi nei periodi culminanti dei suo sviluppo spirituale"; ehe per cia "il continente europeo reagi agli impulsi e all'intimo dinamismo della rivoluzione con una notevole uniformita, nonostante le differenze di lingua 0 di razza, nonehe di livello politico, sociale ed economico dei paesi interessati"; e ehe, ancora per cia, la revolution des c/ercs fu essenzialmente "il prodotto di un'idea morale, della ragione, della

101 Per la storiografia sul 1848 si vedano, per un prima approeeio, isaggi della Soldani sopra eitati. Una speciale importanza ha per l'Italia W. Maturi, Interpretazioni dei Risorgimento. 11 Salvatorelli al quale ci riferiamo e piuttosto quelle de La rivoluzione europea. 1848-1849, Milano-Roma 1949, ehe quelle di Pensiero e azione dei Risorgimento, Torino 1950.

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logica, del sentimento edel desiderio di un ordine migliore nel governo e nella societa".I02

n disegno costituzionale romane dei 1849 fu concepito e redatto in questa atmosfera politico--culturale. Fini, probabilmente, col giovare alla sua chiara e coerente delineazione la stessa condizione di emergenza in cui vi si dove lavorare; e fini col giovare anche il riferimento specifico - benehe tutt'altro ehe ripetitivo, come si evisto - alla costituzione francese dell'anno precedente. I tratti deI costituzionalismo dei tempo vi si riconoscono tutti: dichiarazione dei diritti, eguaglianza dinanzi alla legge e nella fruizione dei diritti, separazione e balance dei poteri, limitazione e responsabilita dei potere, garantismo, formalizzazione delle procedure per iI rispetto della costituzione e per la sua eventuale revisione, fondamento elettivo dei potere ... Ma la versione dei costituzionalismo ehe viene data nella carta romana appare improntata sia dalla forte incidenza deli' orientamento democratico prevalente nell' Assemblea, sia da una connessa sensibilita a integrare la concezione dei diritti dell'uomo nel quadro piu generale di una concezione dell'uomocittadino ehe postula iI suo dovere accanto al suo diritto.

Certo, la democrazia di cui e questione qui e ancora una democrazia politica piu ehe sociale, caratterizzata soprattutto dal suffragio universale. Ma gia il giusnaturalismo, ehe continuava a essere la principale ispirazione ideologica della maggior parte dei costituenti, viene trasceso in un' etica sociale, che non e rivelata solo dal riferimento ai doveri. E cio senza contare che - 10 abbiamo accennato - un indubbio elemento di democrazia sociale contraddistinse certamente e cospicuamente I'azione deI governo repubblicano,I03 segnando la Iinea lungo la quale i gruppi politici agenti nella Repubblica tendevano a sviluppare i risvolti sociali della costituzione ehe venivano redigendo. In generale, la cultura politica e giuridica dell'Europa iIIuministica e romantica appare ben presente ai costituenti, non solo per le facili e frequentissime trasparenze attraverso le quali essa si rivela nei dibattiti deli' Assemblea, ma anche per le esplicite citazioni ehe ne sono fatte. Soprattutto, appare ben presente, anche nei suoi aspetti sociali, iI dibattito europeo degli anni '30 e '40. La costituzione romana deI 1849 derivo il suo carattere avanzato sia da questi presupposti, sia dalla linea notevolmente meno avanzata degli altri

102 Cfr. L. Namier, La rivoluzione degli intellettuali e altri saggi sull'Ottocento europeo, tr. it., Torino 1957, pp. 17-18. 103 Ricordiamo a semplice titolo indicativo i provvedimenti per I'abolizione delle tasse accademiche, la ripartizione in lotti da attribuirsi in enfiteusi perpetua a famiglie di contadini della maggior parte dei beni ecclesiastici incamerati, la fme di aleuni monopolii quale quello dei Torlonia sul commercio dei sale.

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disegni eostituzionali maturati nel 1848-1849. Tra questi disegni vi fu anehe quello dello Statuto albertino, ehe resse poi 10 Stato italiano unitario dal 1861 al 1946--41, quando la nuova eostituzione repubblieana deI paese uscito dal fascismo diede luogo a un ordinamento la eui earatterizzazione democratiea e sociale era anehe piu forte di quella liberale. Ma non fu solo in ltalia ehe tra 1'ultima parte del seeol0 XIX e la meta deI seeolo XX si doverono reeuperare e affermare istanze maturate gia tra la fine deI seeolo XVIII e la meta deI seeolo XIX: 104 eonstatazione legittima, purehe si eviti di eredere ehe tra 1'uno e 1'altro di questi due periodi non fossero maturate altre e nuove istanze politiehe e sociali e ehe un seeolo dopo non si sia fatto altro ehe dare puramente e semplieemente attuazione a quanto si sarebbe voluto e non si sarebbe potuto attuare un seeolo prima. Per quanto riguarda, infine, in particolare, il rapporto stabilito nella eostituzione eosi approvata e strutturata tra potere legislativo e potere eseeutivo, abbiamo gia avuto modo di notare varii aspetti della questione.

Evidente e l'inclinazione dei costituenti romani a garantire la sovranita dell'assemblea rispetto all'eseeutivo non solo per le eompetenze speeifiehe deI potere legislativo, bensi anche per la gestione delto stesso potere eseeutivo. Si eapi questo orientamento gü\ dal prima momento, e soprattutto quando, eome si detto, fu immediatamente e drasticamente respinta la proposta di Mazzini di sospendere l' Assemblea al momento delt'istituzione deI Triumvirato e di lasciare la gestione della Repubbliea tutta e solo a un forte potere eseeutivo, sia pure - eome Mazzini spiego nel diseorso sopra rieordato del 18 marzo assicurando le fondarnentali liberta politiehe e eivili. Si poi visto ehe, quando si parl0 speeifieamente della ripartizione dei poteri, l' Agostini eseluse il modello presidenziale franeese per la troppa liberta ehe esso laseiava al presidente delta repubbliea in materia di politica internazionale; e ehe egli preferiva ehe i eonsoli fossero in numero pari, perehe in tal modo, in easo di 10ro antagonismo, sarebbe prevalso il parere dell'assemblea.

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L' Assemblea fu anehe ostilissima aHa istituzione deI Tribunato. Aeeonsenti a prevedere ehe i eonsoli fossero in numero di tre, ma riservo a se stessa non solo il potere di iniziativa e di decisione neHe procedure a earieo dell'eseeutivo, ma anehe la elezione degli stessi eonsoli, sottraendola al suffragio popolare previsto dal progetto presentato al suo esame. Egualmente respinta fu 1'idea deHa dittatura, ossia di una magistratura straordinaria ehe oseillando tra l' omonima magistratura di Roma antica e il Comitato di Salute Pubbliea deHa reeente rivoluzione francese - comportasse una sospensione e 104 Si ricordi, ad esempio, la conclusione delIa storia delIa rivoluzione francese di Albert Mathiez, dove si afferma ehe il programma giaeobino deI 1793 dove attendere un secolo per essere realizzato nelIe sue istanze fondamentali dalIa Terza Repubbliea.

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una sostituzione deI potere assembleare. La stessa logiea politieo-istituzionale prevalse nelle disposizioni ehe resero i ministri dei governo nominati dai eonsoli responsabili dinanzi all , assemblea, e non solo verso i eonsoli, e ehe ridussero di molto le eompetenze dei Consiglio di Stato. Non fu in eontraddizione eon questo orientamento, a nostro awiso, la riduzione della durata dell'assemblea da quattro a tre anni, eome per il eonsolato, poiehe in tal modo non si faceva ehe eonferire maggiore autorevolezza alla nuova assemblea, forte di una reeente investitura popolare, sia nella elezione dei nuovi eonsoli ehe nell'esercizio dei eontrollo dell'eseeutivo. Paria poi da se la disposizione ehe rimette alla eompetenza dell'assemblea l'arruolamento e la dislocazione delle forze armate e le nomine ai eomandi militari; e ehe rende, inoltre, la stessa assemblea piu libera da vineoli di legge nell'arruolamento dell'esereito per via diversa dal volontariato. L'orientamento a una drastiea riduzione dei poteri dell'eseeutivo in materia di relazioni internazionali e di pace e di guerra fu eonfermato in pieno nel testo definitivo, e vi fu aggiunta per l'eseeutivo l'indisponibilita di ogni potere di veto 0 deliberativo in materia di legislazione, perehe queste eampo fu totalmente riservato alla eompetenza dell'assemblea: fu, anzi, previsto, eome nella eostituzione franeese dei 1848, ehe, in easo di inadempienza dell'eseeutivo, le leggi venissero promulgate dal presidente dell'assemblea, mentre, a differenza dalla stessa eostituzione franeese, non si riservava alla competenza delI' eseeutivo la nomina dei pubbliei ministeri, di eui semplieemente non si diceva nulla. Nel complesso, dunque, un modelle di regime rappresentativo a forte aceentuazione parlamentare non solo per i poteri rieonoseiuti alla rappresentanza nazionale rispetto al potere eseeutivo, bensi, aneor piu, perehe - eome si e visto - la diffidenza verso l'esecutivo, eon la tutela del potere assembleare, eeeede, piuttosto, nel fare in modo ehe sia il legislative a invadere in piu punti il eampo dell' eseeutivo anziehe il contrario. Ma si e anehe gia vista la genesi politiea di questo orientamento, poiehe gli stessi eostituenti riehiamarono piu volte il modelle eostituzionale franeese, al quale pure si ispiravano, eome modelle da evitare propria per l' eeeesso di poteri ehe esso sembrava riconoseere al presidente della repubbliea, oltre ehe per le decisioni prese dal presidente francese, in base a tali poteri, eontro la Repubbliea Romana. Certamente queste motivo di attualita politiea, eome anehe abbiamo gia osservato, non fu il solo a ispirare le decisioni dei eostituenti romani, ma nel eomplesso fu indubbiamente il motive immediate piu importante. Allo stesso modo si puo rieonoseere qui il ti more di eadere in una gestione deI potere 0 dominata da un potere rivoluzionario, eome era aceaduto nella rivoluzione francese, 0 earatterizzato da una parte ampia delI'eseeutivo e da una parte modesta dei legislativo, eome era aceaduto in tutte le eostituzioni europee post-rivoluzionarie. Da questo punto di vista sembra ehiaro un progetto di demoerazia fortemente garantita non solo sul piano sociale, bensi anche - e piu e prima - sul piano politico-istituzionale di

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un regime di liberta, con un'apertura aistanze piu propriamente liberali non frequenti nella democrazia europea di quel tempo. La soluzione di queste progetto attraverso il primato dell' assemblea e significativa, e certamente ha fondamenti ideologici e dottrinari non meno forti di quelli politici, come per qualche verso abbiamo potuto notare. L'ottica e, comunque, sempre quella dell'Europa continentale e delle sue vicende e probierni. Non sembrano emergere suggestioni particolari 0 specifiche ed evidenti deI modelle parlamentare inglese. E anche questo concorre a dare all'esperienza romana deI 1849 un particolare motivo di interesse storico.

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The Roman Constitution of 1849 English Summary The constitution of the Roman Republic of 1849 never carne into force. It

was proclaimed the third of July, the very day French troops entered the city

and put an end to the Republic itself. However, it remains a document of great interest. It was the only ltalian constitution in the years 1848-49 to be issued by an elective assembly and not granted ("octroyee") by a sovereign. It was also the only one that took, as an example, the French constitution of 1848, while at the time the French and Belgian constitutions of 1830-31 were the prevailing models in ltaly and Europe. Thus, it was a constitution with a strong democratic bias, naturally enough, since liberal-democratic, democratic and radical tendencies were predominant in the Roman Republic. From the institutional point of view, the Roman constitution seems imbued with the concern to ensure strong control over the executive power through the legislative Assembly. This concern was even stronger than the one pertaining to social and po1itica1 democratization. It is easy to see behind this areaction to the growing strength of the Bonapartistic line in France and to the French intervention in Rome on behalf of the Pope. A closer analysis reveals, beyond this, the political and cultural urge, proper to the democratic approach, belonging to the majority of the founders of the Republic.

"A mixed form of government founded on democratic principles" The Wisconsin Constitution of 1848 and the Virtuous Republic 1 By Horst Dippel In American history, 1848 is primarily remembered as the year in which the war with Mexico came to an end and the growth of Continental America, with onlya minor addition five years later, was completed. Just a handful of states had been admitted to the Union in the time period around 1848, bringing the total number of states in that year up to thirty. Though there were other periods in American history more exuberant in state-building, the eight years from 1844 to 1852 stand out as the most prolific years in constitution-making. Eighteen constitutions, including three that failed to meet the approval of the people, were drafted in these eight years, whereas the rest of the twenty-year period from mid-1836 to early 1857 saw only four other constitutions adopted. With this singular amount, more constitutions were drawn up in these years than in any other eight-year period of American history from 1776 to 1860. Of these eighteen constitutions only that of Wisconsin was completed and ratified in 1848, due to the fact that a previous draft of 1846 had been rejected by the people, and that Wisconsin was anxious to get an approved constitution after Congress had passed the enabling act for seeking admission? Accidentally, as it happened, the Wisconsin constitution of 1848 remains, nevertheless, the only constitution agreed upon in this year that is still in force

1 I am happy to acknowledge my gratitude to my research assistant Norbert Faber for working through the Wisconsin newspapers of this period in the holdings of the John F. Kennedy Institute, Free University ofBerlin. 2 As to the legal basis of the second convention, cf John Alexander Jameson The J Constitutional Convention. Its History, Powers, and Modes of Proceeding, 3' ed., Chicago 1873, p. 174. The constitution ofIllinois of 1848 was actually adopted by the Illinois constitutional convention on 31 August 1847, cf Benjamin Perley Poore (ed.), The Federal and State Constitutions, Colonial Charters, and Other Organic Laws ofthe United States, 2 vols., 2nd ed., Washington, D.C. 1878, vol. I, p. 470.

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today. Even with almost 140 amendments its principa1 character has basically been 1eft unchanged in the 150 years of its existence. 3 No second American state outside of New England can boast of a likewise enduring constitution 4 Of all the other constitutions drafted between 1844 and 1852, on1y those of Ohio and Indiana, both from 1851, are still in force today. What then caused the 10ngevity of this constitution, and why was the Wisconsin constitution of 1848 ab1e not on1y to survive, with few exceptions, almost all other American state constitutions but actually every European constitution from 1848/1849? Across the board, these eighteen constitutions, the two constitutions of Wisconsin included, if considered at alV have been generally presented as "Jacksonian" documents, signalizing the triumph of democracy, especially in the Mississippi Valley 6 Indeed, thirteen of the eighteen constitutions originated, broad1y speaking, in the Mississippi Valley from Michigan down to Texas. To classify all of them, however, indiscriminate1y as "Jacksonian" constitutions ignores the differences between them. These are a1 ready expressed in their acceptance, which ranges from those three constitutions which were rejected by the peop1e to those which are most enduring, those of Wisconsin of 1848 and of Ohio and Indiana of 1851. Without neglecting the general importance of "Jacksonian" ideology during these years, as in the substantia1 number of states rewriting their constitution in this period sufficiently documents, the different response of the peop1e to them and their far from homogeneous contents call for a more sophisticated interpretation. One of the reasons for the extraordinary success story of the Wisconsin constitution of 1848 may be found in the biographies and characters of its framers. In the years preceding statehood Wisconsin territory saw a dramatic increase in population. In 18303,245 whites lived in the area. By 1840 the number had risen to about 31,000, and in 1850 it exceeded 305,000. 7 Wisconsin's rapid 3 Jack Stark, The Wisconsin State Constitution. A Reference Guide (Reference Guides to the State Constitutions ofthe United States, n° 28), Westport, Conn. 1997, p.8. 4 This point was already made by Joseph A. Ranney, The Making ofthe Wisconsin Constitution, in: Wisconsin Lawyer 65, September 1992, pp. 14,60. ~ For a critical evaluation of the general lack of interest in American state constitutions, cf Christian G. Fritz, The American Constitutional Tradition Revisited. Preliminary Observations on State Constitution-Making in the Nineteenth-Century West, in: Rutgers Law Jouma125, 1994, esp. pp. 945-962. Cf a similar statement by Daniel J. Elazar, The Principles and Traditions Underlying State Constitutions, in: Publius 12, 1982, p. 11. 6 Cf Frederic L. Paxson, Wisconsin - A Constitution of Democracy, in: Milo M. Qua!fe (ed.), The Movement for Statehood (Wisconsin Historical Publications, Collections, vol. XXVI), Madison, Wis. 1918, pp. 30-53. Cf also Albert L. Sturm, The Development of American State Constitutions, in: Publius 12, 1982, esp. pp. 64-65. 7 Cf Robert C. Nesbit, Wisconsin. AHistory, Madison, Wis. 1973, pp. 89, 147.

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growth during these two decades, however, was in no way unique when compared to that of the other states of the old Northwest. Of its 305,000 inhabitants in 1850 near1y one fourth had moved in from the state of New York, thus outnumbering those born in Wisconsin up to that date by severa1 thousands. Almost the same number originated from New England, New Jersey, Pennsy1vania or the other Lake states, whi1e 106,000 were foreign-born, a third of them Germans as the most numerous groUp.8 All these immigrants had brought with them their different cultura1 backgrounds, and in order to understand the Wisconsin constitution it will be necessary to see how these poured into the Constitutiona1 Conventions. It has been said that the Convention of 1846, which met from October 5 to December 16, was "predominantly as assemblage of young Yankee farmers,,9 Of its 124 members 103 were elected as Democrats, 18 as Whigs, and 3 as Independents. 60 were in their thirties, 46 were immigrants from New York and 42 from New England, while 13 were foreign born, seven of them Irish. Though only 49 described themselves as being farmers, almost all of them owned a farm without always considering it their principal occupation or source of income. 10 In social terms, the Convention of 1847-1848 resemb1ed closely the Convention of 1846, though only six members of the first Convention were also delegates to the second. The second Convention, in session from December 15, 1847, to February 1, 1848, numbered 69 members, 41 of them being Democrats, 25 Whigs, and 3 Independents. 51 of the 69 de1egates were immigrants from New England or New York, seven from Europe, all but two of them Irish. Thirty-two of them were in their thirties, and 31 described themselves as being farmers. 11 Received opinion considers the second convention, generally, less partisan orientated, less radical in its opinions and more conservative,12 in contrast to the first convention, which was dominated by party bias or "progressive Democrats". 13

8 Ibid., pp. 151-152; Alice E. Smith, The History of Wisconsin, Madison, Wis. 1973, vol. 1, pp. 467-468. 9 Ray A. Brown, The Making of the Wisconsin Constitution, Part I, in: Wisconsin Law Review, 1949, p. 657. 10 Ibid. In addition to the 46 native New Yorkers at least 16 further delegates had a forming New York backgro\Uld, cf Nesbit, Wisconsin, p. 216. 11 Milo M. Quaife (ed.), The Attainment of Statehood (Wisconsin Historical Publications, Collections, vol. XXIX), Evansville, Wis. 1928, p. 931; Brown, Wisconsin Constitution, Pt. 11, in: Wisconsin Law Review, 1952, p. 24. 12 Brown, Wisconsin Constitution, Pt. 11, pp. 25-26. 13 Edward Vemon Whiton, member of the second convention and Chief Justice of Wisconsin from 1853 to 1859, was just one to use this argument in his speech of 12 March 1847, published in the Madison "Express", 30 March 1847, in: Milo M. Quaife (ed.), The Struggle over Ratification 1846-1847 (Wisconsin Historical Publications,

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Between 1844 and 1846, at least seven Constitutional conventions were held in New Jersey in 1844, in Louisiana in 1844-45, in Texas in 1845, in Missouri in 1845, in neighboring Iowa two in 1844 and 1846, as weIl as in New York just a few months before the Wisconsin convention. 14 For these chronological and biographical reasons, it has repeatedly been argued that the Wisconsin constitution was largely drafted along the New York model. ls New York' s influence, indeed, extended weIl beyond specific constitutional stipulations, 16 including the experience of the vivid political controversy between Democrats and Whigs over it as weIl as about the constitutional basis of national politics in the time of crisis and war. Any closer look to the texts, therefore, will reveal not only articles, sections, and clauses directly drawn from the New York constitution of 1846 but also those which were not repeated in it, some of them even in no American constitution at all. Regarding the relationship, personal or conditioned by the times, the impact of Michael Hoffman, the driving force behind the New York convention of 1846, and his "Old Republican values", "Jeffersonian principles", and "yeoman republicanism", as James Henretta called it,17 are clearly to be feit in the Wisconsin constitution. The essential question, however, is not what was copied directly from the New York constitution, but where and why the framers of the Wisconsin

Collections, vol. XXVIll), Madison, Wis. 1920, p. 414, similar pp. 516, 645 (Milwaukee "Sentinel and Gazette", 23 December 1846, and Prairieville "American Freeman", 7 April 1847). 14 Cf, though not comp1ete Nesbit, Wisconsin, pp. 214-215. Cf The Progress of Constitutional Reform in the United States, in: The United States Magazine and Democratic Review 18, 1846, esp. pp. 243-244,403. I~ Cf Edward P. Alexander, Wisconsin, New York's Daughter State, in: Wisconsin Magazine of History 30, 1946, esp. pp. 23-26; Smith, History of Wisconsin, vol. I, p. 47l. Cf Abraham Vanderpoe1 to Aron Vanderpoe1, Madison, 1 February 1848: "[ ... ] having terminated our 1abours in forming a Constitution for our future state, I fee1 asured that my Endeavours have been to assist in making a democratic Constitution, and I think there is no doubt of its being adopted by the people. Having been brought up in the 01d County ofColumbia [N.Y.], I have watched the progress ofimprovement in the laws of my native state, and we have in many things copied from her Example. Columbia County has furnished four of the members to our Convention, more than from any other County in the United States" (Vanderpoe1 collection, State Historica1 Society, Madison, Wis.). Geraldine Strey ofthe State Historica1 Society kind1y made this letter avai1ab1e to me. 16 In a critica1 assessment the merits ofthe New York constitution were plainly exposed in The New-York Constitutional Convention, in: The United States Magazine and Democratic Review 19, 1846, pp. 339-348. 17 James A. Henretta, The Strange Birth of Liberal America. Michael Hoffman and the New York Constitution of 1846, in: New York History 77, 1996, pp. 155, 156, 176.

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constitution of 1848, striving to achieve an exemplary constitution,18 differed from the model of the Empire State and from that of almost any other state. Already the convention of 1846 had been acclaimed for having feit "free to reject old errors and to point in her turn to new truths [and] to avail itself of all the new lights of constitutional science, whatever might be the judgment of conservatism upon the experiment". 19 The organization of the legislature makes the paralieis to the New York constitution of 1846 easily visible. The size of both Houses, the annually elected Assembly, and the Senate chosen for two years with all legislators being directly elected in single-member districts, provisions for reimbursing the members of the legislature, the principal incompatibility of state and national legislative seats and of legislative seat and appointed office, whether state or federal, the election on the first Tuesday after the first Monday in November, the quorum, the legislative procedure, the public debate, and the publication of journals, all these provisions of the Wisconsin constitution of 1848 resemble closely those of the New York constitution of 1846?O These similarities are particularly interesting since they were less developed in the Wisconsin constitution of 1846. 21 The election day, the emoluments provision, and the incompatibility clause of the New York constitution do not figure here, or, in the last case, only in a mitigated form. All three documents, however, stand out for their annual Assembly - according to Edward V. Whiton "more in accordance with Democratic principles than biennial,,22 - and a biennial Senate, both provisions of the older republican tradition, whereas other state constitutions of the time, departing from a widespread practice in the era of the early republic, normally had come to prefer biennial Houses of Representatives and four-year Senates?3

18 Cf Alexander liegler, Skizzen einer Reise durch Nordamerika und Westindien mit besonderer Berücksichtigung des deutschen Elements, der Auswanderung und der landwirthschaftlichen Verhältnisse in dem neuen Staate Wisconsin, 2 vo1s., Dresden and Leipzig 1848, vol. I, p. 268: "Wisconsin rühmte sich der modernsten und vollkommensten demokratischen Verfassung von allen Staaten." 19 Racine "Advocate", 27 January 1847, in: Quaife (ed.), The Strugg1e over Ratification 1846-1847, p. 444, cf simi1ar p. 447 (Racine "Advocate", 3 February 1847). 20 Cf Wisconsin constitution of 1848, Art. N, and New York constitution of 1846, Art. m. Less simi1arities may be found when compared with the Illinois constitution of 1848, Art. m, the Iowa constitution of 1846, Art. m, the Louisiana constitution of 1845, Art. II, or the Texas constitution ofl845, Art. m. 21 Cf Wisconsin constitution of 1846, Art. V, VI, in: Milo M. Quaife (ed.), The Convention of 1846 (Wisconsin Historica1 Pub1ications, Collections, vol. XXVII), Madison, Wis. 1919, pp. 735-739. 22 "The Walworth County Democrat", 19 January 1848, p. 1.

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A specific feature of the Wisconsin constitution was, however, what the 1846 draft had called "restrictions of the legislature" and which signaled the contents of three of the ten seetions of artic1e VI. These "restrictions" reduced private and local bills to just one subject (sec. 4),24 interdicted any extra compensation of any contracted or rendered public service (sec. 5), and disallowed forever any lottery (sec. 7)25 These moral impositions, inaugurated not to prevent the legislature from transgressing its constitutional powers but in order to prescribe what was morally acceptable, actually placed the idea of "restrietions of the legislature", though allegedly only limited in its nature, in the center of Wisconsin constitutionalism. New York's constitution knew the same reservation about private and local bills (art. III, sec. 16), and the constitution of Iowa also outlawed any lottery (art. III, sec. 28), but no American constitution contained an artic1e "On the powers, duties, and restrictions of the legislature" comparable to that of the Wisconsin constitution of l846?6 In denouncing Edward G. Ryan, Democrat and one of the most influential figures of the 1846 convention, and his report on the restriction of banks and banking, the Southport "Telegraph" offered a striking argument against these kinds of "restrictions of the legislature": "[The people] want to be let alone; and when this convention guards against the granting of any special privileges to any man or set of men in community, in our opinion, it has done its whole duty, whether to the Democracy or to the state at large. Democracy, in brief, in our opinion, consists in just as few laws and few restrictions as the intelligence of the peopIe may make necessary; and it strikes us as a considerable want of confidence in the capacity of the people to guard their own interests when such provisions as are contained in this report are sought to be enacted. ,,27

23 Cf the above mentioned constitutions of Louisiana, Texas, Iowa, and Illinois. In the l840s only the Rhode Island constitution of 1842 and the New Jersey constitution of 1844 prescribed annua1 elections for both houses ofthe legislature. 24 The importance ofthe c1ause is c1early expressed by Stark, Wisconsin State Constitution, p. 95: "This section's purposes are to encourage the legislature to devote its time to matters that affect the entire state, to preclude favoritism and discrimination, and to alert the members ofthe legislature to the subject matter ofthe legislation that they consider." 2' Cf Quaife (ed.), The Convention ofl846, pp. 738-739. 26 On the history of this artic1e, originated in a convention committee, on its five members, none of them first rank delegate, and a11 immigrants from Maine, N ew York, Pennsylvania, South Carolina, and England, and on the readings of its report to the convention, and the adoption, cf ibid., pp. 43, 57, 402-404, 465, 479, 720-721, 756, 760, 776, 779, 780. However, the very idea of "restrietions of the legislature" was most certain1y influenced by the New York convention, cf Peter J. Galie, Ordered Liberty. A Constitutional History ofNew York, New York 1996, p. 105: "Taken as a whole, the reduction oflegislative power was a most striking aspect ofthe work ofthe 1846 convention."

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To be sure, in the years of the American Revolution, most Americans had been convinced that the power of the legislature ought to be restricted. The famous Federalist N° 51 expressed this point clearly: "In republican government, the legislative authority necessarily predominates", and therefore, remedies will be "necessary to guard against dangerous encroachments" originating from its otherwise unrivaled powers 28 In consequence of the democratic rhetoric of the age of lackson, however, this idea had lost much of its former persuasiveness. 29 The Wisconsin convention of 1846 with its sweeping Democratic majority, therefore, was not concerned with how to restriet the lawmaking power of the legislature in order to preserve a constitutional balance. According to its understanding restriction of the legislature meant instead preventing the legislature from making "wrong" laws by providing additional constitutional barriers by means of what came to be called "constitutional legislation" especially in Western state constitutions in the second half of the nineteenth century.30 While Old leffersonian republicanism had relied on republican virtue,31 the Wisconsin constitution of 1846, lacking "confidence in the capacity of the people to guard their own interests" according to the Southport "Telegraph", set out to decree public virtue in combining the classi-

27 Quoted in the Milwaukee "Sentinel and Gazette", 23 October 1846, in: Quaife (ed.), The Struggle over Ratification 1846-1847, p. 182. The Milwaukee opposition to the draft is confmned in a letter by Josiah A. Nooman to Morgan Lewis Martin, Milwaukee, 25 October 1846: "The proceedings ofthe Convention I am sorry to say are not thus far very popular here, and unless something is done before it tries to create a more favourable impression I fear there will be a very formidable and spirited opposition to accepting the Constitution" (Morgan L. Martin Collection, Area Research Center, University of Wisconsin at Green Bay, Wis.). I am grateful to Thorsten Herold, Kassel exchange student, at the University of Green Bay for providing me with copies from the Martin L. Morgan Collection. 28 The Federalist, N° 51 (ed. by Edward Mead Earle, New York s.a., p. 338). Cf "Restrietions on the Legislature", Racine "Advocate", 2 December 1846, in: Quaife (ed.), The Struggle over Ratification 1846-1847, pp. 212-215. 29 Decades later Thomas Cooley with his magisterial "Constitutional Limitations" became the most influential author on "all those restraints which the caution of the fathers had imposed upon the exercise of the powers of government": Thomas M. Cooley, A Treatise on the Constitutional Limitations which Rest Upon the Legislative Power ofthe States ofthe American Union, 5th ed., Boston 1883, esp. p. iii (Preface to the second edition). 30 Cf Fritz, State Constitution-Making in the Nineteenth-Century West, pp. 962964. Cf also Cooley, Constitutional Limitations, p. 87. 31 On republican virtue in the Founding era, cf. Donald S. Lutz, Popular Consent and Popular Control. Whig Political Theory in the Early State Constitutions, Baton Rouge, La. 1980, esp. pp. 8-12; Gerald Stourzh, Alexander Hamilton and the Idea of Republican Government, Stanford, Calif 1970, esp. pp. 63-70; Gordon S. Wood, The Creation ofthe American Republic, 1776-1787, 1969, repr. New York 1972, esp. pp. 65-70.

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cal republican idea of annual parliaments with "Jacksonian" assumptions of establishing invariable mIes to guide the people. The rejection of the proposed constitution by the people of Wisconsin was obviously caused by a common uneasiness with this overall tenor of the constitution of 1846, specifically expressed in three additional stipulations against banks and paper money (art. X), on property rights of married women and the exemption of homesteads from forced sale (art. XIV) that arose widespread opposition. 32 Not because of any fundamental political opposition, but in order to avoid the impression created by the previous draft of a people being dictated how to rule itself,33 both contested articles were not included in the constitution of 1848,34 and the whole text was largely rewritten and rearranged. No wonder that there was no longer a specific article on "restrictions of the legislature" in the new constitution, though sec. 4, 5, and 7 of former art. VI, nonetheless, reappeared almost verbatim as sec. 18, 24, and 26 of the article on the legislative (art. IV), along with the annually elected Assembly35 and the biennial Senate (sec. 4, 5). When the new text mIed that in elections by the legislature the vote should be taken viva voce, it was less adeviation from the New York constitution, silent on this procedure, but an answer generally offered by American constitutions regarding this question,36 and another exampIe of a people confident in governing itself.

32 Cf Qua({e (ed.), The Convention of 1846, pp. 744-745,747-748; Brown, Wisconsin Constitution, Pt. I, pp. 692-693. Though criticized for the exemption of hornesteads, the constitution was acclairned as "perhaps, the best yet framed to ensure the transaction of public business [... ] and that state will then have the honor of starting into being with a more just and popular constitution than any state before it": Constitutional Governments, in: The United States Magazine and Democratic Review 20, 1847, pp. 198-200. 33 Cf Bayrd Still, State-Making in Wisconsin, 1846-48. An Illustration of the Statehood Process, in: Wisconsin Magazine of History 20, 1936-37, pp. 34-59, who views the fIrst constitution more restrictive in the powers granted especially to the legislature than the constitutions ofthe neighboring states and than the second constitution. 34 They became, however, law within the next few years, cf "The Walworth County Democrat", 4 August 1848; Smith, History of Wisconsin, vol. I, pp. 675-676; Catherine B. Cleary, Married Women's Property Rights in Wisconsin, 1846-1872, in: W isconsin Magazine of History 78, 1994-95, esp. pp. 11 0-125. 3~ While changing the official style ofthe lower house from house ofrepresentatives to assembly, the constitution of 1848 adopted the style of the lower house of New York, the only existing constitution to use this name officially. 36 Cf Franklin B. Hough (ed.), American Constitutions: Comprising the Constitution of Each State in the Union and of the United States, with the Declaration of Independence and Articles of Confederation; Each Accompanied by a Historical Introduc-

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These manifest republican ideas, more often taking recourse to the Founding period than to Jacksonian ideology, also shine through further stipulations of the constitution of 1848. The "Dec1aration of Rights" (art. I) is particularly expressive on this point. The guarantee of judicial remedy (sec. 9) as well as that against all neo-feudal or semi-feudal tendencies (sec. 14) may have had in part its origins in the New York constitution, though not heing mentioned in the 1846 constitution. The most telling paragraph in this sense, however, is the conc1uding sec. 22: ''The blessings of a free government can only he maintained by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles." This c1ause had been first introduced into American constitutionalism by the Virginia Bill of Rights of 12 June 177 6, the exact wording of which was: ''That no free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles" (sec. 15).37 In borrowing from the first American constitutional document of 1776, the enumeration of essential republican categories of civil government immediately refers to Thomas Jefferson, Thomas Paine, James Harrington, and all the other propagators of republican virtue and first principles. Here in Virginia with its enlightened gentlemen farmers and more than seventy years later again in Wisconsin with its yeomanry and their strong bias against banks, lotteries, capitalism, and corruption, a virtuous, republican people set out to govern itself with no need of heing patronized, but self-responsible and fully conscious of the necessity, as not only the Whigs insisted, of a continual return "to the first principles on which [American] government was established".38 The Wisconsin c1ause is all the more telling, as no second American constitution of the first half of the nineteenth century contained a comparable section,39 and because those few constitutions of the late eighteenth century that tion and Notes, Together with a Classified Analysis of the Constitutions, 2 vols., Albany, N.Y. 1872, vol. II, p. 634. 37 The cOInmittee on general provisions had proposed a slightly different text. The [mal phrasing was introduced by the cOInmittee on revision and arrangement on 22 January 1848, cf Quaife (ed.), The Attainment ofStatehood, pp. 228-229,714. 38 Opinions ofthe Council ofThree: Political Bigotry - Conservatism - Radicalism, in: The American Review. A Whig Journal of Politics, Literature, Art and Science 6, 1847, p. 243. Beyond the whole article, pp. 242-245, the journal abounds with this idea during these years. 39 Art. XIII, sec. 19 ofthe Illinois constitution of 1848 reduced this classic republican c1ause to a rather feeble statement: "That a frequent recurrence to the fundamental principles of civil govemment is absolutely necessary to preserve the blessings of liberty." The North Carolina constitution of 1776 contained almost verbatim the same clause (Pt. I, art. XXI). 19'

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took up the Virginia example inaugurated more or less significant changes in it, all of them later disregarded by the Wisconsin convention. The path was set by the Pennsylvania constitution of 1776 that was so much more radical than the Virginia or the Wisconsin constitution. Regarding its radical-democratic character, it certainly did not happen by chance that the recurrence to virtue was dropped in it and "industry" put in its place. The idea of radical republicanism, immediately connected with the clause, however, was in no way lost but expressed in the second sentence of the article, which obviously should be understood as an explanation of the preceding sentence: ''The people ought therefore to pay particular attention to these points in the choice of officers and representatives, and have a right to exact a due and constant regard to them, from their legislators and magistrates, in the making and executing such laws as are necessary for the good government of the state" (Pt. I, art. XIV). Vermont, which closely followed the Pennsylvania constitution, remained the only state to pick up these phrases verbatim with its constitutions of 1777, 1786, and 1793 (ch. I, art. XVI, XX, and XVIII, respectively).40 The course pursued by Pennsylvania was also taken up by the Massachusetts constitution of 1780, which, as the Pennsylvania constitution of 1776, inserted "industry" instead of "virtue" but added as sixth social category "piety" that now appeared even as the most important (Pt. I, art. XVIII). Another variant of the Pennsylvania model was presented by the New Hampshire constitutions of 1784 and 1792. Both went back to the original catalog with a telling deviation. "Virtue", the eminently political category of civic humanism, was substituted by "all the social virtues", thus giving additional emphasis to social categories. Nevertheless, the explanatory clause was added as in Vermont and Massachusetts (in both: Pt. I, art. 38). Of all American constitutions since June 1776, only the Wisconsin constitution of 1848 more than seventy years later even twice restated the original notion of American republicanism with its recurrence to republican virtue and first principles, resoundingly proclaimed with the first clause of the constitution that drew on the famous wording of the Declaration of Independence: "All men are born equally free and independent, and have certain inherent rights; among these are life, liberty, and the pursuit of happiness. To secure these rights governments are instituted among men, deriving their just powers form the consent of the governed" (art. I, sec. 1).41 This tenor characterizes the Wisconsin constitution of 1848 even more so than the rejected draft of 1846,42

40 The only deviation from the Pennsylvania text are the words "in a legal way" added between "a right" and "to exact" in the 1786 and 1793 constitutions. 41 Cf Stark, Wisconsin State Constitution, p. 38. 42 Seetion 1 of the Bill of Rights of the constitution of 1846 (art. XVI) had started with the same eight words but then read quite differently and lacked any obvious re-

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which had been "lacking in that consistency and harmony in all its parts which so important a document ought to possess", according to a member of the second convention. 43 Beyond formally resembling the New York constitution of 1846 in adopting and significantly extending "Hoffman's leffersonian principles,,44 under the impact of the political and social situation of Wisconsin, and contrary to the general assumption of the conservatism of the 1847-48 convention, the real character of the constitution of 1848 reveals itself in balancing dominant lacksonian ideology with basic principles of the Founding period in opposition to the spreading of unrestricted majority rule since the days of the early republic. Again, the Wisconsin convention professed that "great confidence in the body of the people. They are generally honest, particularly so are they in political affairs." In the same way as in the late eighteenth century, this opinion contrasted with the persuasion: "Mankind is fallible, subject to passions, prejudices, caprices, delusions [... ] It is an axiom in moral philosophy that restraints are necessary to confine men within proper bounds." It was, therefore, the intention of the constitution to "circumscribe and limit the executive and legislative departments".45 This general character of the Wisconsin constitution is confirmed by the two articles on the executive and administrative. The division in two articles and the stipulations on the executive again resemble closely the constitution of New York of 1846 (art. IVand V). The executive is personified in the governor who, as in New York and eight further states, is directly elected for two years (art. V, 1) whereas the New England states together with two other states preferred a one-year term and another eight states opted for a term of four years. Interestingly enough both Wisconsin constitutions are completely silent as far as re-eligibility is concerned. Regarding other functions and powers of the governor, both are again not very extensive. No power to require written information from the executive departments or to adjourn the legislative is mentioned as in the constitution ofIowa of 1846 (art. IV, sec. 8 and 13) and of Illinois of 1848 (art. IV, sec. 9 and 13). Contrary to the Illinois constitution (art. IV, sec. 12), the governor had no appointing power other than of filling vacancies in the legislature or the courts (art. IV, sec. 14, art. VII, sec. 9, cf. semblance with the famous phrases of the Declaration of Independence, nor did the New York constitution of 1846, for that matter. 43 Byron Kilboum in the session of 16 December 1847, Quaife (ed.), The Attainment of Statehood, p. 179. 44 Henretta, The Strange Birth ofLiberal America, p. 156. 4j George W. Lakin in the session of30 December 1847, Quaife (ed.), The Attainment of Statehood, pp. 308-309. The restrictions on the law-making powers of legislatures in the 1870s and 1880s were the result of a different motivation, cf Henry Hitchcock, American State Constitutions. A Study ofTheir Growth, New York 1887, pp. 34-40.

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Iowa constitution, art. IV, sec. 10), for any more extended power was considered to be "the chief if not the only source of the improper influences alluded to. Divested of this power, the executive would have no means of drawing around hirn a clique and building up a central influence. ",16 The Wisconsin constitution, instead, restricts itself to granting the governor what may be called the minimum power in American constitutionalism, such as commander-in-chief, stimulator of future legislation and executor of the laws (art. V, sec. 4). A central question in this context was whether the governor should be vested with a veto power, like most of his colleagues in the other American states and the president of the Uni ted States. The convention of 1846 had accepted this provision, obviously without any major debate. 47 The second convention, however, was not ready to pass silently over this point. Those insisting that "[t]he powers of the governor should be very limited",48 were vehemently opposed to any veto power as a monarchical relict from England. It was symptomatic for the convention that in the ensuing debate on representation, majority rule, and democracy, the opinion prevailed that a veto power was necessary as "a check upon hasty and corrupt legislation".49 In the constitution of 1848, therefore, the provision of the previous draft (art. III, sec. 11) reappeared verbatim, giving the governor a veto power that might be overridden by a two-thirds majority in both houses, though, as his colleagues in Connecticut, Arkansas, Iowa, and afterwards in Indiana, he had no more than 46 Frederick S. Lovell in the session of 22 December 1847, Quaife (ed.), The Attainment of Statehood, pp. 233-234. The same idea was expressed by Orsamus W. Cole in the same session, ibid., p. 236. Cf. "The executive ought to be shom of the whole ofhis patronage. The power of appointment should be taken from him altogether and placed where it properly belongs, in the hands of the people. Any convention which shall accomplish this important work of reformation, will have eamed for itself a lasting title to the gratitude of posterity" (Elective Judiciary, in: The United States Magazine and Democratic Review 22, 1848, p. 206). 47 Cf. Quaife (ed.), The Convention of 1846, pp. 392-394, 401, 408-411, 418. This silence is all the more astonishing as President Polk's veto of the River and Harbor Bill provoked a major debate about the veto power with the Whigs pleading for abolishing that "wanton and corrupt exercise of a monarchical prerogative", The Veto Power. Our Inland Trade, in: American Review 4, 1846, p. 338, cf. the whole article, pp. 325-338. In the 1848 presidential campaign the Whigs mitigated their position. Instead ofbeing "a part ofthe ordinary legislative authority ofthe Govemment" the veto power should "be employed only on high and extraordinary occasions", The Whigs and Their Candidate, in: American Review 8 (N.S. 2), 1848, p. 233. For a defense of the veto power by the Democrats, cf. The Executive Veto, in: The United States Magazine and Democratic Review 24, 1849, pp. 14-23. 48 Edward V. Whiton in the session of 27 December 1847, Quaife (ed.), The Attainment ofStatehood, p. 269. 49 Stoddard Judd in the session of27 December 1847, ibid., p. 27l.

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three days for returning the bill (sec. 10) instead of the five or even ten days accorded to most American governors. Virtue should be the predominant character of any future governor of Wisconsin, as was already expressed by the constitution of 1846 that offered the governor one thousand dollars in compensation for his services (art. III, sec. 5). so The constitution of 1848 raised this sum to one thousand two hundred and fifty dollars (art. V, sec. 5) which was stilliess than pure generosity. Up to 1848, the fixation of salaries in American constitutions as undertaken in Wisconsin was unique. The only constitution that came dose to it was that of Missouri of 1820 because it added a precise sum to the statement of the general principle, common to almost all American constitutions of the time: ''The governor shall, at stated times, receive for his services an adequate salary, to be fixed by law, which shall neither be increased nor diminished during his continuance of office, and which shall never be less than two thousand dollars annually" (art. IV, sec. 13, emphasis added). The governor of Wisconsin was definitely less weIl off than his colleague in Missouri and presumably also than most of his colleagues in the other states. In any case, his salary was only half of what the territorial governor Henry Dodge had received. S1 Even more instructive is that it was substantially lower than that of the judges of the Supreme Court of Wisconsin, and even than that cf the judges of the Circuit Courts. The constitution of 1848 fixed their salaries at "not less than one thousand five hundred dollars annually" (art. VII, sec. 10). The low salary for the head of the executive, combined with a short term of office and limited powers characterizes a constitution that laid emphasis on virtue and first principles in revival of the tradition of early American republicanism. S2

so The cOlnrnittee on the executive had proposed $1500 annually, and "efforts were made in a11 parts ofthe house to reduce it to $1200, $1100, $1000, $800, and $500, a11 ofwhich failed". After extensive debates a majority agreed on $1000, cf Quaife (ed.), The Convention of 1846, pp. 325,392-394,409-410,418. Cf the debate in the second convention where a minority voted for $1000, Quaife (ed.), The Attainment of Statehood,pp. 252-253, 255-256. SI liegler, Skizzen einer Reise durch Nordamerika, vol. I, p. 252, listed his annual salary with $2,500. S2 Cf Warren Chase in the session of22 December 1847, Quaife (ed.), The Attainment of Statehood, p. 234. It fits into this picture that in accordance with Hoffinan's constitutional revolution in New York only in a few enumerated ca ses the state was a110wed to contract any public debt, and that whereas several states' constitutions contained provisions to encourage internal improvements, no constitution was as restrictive on it as that ofWisconsin: "The state shall never contract any debt for works of interna I improvement, or be a party in carrying on such works" (art. VIII, sec. 10, cf sec. 4), cf Henretta, The Strange Birth ofLiberal America, pp. 164-170.

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Wisconsin, obviously, was different from the surrounding states of the Mississippi va1ley not because it was so much more influenced by the New York constitution of 1846 but because it was much more consistent and rigorous than Michael Hoffman had ever been in the effort to revive Old republicanism and the recurrence to virtue and first principles of the Founding era in midnineteenth-century America. Wisconsin's constitution, therefore, was different from a11 other constitutions drafted in 1848. There was nothing revolutionary about its constitution in contrast to the European constitutions of this very year. Completely in contrast to them, it was backward looking though without being reactionary. Like the European constitutions the Wisconsin constitution of 1848, nevertheless, was an expression of modern constitutionalism, growing on both sides of the Atlantic since the revolutionary age at the end of the eighteenth century, and mutua11y influencing each other. That this expression in 1848 proved to be so different in far away Wisconsin from most European examples, dramatica11y heterogeneous as they were, exemplifies the different state of political cultures and their degree of development in modern constitutionalism. In this sense, the Wisconsin constitution, despite its political orientation and in view of later nineteenth and twentieth-centuries constitutional developments towards democracy and republicanism, may be ca11ed more modern than alm ost a11 of European counterparts of the age, but it also stood out among American constitutions of its time and of later years due to its insistence on c1assical republican principles of government control and constitutional ruling. It was this expression of yeoman virtues and ideals, and its republican unpretentiousness and simplicity, combined with its adherence to traditional constitutionalism, restricting itself to the clear statement of general principles without going into details and offering solutions to a11 problems that characterized the Wisconsin constitution and that may have made it endure. 53 In contrast, subsequent conventions especia11y in the West increasingly inserted specific limitations of the legislature into their constitutions by way of "constitutionallegislation",54 an effort the people in Wisconsin in 1846-47 still vehemently rejected. Wisconsin also achieved this result because its constituti on of 1848, in contrast to the New York constitution of 1846 and most American state constitutions, and also in contrast to the constitutions of Ohio and Indiana of 1851, succeeded in holding the balance between classical republicanism, in the form it made its appearance in America in summer 1776, ~3 For a similar appreciation, cf Stark, Wisconsin State Constitution, pp. 7-8. ~4 Cf Thomas M. Cooley The General Principles of Constitutional Law in the United States of America, 3,,1 ed., by Andrew C. McLaughlin, Boston 1898, esp. pp.

385-286; Fritz, State Constitution-Making in the Nineteenth-Century West, esp. pp. 964-971; also Sturm, Deve10pment of American State Constitutions, pp. 74-76.

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and the rising democracy during the first half of the nineteenth century, a balance between constitution on the one side and popular sovereignty on the other side. 55 In this sense, it may have been exactly what the Racine "Advocate" had hoped the still unfinished draft of 1846 finally to become, viz. "a model constitution" fully expressing "the meaning of the much-talked-of progress of the nineteenth century" 56 The Whig delegate Orsamus Cole who from 1855 to 1892 served upon the bench of the Supreme Court of Wisconsin, the last twelve years being chief justice, had c1early expounded this definitely not "Jacksonian" idea in the constitutional convention in words that appear like taken up directly from the Federalist, so that he may be quoted in full from the journal and debates of the convention: "He did not regard either the executive or legislative department of the government as the immediate agent of the popular will. Instead of this it was often necessary that the existing authorities should for the moment resist and restrain the popular will and compel it to act with more mature deliberation than it might in a moment of excitement, if it had the immediate control of its own agents. There had been such things as democracies running mad, and might be again. He knew these sentiments were unpopular and might be regarded as antirepublican; but he could not help that; he believed they were in harmony with the spirit and the genius of our system of government when rightly understood. ,,57 It seems to have been just this balance - "not democratic in the broad sense of the term", as a staunch Democrat and delegate to both conventions seconded, but "a mixed form of government founded on democratic principles,,58 - that was congenial to the people of Wisconsin in 184859

" Cf "What now?", in: Wiseonsin "Heraid", April 17, 1847, repr. in: Quaife (ed.), The Attaimnent of Statehood, p. 104: "Remember that the people through the legislature retain the powers not taken away by the eonstitution. Do not tie the hands of legislation. Give us a short lueid eonstitution, eontaining rather too few than too many provisions - make it soon and make it permanent, and the people will be satisfied with it. "

'6 Raeine "Advoeate", 21 Oetober 1846, in: Quaife (ed.), The Struggle over Ratifieation 1846-1847, p. 209. '7 Orsamus W. Cole in the session of22 Deeember 1847, Quaife (ed.), The Attainment of Statehood, p. 236. For a basieally similar expression of Whig ideology, cf Responsibility of the Ballot Box; with an Illustration, and The Future Poliey of the Whigs, both in: Ameriean Review 4, 1846, pp. 435-446, and, 7 (= N.S. I), 1848, esp. pp. 329-332. This interpretation, obviously, eontradiets Galie's argument that the New York eonstitution of 1846 restrieted power not "for the purpose of eheeking legislative power; the transfer was from the government direetly to the people, diminishing the power of all three branehes. Thus, the 1846 Constitution is the most demoeratie eonstitution New Yorkers have adopted" (GaUe, Ordered Liberty, p. 111). ~8 Stoddard Judd in the session of22 Deeember 1847, Quaife (ed.), The Attaimnent ofStatehood, p. 237.

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and that gave strength to the state during its 150 years of existence and allowed for the continued adaptation of its constitution to the political, social, economic, and cultural changes over time.

j9 Cf Rock COlmty "Democrat", 19 Febmary 1848, p. 6: "The Racine 'Advocate' thinks the new Constitution 'will be adopted, not on accoWlt of its merits, but because the anxiety to become astate is very great.' We think so too, and agree with the Advocate generally in his objections to the instrument. The editor says he 'will vote for it, though he cannot advocate it warmly,' and thinks it 'will be supported with the following feeling: Too bad for a blessing, too good for a curse, I wish from my soul thou wert better or worse.'"

List of Contributors Brauneder, Wilhelm (* 1943), has been professor of constitutional law and history at the University of Vienna (Austria) since 1980 and Director of the Ludwig-Boltzmann Institute for Comparative Research in Legal Systems. He has extensively written on the history of Austrian constitutional, civil and public law, and his "Österreichische Verfassungsgeschichte" appeared in its 7th edition in 1998. Chiavistelli, Antonio (* 1966), teaches political science at the University of Florence (ltaly) where he received his Ph. D. in 1996. His main fields of research are the political movements of the Italian 'Risorgimento' with particular emphasis on the constitutional history of Tuscany. Among his recently published articles was ''Toscana costituzionale: la difficile gestazione delle Statuto fondarnentale dei 1848", in: Rassegna storica dei Risorgimento, LXXXIV, 1997, pp. 339-374. Dippel, Horst (* 1942), has been professor of British and American studies at the University of Kassel (Germany) since 1992. His main fields of interest are American, British, French, and German constitutional history in the 18th and 19th centuries, on which he has published several books and numerous articles. His "Geschichte der USA" (Munich: C. H. Beck) saw its 3rd edition in 1999. Galasso, Giuseppe (* 1929), has been professor of medieval and modern history at the University of Naples "Federico 11" (ltaly) since 1966 and member of the Academia dei Lincei. He has published numerous books and articles particularlyon 19th-century liberal and democratic ltaly. His most recent book was "Napoli Capitale. Identita politica e identita cittadina (1266-1860)", Naples 1998. Hein, Dieter (*1951), teaches modern and contemporary history at the University of Frankfurt (Germany). His major fields of research are the history of liberalism and the middle classes in the 19th and 20th centuries, and urban history, on which he has published several books and numerous articles. His "Die Revolution von 1848/49" (Munich: C. H. Beck) saw its 2Dd edition in 1999.

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Huussen, Arend H., Jr. (* 1941), has been professor of modern history at the University of Groningen (Netherlands) since 1982. His main fields of interest are the history of constitutional and penal law, and families and minorities. His most recent book is the "Historical Dictionary of the Netherlands", Lanharn, Md. - London 1998. Lambert, Frederic (* 1966), teaches political science at the Universite de Paris-Dauphine (France), where he received his Ph. D. in 1998 with a thesis on "Cite de Dieu et cite terrestre dans I'oeuvre de Lamennais". His major research areas are political ideas (19 th to 20 th centuries), on which he just published a book (Paris: Armand Colin, 1999), religion and poIitics, parliamentary groups in the Fifth Republic, and the building of the European Union. Mannori, Luca (* 1957), has been professor of the history of political institutions at the University of Florence (Italy) since 1995. His main fields of interest cover ltalian constitutional and administrative law with special emphasis on Tuscany from the 16th to the 19th century. One of his most recent publications was "Giustizia e amministrazione tra antico e nuovo regime", in: Magistrati e potere nella storia europea, a cura di R. Romanelli, Bologna, 1997, pp. 39-65. Schulz, Andreas (* 1958), teaches modern history at the University of Frankfurt (Germany) . His major fields of research are the political and social history of Germany and France in the 19th century. Among other publications, he has written a book on "Weltbürger und Geldaristokraten. Hanseatisches Bürgertum im 19. Jahrhundert", Munich 1995. Schweizer, Rainer J. (* 1943), has been professor of public law and constitutional theory and history at the University of St. Gall (Switzerland) since 1990. He has published on the theory of legislation, revision of the Constitution, European protection of fundamental rights, law in data protection and right to information, police law, environmental law, constitutional law, public mIes of procedure, etc. Spei/kamp, Winfried (* 1958), teaches history at the University of Giessen. He has a long-standing interest in the constitutional history of the Electorate of Hesse, dating from his Ph.D. dissertation at the University of Marburg in 1986. His most recent book is "Jugend in der Neuzeit. Deutschland vom 16. bis zum 20. Jahrhundert", Göttingen 1998. Ullrich, Hartrnut (*1943), has been professor of Europawissenschaften at the University of Kassel (Germany) since 1981. His major fields of interest are ltalian history and politics in the 19th and 20 th centuries, especially ltalian Iiberalism. He has published widely on ltalian constitutional development,

List ofContributors

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among others his recent article "Sistemi elettorali e sistema politico: dalla riforma deI 1882 aHa crisi di fine secol0, in: P. L. Ballini (ed.), Idee di rappresentanza e sistemi elettorali in Italia tra Otto e Novecento, Venice 1997, pp. 61-138. Zlinsky, Janos (*1928), has been professor and dean ofthe law faculty ofthe Peter Pazmany Catholic University in Budapest (Hungary) since 1995. He served as Justice in the Constitutional Court of Hungary, 1989-1990. He has worked extensivelyon Hungarian constitutional history, and one of his recent books was "Wissenschaft und Gerichtsbarkeit. Quellen und Literatur der Privatrechtsgeschichte Ungarns im 19. Jahrhundert", Frankfurt 1997.