Magna Carta: A Central European Perspective of our Common Heritage of Freedom 1138848549, 9781138848542

To mark the 800th anniversary of the ratification of the Magna Carta by King John at Runnymede, Magna Carta provides the

284 14 13MB

English Pages 254 [255] Year 2016

Report DMCA / Copyright


Table of contents :
Magna Carta- Front Cover
Magna Carta
Title Page
Copyright Page
Chapter 1: Why do we Central Europeans celebrate the anniversary of Magna Carta?: Introductory remarks
The Tocquevillean insight
Estate privileges as the mediaeval foundations of the early modern civic rights and mixed/ republican government
Freedom under the law
The archipelago of freedom
The experience of unfreedom
Toward a notion of Central European constitutional identity
Chapter 2: a) The Hungarian experience of freedom: the tradition of the Golden Bull
Liberty, limits, political community and the Golden Bull of Hungary
The development of the Hungarian ethos of liberty
Chapter 2: b) The Hungarian sources
Chapter 3: a) King, estates and the Czech Crown: the legal sources of the ideas of freedom in the medieval and early modern Czech lands
Early middle ages: aristocracy, election of the sovereign and royal title
Land community and origin of liberties of the Estates
Estate system, codification of provincial law and legislative stipulation of liberties in the fifteenth–seventeenth centuries
Excursus: privileges for Olomouc bishopric in the sixteenth century
Czech historiography of the nineteenth century and idea of Czech state
Chapter 3: b) The Czech sources
Chapter 4: a) The nobility’s privileges and the formation of civil liberties in old Poland
1. Introduction
2. The types of privileges introduced in old Poland: their legal characteristics
3. The first general (nationwide) privileges: the privileges of Buda and Košice; the nobles’ immunity from taxation
4. The golden epoch of privileges: the principle of personal and property inviolability
5. From the epoch of privileges to the era of noble democracy
6. Privileges and liberties as reflective of the Republic’s constitutional foundations
7. Freedom of conscience and religious toleration
8. The Constitution of 3 May 1791
Chapter 4: b) The Polish sources
Chapter 5: a) Ruling by law and by consent: monarchy and noble estate in the Grand Duchy of Lithuania
The emergence of the Lithuanian state
The ruling dynasty
Union of Krėva (Krewo) and the Jagiełłonians
The union of Lublin and the noble democracy
The end of the Commonwealth and its legacy
Chapter 5: b) The Lithuanian sources
Recommend Papers

Magna Carta: A Central European Perspective of our Common Heritage of Freedom
 1138848549, 9781138848542

  • 0 0 0
  • Like this paper and download? You can publish your own PDF file online for free in a few minutes! Sign Up
File loading please wait...
Citation preview


To mark the 800th anniversary of the ratification of the Magna Carta by King John at Runnymede, Magna Carta provides the central European perspectives on this monumental document and its impact on the political and legal experiences of freedom, from the medieval period to the present day. The volume gives rise to a discussion about the legacy of the Magna Carta as one of the fundamental elements of European identity. Supported by previously untranslated sources at the end of each chapter, the team of contributors consider the lasting legacy of Magna Carta in Hungary, the Czech Republic, Poland and Lithuania. The authors present the successful attempts to limit royal power by law while protecting the privileges of the nobility carried out throughout the region from the thirteenth to eighteenth centuries. Each chapter considers the historical and political contexts behind these efforts, the processes by which political and legal institutions were subsequently formed and finally examines the legacy of those institutions which are today found in consitutional identities, constitutional arrangements and political projects across Central Europe. A preface by Robert Blackburn draws the collection together, highlighting the continued universal significance of the Magna Carta. This original title will enable students and academics alike to see for themselves the reverberations the Magna Carta caused in medieval Europe and beyond from a fresh and unusual perspective. Zbigniew Rau is Professor in the Faculty of Law and Administration at the University of Łódz´, Poland and Director of the Alexis de Tocqueville Center for Political and Legal Thought. Przemysław Żurawski vel Grajewski is Lecturer in the Faculty of International Studies at the University of Łódz´, Poland. Marek Tracz-Tryniecki is Lecturer in the Faculty of Law and Administration at the University of Łódz´, Poland.

This Page is Intentionally Left Blank

MAGNA CARTA A Central European perspective of our common heritage of freedom

Edited by Zbigniew Rau, Przemysław Żurawski vel Grajewski and Marek Tracz-Tryniecki

First published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2016 Zbigniew Rau, Przemysław Żurawski vel Grajewski and Marek Tracz-Tryniecki for selection and editorial matter; individual chapters © the contributors The right of the editor to be identified as the author of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Rau, Zbigniew, editor. | çZurawski vel Grajewski, Przemys±aw Piotr, 1963– editor. Title: Magna Carta : Central and East European perspectives / Edited by Zbigniew Rau and Przemys±aw çZurawski vel Grajewski. Description: New York, NY : Routledge, 2016. Identifiers: LCCN 2015032728| ISBN 9781138848528 (hardback : alk. paper) | ISBN 9781138848542 (pbk. : alk. paper) | ISBN 9781315640969 (ebook) Subjects: LCSH: Magna Carta—Influence. | Constitutional history—England. | Rule of law—England—History. | Constitutional history—Europe, Central. | Constitutional history—Europe, Eastern. | Rule of law—Europe, Central—History. | Rule of law—Europe, Eastern—History. Classification: LCC KD3946 .M335 2016 | DDC 340/.11—dc23 LC record available at ISBN: 978-1-138-84852-8 (hbk) ISBN: 978-1-138-84854-2 (pbk) ISBN: 978-1-315-64096-9 (ebk) Typeset in Bembo and Melior by Swales & Willis, Exeter, Devon, UK


Contributorsvii Forewordxii Acknowledgementsxviii 1 Why do we Central Europeans celebrate the anniversary of Magna Carta? Introductory remarks Zbigniew Rau, Marek Tracz-Tryniecki, and Przemysław Żurawski vel Grajewski


2 a) The Hungarian experience of freedom: the tradition of the Golden Bull Attila K. Molnar and Levente Völgyesi



b) The Hungarian sources

3 a) King, estates and the Czech Crown: the legal sources of the ideas of freedom in the medieval and early modern Czech lands Jana Janišová and Dalibor Janiš

b) The Czech sources

79 112

4 a) The nobility’s privileges and the formation of civil liberties in old Poland Dorota Malec


b) The Polish sources


vi Contents

5 a) Ruling by law and by consent: monarchy and noble estate in the Grand Duchy of Lithuania Artūras Vasiliauskas



b) The Lithuanian sources



Professor Zbigniew Rau, PhD, is Professor of Law and Chair of Political and Legal Thought within the Faculty of Law and Administration at the University of Łódź, and Director of the Alexis de Tocqueville Centre for Political and Legal Thought. He has been a Visiting Fellow Commoner at Trinity College Cambridge (1985–1988), a Lecturer at the University of Texas at Austin (1988–1994), a Visiting Scholar at the Social Philosophy and Policy Center at Bowling Green State University (1989, 1991), a Visiting Scholar at the Hoover Institution at Stanford University (1990), a Fellow of the Murphy Institute of Political Economy at Tulane University (1991), and a Fellow of Research School of Social Sciences at the Australian National University (1993). Professor Rau served as a Senator of the Republic of Poland and as a Member of the Parliamentary Assembly of the Council of Europe (2005–2007). He holds the office of the Voivode of Łódź Voivodeship.

Key Publications: Rau, Z., ed., The Reemergence of Civil Society in Eastern Europe and the Soviet Union, Westview Press, 1991. Rau Z., Contractarianism versus Holism: Reinterpreting Locke’s Two Treatises of Government, University Press of America, 1995. Rau Z., From Communism to Liberalism: Essays on the Individual and Civil Society, Łódź University Press, 1998. Rau Z. and Tracz-Tryniecki, M., eds., Tocquevillian Ideas. Contemporary European Perspectives, University Press of America, 2014. Professor Attila K. Molnar, PhD, is a professor of Eötvös Loránd University, Budapest, in the Faculty of Social Sciences and the director of the Thomas Molnar Institute for Advanced Studies. He has published several monographs on the

viii Contributors

history of ideas with special reference to politics and religion. His main works are The Protestant Ethic in Hungary (1994), Edmund Burke (2000), The Chaotic Prison, essays (1999), On the Good Order, essays (2010), Conscience On Leave I (2014), The Deliberative Democracy and the Redeeming Chatting (2014). Jana Janišová, PhD, is Senior Lecturer at the Department of Theory of Law and

History of Law in the Faculty of Law of Palacký University in Olomouc, Czech Republic, in the field of history of civil law in the Bohemian lands, the legal history of European countries, the reception of Roman law and constitutional development in the Bohemian lands. Research specializations are: Moravian provincial law and the provincial judiciary (especially the court records); civil law in the fifteenth and sixteenth centuries; the feudal system of the Bishopric of Olomouc; and critical editions of early modern legal-historical sources. Key Publications: Janišová J., Šlechtické spory na raně novověké Moravě (Edice rokové knihy zemského hejtmana Václava z Ludanic z let 1541–1556) [Disputes of the Nobility about Honour in Moravia in the Early Modern Period. The Edition of the Roková kniha by Lord Lieutenant Václav of Ludanice from 1541–1556)] (Brno, 2007), pp. 470. Janišová J., ‘De iure nostro. Právní spis Karla staršího ze Žerotína’ [De iure nostro. The Legal Work of Charles the Elder of Žerotín], in Libor Jan, Dalibor Janiš et al., Ad iustitiam et bonum commune. Proměny zemského práva v českých zemích ve středověku a raném novověku (Brno, 2010), pp. 68–106. Janišová J., ‘Privilegium Rudolfa II. pro olomoucké biskupství z roku 1590. Právní argumentace biskupa Stanislava Pavlovského [Privilege of Rudolph II to the Olomouc Bishopric in 1590. Bishop Stanislav Pavlovský´s Legal Argumentation]’, Folia Historica Bohemica 27 (2012), pp. 41–69. Janišová J., Janiš D., Zemské zřízení Markrabství moravského z roku 1516 (Počátky kodfikace zemského práva na Moravě) [the Provincial Code of the Margraviate of Moravia 1516 (Beginnings of Provincial Law Codification in Moravia)] (Olomouc, 2013), 198 pp. Dalibor Janiš, PhD, is researcher in the Faculty of Arts at the University of Ostrava, and researcher in the Faculty of Law of Palacký University in Olomouc, Czech Republic. Research specializations are: the late medieval and early modern history of the law (primarily Moravian provincial law; the judicial system); the critical editions of (legal) sources; and history of the nobility and aristocratic residences.

Key Publications: Janiš D., ed., Práva a zřízení Markrabství moravského z roku 1545 (Pokus moravských stavů o revizi zemského zřízení) [Rights and Orders of the Moravian Margraviate of 1545 (The Moravian Estate’s Attempt to Revise the Provincial Code)] (Brno, 2005), 296 pp.

Contributors  ix

Janiš D., ed., Moravský zemský sněm na prahu novověku. Edice Památek sněmovních z let 1518–1570. 1. Památky sněmovní I. [The Moravian Provincial Assembly in the Sixteenth Century. The Edition of the Assembly Records (Památky sněmovní) from 1518 to 1570] (Documenta res gestas Bohemicas saeculorum XVI.–XVIII. illustrantia. Series A, Volumen I-1) (Praha, 2010), 504 pp. Janiš D., ‘Stände versus Herrscher: Widerstandsrecht und Landrechte in den Böhmischen Ländern’, in Václav Bůžek, ed., Ein Bruderzwist im Hause Habsburg (1608–1611). Opera Historica 14. (České Budějovice, 2010), pp. 277–306. Janiš D., Zemské soudnictví na Moravě vrcholného středověku [Provincial Justice in Moravia of the High Middle Ages] (Brno, 2013), 276 pp. Professor Dorota Malec, PhD, graduated from the Faculty of Law and

Administration of the Jagiellonian University. She is a historian of Polish law and a specialist in the history of the institution of the notary public. Her research focuses on the history of the judiciary and administration, and also on the history of administrative courts. Since 2008 she has been the Head of the Chair of History of Administration, and at present she performs the function of Vice-Dean of the Faculty of Law and Administration of the Jagiellonian University, Poland. Professor Artūras Vasiliauskas, PhD, is the director of the British Council, the United Kingdom’s international organization for educational opportunities and cultural relations, in Lithuania. He also teaches courses on cultural and social history and historical anthropology at the Department of History in Vilnius University, Lithuania. In 2001–2005 he was a director of the Invisible College Lithuania, a non-profit institution that provided supplementary education in humanities and social sciences for gifted university students. In 2005–2009 he was employed at the Nordic Council of Ministers, and coordinated support projects for the European Humanities University, the Belarusian institution of higher education operating in exile in Vilnius. He received his doctoral degree from King’s College, University of London, for his thesis ‘Local Politics and Clientage in the Grand Duchy of Lithuania, 1587–1632’ in 2001. His academic interests lie in the political culture and legal mentality of the Lithuanian nobility in the early modern period.

Key Publications: Vasiliauskas A., ‘Antyk i sarmatyzm’, in Kultura Wielkiego Księstwa Litewskiego: analizy i obrazy (Cracow, 2006), pp. 1–21. Vasiliauskas A., ‘Valdymo sistemos bruožai (XVI a. vid. – XVIII a. vid.)’, in Lietuvos vidaus reikalų istorija (Vilnius, 2008) pp. 81–103. Vasiliauskas A. ,‘The Practice of Citizenship among the Lithuanian Nobility, ca. 1580–1630’, in Citizenship and Identity in a Multinational Common­ wealth. Poland-Lithuania in Context, 1550–1772 (Leiden and Boston, 2009) pp. 71–102.

x Contributors

Przemysław Żurawski vel Grajewski, PhD, received an MA in 1987 (Ukrainian

Problem at the Paris Peace Conference 1919), a PhD in 1997 (The United States and the Problems of Arms Control in the Era of the Preparatory Commission for Disarmament Conference 1925–1930) and academic habilitation in 2014 (The Eastern Part of the Polish Security Area as an Object and a Subject of the International Game in the Years 1991–2012). Since 1987 he has been a researcher/academic teacher of the University of Łódź in the Faculty of Philosophy and History, and since 1995 at the Faculty of International and Political Studies. In 1992 he was employed by the Office of the Minister of National Defence of Poland. From 1995–1996 he worked in the Office of the Undersecretary of State, Government Plenipotentiary for European Integration and Foreign Assistance. From 1996–2001 he worked in the European Institute in Łódź. From 2005– 2006 he was an agent of the EPP-ED, an expert in charge of monitoring the situation in Belarus, Moldova, Russia, and Ukraine in the European Parliament in Brussels. From 2006–2009 he was a visiting professor of the Belarusian European Humanities University in Vilnius. Since 2008 he has been a visiting lecturer at the KSAP (National School of Civil Servants). From 2006–2012 he was a researcher at the European Centre in Natolin. Since 2014 he has been a member of the Council of the Law and Justice. Key publications: Żurawski vel Grajewski P., Sprawa ukraińska na Konferencji Pokojowej w Paryżu w roku 1919, [The Ukrainian Problem at the Paris Peace Conference 1919], Warszawa 1995, pp. 128. Żurawski vel Grajewski P., Wspólna Polityka Zagraniczna i Bezpieczeństwa Unii Europejskiej – aspekt bałtycki i śródziemnomorski [Common Foreign and Security

Policy of the European Union – the Baltic and the Mediterranean aspects)], Łódź 1998, pp. 150. Żurawski vel Grajewski P., Stany Zjednoczone wobec problemu kontroli zbrojeń w

dobie Komisji Przygotowawczej do Konferencji Rozbrojeniowej (1925-1930) [The United States and the Problem of Arms Control at the Time of the Preparatory Commission to the Disarmament Conference, 1925–1930], Warszawa 2000, pp. 372. Żurawski vel Grajewski P., Polityka Unii Europejskiej wobec Rosji a interesy Polski 1991–2004, [The European Union Policy towards Russia and the Interests of Poland, 1991–2004], Kraków 2008, pp. 731. Żurawski vel Grajewski P., Geopolityka-siła-wola. Rzeczypospolitej zmagania z losem, [Geopolitics-Power-Will. The Republic’s Struggle with Fate], OMP: Kraków 2010, pp. 388. Żurawski vel Grajewski P., Duch pyszny poprzedza upadek. Rozważania o naturze

procesu rozpadu unii, OMP: Kraków 2012, pp. 208.

Contributors  xi

Żurawski vel Grajewski P., Bezpieczeństwo międzynarodowe. Wymiar militarny [International Security. The Military Dimension], PWN: Warszawa 2012, pp. 489. Żurawski vel Grajewski P., Pride Goeth before a Fall. Deliberations on the Nature of the Demise of Unions, CEN: Warszawa 2013, pp. 173. Marek Tracz-Tryniecki, PhD (Maria Curie-Skłodowska University, Lublin), is a researcher at the Alexis de Tocqueville Centre for Political and Legal Thought at the University of Łódź. His interests focus on the ideas of Tocqueville, Frédéric Bastiat, Catholic social teaching, and the Polish republican tradition in the seventeenth century. He is the author of the first Polish monograph on Tocqueville’s thought, as well as various articles and chapters on different aspects of this thought, such as natural law, economic crisis, constitutional law, colonial policy, and his vision of Europe. He received a Calihan Fellowship during the years 2006–2008. He is a coordinator of the Tocqueville Centre project devoted to the translation of political treatises written in Latin by Polish authors in the seventeenth century. He is the editor of the Polish translation of Andrzej Maksymilian Fredro’s Scriptorum and Militarium book I.

FOREWORD Magna Carta: our common heritage of freedom Robert Blackburn*

The 800th anniversary of Magna Carta in 2015 comes at the beginning of a new epoch for constitutional systems of governance around the globe. There are unprecedented social and political challenges of a common nature to be faced across the countries of the world, and new opportunities to promote freedom, justice and better standards of life. Many of these arise from the new technologies facilitating the work and efficiency of national and international governmental agencies, at the same time as a democratic revolution is being brought about by the internet and digital revolution, enabling instantaneous and direct communications to many millions of fellow citizens with the capacity to harness or influence public attitudes and shape political opinions in a manner never dreamt of in earlier times. Despite the still frequent conflicts between communities or states of differing political and ideological persuasions that still contaminate world peace today, even in parts of the European continent, sustained progress continues to be made towards better adapted structures of national and international government that are founded upon recognition and acceptance of the principles of the rule of law, democracy and human rights that Magna Carta as a constitutional document has come to represent for the modern era.1

  * LLD, Professor of Constitutional Law, King’s College London; Member, Magna Carta Trust, 800th Anniversary Committee.   1 For other publications on Magna Carta coinciding with its 800th anniversary, see Nicholas Vincent, Magna Carta: The Foundation of Freedom 1215–2015 (Chippenham: Third Millennium Press, 2015), Anthony Arlidge and Igor Judge, Magna Carta Uncovered (London: Hart Publishing, 2014), Andrew Blick, Beyond Magna Carta (London: Hart Publishing, 2015), Dan Jones, Magna Carta:The Making and Legacy of the Great Charter (London: Head of Zeus, 2014), David Carpenter, Magna Carta (London: Penguin Classic, 2015); and for earlier works see J. C. Holt, Magna Carta (1964), Sir Ivor Jennings, Magna Carta and its Influence in the World Today (London: HMSO, 1965), R. V. Turner, Magna Carta through the Ages (Cambridge, Pearson, 2003).

Foreword  xiii

The welcome and valuable collection of articles in this book reminds us of the common heritage that has shaped the democratic constitutions of Europe, and indeed across the world. The social and political contexts and environments in which each nation’s respective constitutions have been forged bear considerable differences, yet fundamental to all is the underlying concept symbolised by the English document that came to be known as the Great Charter – “Magna Carta” – sealed by King John on the field of Runnymede, 24 miles to the west of the City of London, on 15th June 1215. The Charter established the essential idea that our rulers may not do whatever they like, but are subject to the law as agreed with the society over which they govern. In establishing this point of principle, the Charter laid the foundations of modern constitutionalism in England and across Europe, providing the core principle of belief upon which all forms of governments should be based, whether monarchies, republics or democracies. The content of the Charter declared some of the most important fundamental freedoms that were later to be embodied in bills of rights and international treaties all over the world. In England, the Charter has been seen as “the first great act” of the nation, by its guarantee of liberties “to all free men of the realm”, and pointing the direction of travel towards the development of our representative institutions today. The content and intentions of Magna Carta were the product of its time and circumstance. Included within the 63 clauses of the original 1215 version2 were a number that dealt with immediate political grievances, among these the release of hostages (clause 49) and the removal of King John’s foreign-born officials (clause 50). A primary concern of the Charter’s draftsmen was to remedy the King’s abuse of his feudal rights, by regulating, for example, payments in lieu of military service and control over the property of widows, minorities and intestate estates. At the same time, however, the Charter asserted some fundamental liberties, for example the freedom of the Church (clause 1: the English church shall be free) and freedom of movement abroad (clause 42: it shall be lawful for any man to leave and return to our kingdom unharmed and without fear, by land or water, preserving his allegiance to us, except in time of war). Most famously, the Charter established the over-arching principle of due process in the administration of justice. In this connection, clause 39 said: no free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals3 or by the law of the land. Clause 20 asserted the principle of a fair and proportionate punishment for offences (a free man shall be fined only in proportion to the degree of his offence). And clause 40 asserted

  2 Revised forms of the Charter were re-issued in 1216, 1217 and 1225 by King Henry III, and in 1297 by King Edward I.   3  A clause that in England has been interpreted as a right to jury trial.

xiv Foreword

the independence and free working of the courts (to no one shall we sell, deny or delay right or justice). In England, the barons were prompted to rebellion against King John not by any commitment to any progressive political ideology, but rather by a conservative assertion of traditional customs and ancient liberties. Analogous developments taking place elsewhere in medieval Europe were of a similar character, notably in Hungary where in this book Attila K. Molnar explains that the purpose behind the Golden Bull of 1351 and popular movement of the common nobility was “to defend and fix the alleged old customs and liberties” of society.4 King John had abused the customs and incidents of feudal society, and was already unpopular for his loss of foreign wars, his conflict with Pope Innocent III and his high taxation at a time when inflation was rife. If there had been a convincing pretender to the throne around whom the barons could unite, a coup to replace him would almost certainly have been accomplished – and in that case Magna Carta might never have happened. The constitutional significance of Magna Carta, however, lay in its constitutional implications for later generations, rather than its actual content. The idea that the king was subject to customary law henceforth permeated and strengthened the English common law as it developed across subsequent centuries. The thirteenth century jurist Henry Bracton declared in his work On the Laws and Customs of England, written during the reign of King John’s successor, Henry III, that, The king ought not to be under man but under God and under the law, because the law makes the king. Let the king therefore bestow upon the law what the law bestows upon him, namely dominion and power, for there is no king where will rules and not law. Later during the seventeenth century conflicts between the Stuart Monarchy and Parliament, which culminated in the constitutional settlement of 1689 on which the UK constitution is still based, the common law was a potent source of argument against the pretensions of the king for a divine right to rule and an inherent royal prerogative to make laws and collect taxes without the authority of Parliament. In 1607 John Cowell, the Regius Professor of Civil Law at Cambridge, wrote that, “all the law we have is thought in some sort to depend of [derive from]” Magna Carta. In the Case of Proclamations in 1610 the Lord Chief Justice, Sir Edward Coke, gave judgment against the king, declaring, “the king has no prerogative but that which the law of the land allows him”, and “the king cannot change any part of the common law, nor create any offence, by his proclamation”. In 1628 the Petition of Right, approved by Parliament and reluctantly agreed to by Charles I, relied on Magna Carta for its legal authority in reciting the common law principles of freedom from arbitrary arrest and imprisonment, due process in the administration

  4  “The Hungarian experience of freedom – the tradition of the Golden Bull”, see below.

Foreword  xv

of justice and parliamentary consent to taxation. Subsequently, the Bill of Rights 1689, accepted by William and Mary on their accession following the enforced abdication of James II, established Parliament as the supreme lawmaker in the state, whose consent was required to royal and ministerial requests for annual taxation and a standing army. The Act of Settlement of 1701 secured parliamentary control over the line of succession to the Crown, and set down legal guarantees for the independence of the judiciary. The constitutional histories of the central and eastern European countries in this book show how the concept of government according to law made with the consent of the political nation, in its transition from aristocratic elites to modern democracies, came into existence across the European continent. Differences of approach and emphasis have existed towards the doctrine now called the Rule of Law, and in some degree remain today. The underlying idea that a state and its citizens should be governed by established laws rather than arbitrary decisions of our rulers had in fact existed in pre-feudal times, and can be traced back to ancient civilisation including in the writings of Aristotle.5 And since the early twentieth century, the massive extension in state intervention in European states to provide social security and public services have prompted new theories on the concept, such as in the UK most famously those by Professor A. V. Dicey in 18856 and latterly by Sir Thomas Bingham in 2010.7 A European synthesis of European legal and political ideology on the essential elements of the Rule of Law for today and the future has been formulated in a recent Report for the Council of Europe,8 of which all countries dealt with in this book are members. Its guiding principles are recognised as being legality (including a transparent, accountable and democratic process for enacting law), legal certainty, prohibition of arbitrariness, access to justice before independent and impartial courts (including judicial review of administrative acts), respect for human rights and non-discrimination and equality before the law. The inherent human rights of each individual to be protected under the Rule of Law were powerfully committed into writing after the Second World War in the United Nations Universal Declaration of Human Rights in 1948, then two years later in the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms in 1950 that has developed into the most effective and influential international human rights instrument in the world, a benchmark for the democratic states of Europe. It is interesting to observe that, in contrast to the written national constitutions that emerged in the modern era for the democracies of central and other western

 5  J. Warrington (ed), Aristotle’s Politics and Athenian Constitution (London: J. M. Dent & Sons, 1959), Book III, s.1287, p.97: “It is better for the law to rule than one of its citizens . . . so even the guardians of the laws are obeying the laws”.  6 The Law of the Constitution (London: Macmillan, 1885; 10th ed., 1985).  7 The Rule of Law (London: Allen Lane, 2010).   8 European Commission for Democracy through Law (Venice Commission), Report on the Rule of Law, Study No. 512 / 2009, CKL-AD(2011)003rev.

xvi Foreword

European nations, the mother country of Magna Carta still operates under an unwritten, traditional constitutional structure. There is irony in that fact that while Britain in its history produced many pioneering constitutional documents – not only Magna Carta, 1215 but those such as the Provisions of Oxford 1258, the Petition of Right 1628, the Bill of Rights 1689, and the Claim of Right 1689 – it has failed to produce a documentary (“written”) constitution of its own, as has virtually every other democratic state in the world.9 The UK could be regarded as having fallen victim to its own earlier successes, having resolved its relationship with the monarchy at an early stage through the civil wars of the seventeenth century, then developing a robust parliamentary system to facilitate opposition and protect civil liberty. Being the greatest imperial power in the world during the nineteenth century lent credence to national claims for the superiority of its domestic constitutional arrangements, which it exported into the newly drafted written constitutions based upon the Westminster model when granting independence to its former colonies and dominions. There are of course clearly identifiable Acts of the UK Parliament that are of a major constitutional nature, such as the Representation of the People Act 1918 providing for universal voting; the Parliament Act 1911 establishing the balance of power between the two Houses of Parliament; the Scotland Act 1998, Government of Wales Act 2006, and Northern Ireland Act 1998 providing a structure of devolved government across the UK and the Human Rights Act 1998 enabling individual rights and freedoms to be enforced through the courts. However, this represents a patchwork of constitutional documentation, not a coherent joined-up structure of constitutional law. Unsurprisingly, therefore, in recent years there has been a growing debate, and a parliamentary inquiry into the subject in 2010-15, on whether it is now time for Britain to adopt its own written constitution – a new Magna Carta10 – that codifies the fundamental institutions and principles by which its citizens are governed, setting out also the relationship between the state and its citizens in a modern Bill of Rights. The 800th anniversary year of Magna Carta has prompted a vast array of celebratory events, not only in its host country of the United Kingdom, but across the world. They have included programmes of lectures, exhibitions, pageants and broadcasts, many organized or supported by the UK Magna Carta Trust established in 1956 by senior representatives from the Judiciary, Church, National Trust and all the High Commissioners, chaired ex officio by the senior civil judge in England’s Court of Appeal, the Master of the Rolls, with the objective of perpetuating the principles of the Great Charter. The Trust’s formation was welcomed at the time by a letter from the then Prime Minister, Sir Anthony Eden, whose words captured the significance of the Trust’s aims:

  9 The other two exceptions being New Zealand and Israel. 10 See Robert Blackburn, “Enacting a Written Constitution for the United Kingdom”, Statute Law Review, Vol. 36, No. 1 (2015), pp.1–27; House of Commons, Political and Constitutional Reform Committee, A New Magna Carta?, HC (2014–15), 463.

Foreword  xvii

The 15 June 1215 is rightly regarded as one of the most notable days in the history of the world. Those who were at Runnymede that day could not know the consequences that were to flow from their proceedings. The granting of Magna Carta marked the road to individual freedom, to Parliamentary democracy and to the supremacy of the law. The principles of Magna Carta, developed over the centuries by the Common Law, are the heritage now, not only of those who live in these Islands, but in countless millions of all races and creeds throughout the world. Among the many conferences and books to commemorate the 800th anniversary of Magna Carta this year, this volume of excellent articles drawn from a conference held at The Alexis de Tocqueville Center for Political and Legal Thought at the University of Lodz, Poland, on 9th and 10th October 2014 stands as the foremost study on the history, relevance and legacy of Magna Carta in Central and Eastern Europe. There is much to celebrate, and the symbolic quality of the Great Charter remains immense. As Lord Denning, the most famous of English judges during the twentieth century, said during his tenure as Master of the Rolls and Chairman of the UK Magna Carta Trust at the time of the 750th anniversary celebrations for Magna Carta in 1965, the Great Charter “is the greatest constitutional document of all time . . . the foundation of the freedom of the individual against the arbitrary authority of the despot”. Professor Robert Blackburn, King’s College London; Magna Carta Trust, 800th Anniversary Committee


This volume would not have been possible without the support and encouragement of many persons and institutions. The contributors’ papers were originally presented at a conference at the Alexis de Tocqueville Centre for Political and Legal Thought, Faculty Law and Administration, University of Law on October 9–10, 2014. The conference was sponsored by the New Direction Foundation for European Reform. Additional support was given by the Dean of the Faculty of Law and Administration, University of Łódź and the City of Łódź. The idea for this conference was born in mid-2012 in Gdańsk, Poland. It was inspired by a conversation we had with Sir Robert Worcester, the Chairman of the Magna Carta 800th Anniversary Committee. The goal of bringing together legal historians from the countries of Central Europe to discuss their own constitutional traditions in the context of the worldwide celebrations of the Magna Carta’s 800th Anniversary seemed unusual enough to attract the interest and commitment of numerous people. Our thanks go to Roman Szporluk, Harvard University; Alvydas Jokubaitis, Vilnius University; Natalia Yakovenko, National University of Kyiv-Mohyla Academy; Bogdan Szlachta, Jagiellonian University; Judit Beke-Martos, Eötvös Loránd University; Krzysztof Skotnicki, University of Łódź and Anna PikulskaRadomska, University of Łódź for their assistance while preparing the conference and this volume. Our friends and co-workers at the Tocqueville Centre, Michał Rybicki, Marta Wawrzyniak and Łukasz Maryniak, took the most part of the administrative burden of organizing the conference. We are indebted to Tobiasz Bocheński, the secretary of the Tocqueville Centre, who served the project with his daily work, personal commitment and unconventional vision to coordinate the efforts of the domestic and foreign contributors at all stages of its implementation. We also wish to express our gratitude to Kazimierz M. Ujazdowski MEP, University of Łódź for his long-standing interest in and support of the idea of

Acknowledgements  xix

researching and presenting the constitutional heritage of Poland and Central Europe, and to Krzysztof Grzelczyk, New Direction’s Poland and Eastern Neighborhood Coordinator, for his skilful and effective support of the project. The task of the translating the legal sources from the Latin as well as Hungarian, Czech, Polish and Lithuanian into English was completed by Józef Macjon, Jim Todd, Weronika and Dean Edmunds, to all of whom we are truly indebted. We would like also to thank Dr. Jan Halberda who took part in the selection of Polish sources. We also thank Gavin Rae for his assistance in preparing the manuscript for publication. We do appreciate the helpful editorial comments on the manuscript and the cooperation during the publishing period which was patiently provided by Catherine Aitken of Routledge. Finally and very importantly, we would like to record our unfailing and deep gratitude to the Atlas Group and the Bank Zachodni WBK Group for their generous financial support for the Tocqueville Centre, which makes it possible for us and our colleagues to think and write on politics, society, and the law. Zbigniew Rau Marek Tracz-Tryniecki

This Page is Intentionally Left Blank

1 WHY DO WE CENTRAL EUROPEANS CELEBRATE THE ANNIVERSARY OF MAGNA CARTA? Introductory remarks1 Zbigniew Rau, Marek Tracz-Tryniecki, Przemysław Żurawski vel Grajewski The idea to commemorate the anniversary of Magna Carta by offering a scholarly perspective which emanates from only one region of the world, namely Central Europe, may seem unfortunate, if not misleading. Indeed, there are many good reasons to reject such a particularist approach in favour of a more universalist one. For example, it would be much more convincing to offer an analysis of the phenomenon of Magna Carta in the context of other European mediaeval political and legal documents which based a legal order upon the rights and liberties of the subjects as well as the limited prerogative of the monarch. Similarly, it would be more persuasive to launch an inquiry into the contemporary legacy of and reverence for Magna Carta in the countries which have adopted both effective governance under the law and political customs from England – the United States, Canada, Australia, and New Zealand. Yet as contributors to this volume, we believe that such a universalistic perspective would too easily succumb to the temptation to assume that the common historical or political, social, and cultural context leads to the appreciation of common rights and liberties, institutions, or social practices. In fact, we do not question the universalist character of the legacy of Magna Carta. Nevertheless, we are convinced that the value of this legacy can be better appreciated when it is considered from a particularist approach that expresses the particular historical, political, and constitutional experience of particular societies. In other words, we agree that it is to Magna Carta – especially two of its sixty-three clauses: “To no one will we sell, to no one will we deny or delay

   1 The authors acknowledge the extensive written comments by Jana Janišová, Dalibor Janiš, Attila K. Molnar, Artūras Vasiliauskas, and Levente Völgyesi, which have helped them to avoid many serious misunderstandings.

2  Zbigniew Rau et al.

right or justice” and “No free man shall be taken or imprisoned or in any way ruined, except by the lawful judgement of his peers or by the law of the land” – that we may trace back such contemporary values as liberty, equality, democracy, the rule of law, the efficiency of state authority, and even civil society and selfgovernment. At the same time, however, we believe that our own historical experience, politically less fortunate than that of the Anglo-Saxon world, allows us to appreciate the universal heritage of Magna Carta in our own special, truly particularist way. Indeed, if we assume, along with J. C. Holt, that “[t]he history of Magna Carta is the history not only of a document but also of an argument” and “[t]he history of the document is a history of repeated re-interpretation” while “[t]he history of the argument is a history of a continuous element of political thinking”2, we have every reason to claim that this assumption clearly holds for our own political and legal Central European history. The long chain of mediaeval estate privileges granted to the nobility gave way to public discourse and political practices which led to the establishment of the various forms of mixed/republican government in the early modern period. Moreover, the political reflection which justified this development and promoted freedom under the law for ever-expanding ranks of society survived the collapse of independent states in our region. In fact, it inspired a centuries-long struggle for self-determination which came to its final fruition only at the time of the Autumn of Nations in 1989 and the implosion of the Soviet Union in 1991.

The Tocquevillean insight To understand our particularist perspective, it is advisable to draw on the penetrating analysis of Alexis de Tocqueville who, back in the nineteenth century, managed to express the essence of our Central European experience. Tocqueville saw that Europe had shared some of the most obvious universalist fundamentals such as Christianity, the legacy of Antiquity, especially Greek philosophy, Roman law, and the ancient republican tradition. Moreover, he perceived feudalism as a social system which was common to all European nations and made it possible for them to enjoy the self-governing institutions which enabled political freedom to flourish on the continent.3 Accordingly, he was in a position to compare the French États provinciaux with the Polish local diets called sejmiki.4 Nevertheless, he also observed that Europe was substantially divided along two meaningful lines. The first was that between absolutism and the tradition of freedom. Tocqueville stated that the form of government which prevailed in numerous European states from the sixteenth to the eighteenth centuries was

  2 J. C. Holt, Magna Carta, Cambridge: Cambridge University Press, 1969, p. 16.    3 See. M. Tracz-Tryniecki, Z. Rau, ‘Tocqueville and Europe: What Can We Learn from Him about the Past, the Present and the Future of the Old Continent?’ in Tocquevillian Ideas. Contemporary European Perspectives, ed. M.Tracz-Tryniecki, Z. Rau, University Press of America 2014, pp. 12–13, hereafter TI.   4  See Alexis de Tocqueville, The Old Régime and the French Revolution, trans. Stuart Gilbert, Garden City: Doubleday & Company, 1955, pp. 48, 220.

Why do we celebrate the anniversary of Magna Carta?  3

absolutism. This brought about a top-down decision making structure, where sovereignty was centralised and vested entirely in the monarch who governed through a hierarchical administration. What followed was the omnipotent interference of the state, which imposed uniform conditions, the lack of the rule of law that binds those who govern and are governed, the destruction of the Church’s liberty, and a radical limitation of the civic participation which had previously existed in various medieval self-governing communities. Absolutism predominated on the continent, taking various forms from the classical in France to the enlightened in the German countries. Tocqueville observed, however, that there had been countries which did not choose to adopt this regime. Along with England, which abandoned it and reverted to the development of its free constitution at the time of its Revolution5, he referred to the Polish-Lithuanian Commonwealth and Hungary6 (which at the time encompassed, with the important exception of the Czech lands, all the countries discussed in this volume). Indeed, it was these latter states that did not allow free mediaeval institutions to die. On the contrary, in stark contrast to the monarchies which gave in to absolutism, for example, Poland reinforced free and republican institutions, even adopting extreme principles such as the rule of unanimous voting. Thus, it is not a surprise that when Tocqueville wanted to describe American republican institutions, such as presidential elections, he made the comparison with the Polish election of the monarch.7 Moreover, in both these countries the old feudal freedom was able to give impetus to social and political modernisation. To use a Polish example once more, it was its noblemen’s parliament that began to reform the state and adopted the first codified constitution in continental Europe, and the second oldest after the Constitution of the United States in 1791. The second line of division Tocqueville observed in the Europe of his time was that of the metropolis and its colonies.8 The phenomenon of internal colonisation – which Tocqueville described at length referring to the case of Ireland9 – reached its widest extent in Central Europe. It was there that numerous countries, most of which had been constituent parts of the mediaeval international community, politically disappeared from the map of the continent. This was the

  5  See Alexis de Tocqueville, Journeys to England and Ireland, ed. J. P. Mayer, trans. George Lawrence and K. P. Mayer, New Brunswick: Transaction, 2003, pp. 37–38, 41.   6  See Alexis de Tocqueville, ‘Letter to Hubert de Tocqueville March 25, 1854’ in Œuvres Complètes d’Alexis de Tocqueville vol. 7, Édition Beaumont (Paris: Michel Lévy Frères, 1866), pp. 323–324.   7  See Alexis de Tocqueville, Democracy in America, trans. Hervey C. Mansfield and Delba Winthrop, Chicago: University of Chicago Press, 2000, vol. 1, pt. 1, chap. 8, pp. 120, 124.   8 See TI, pp. 7–11.   9 Tocqueville visited Ireland in summer 1835 and presented his observations and reflection in the entries from this journey. His friend and companion on this journey, Gustave de Beaumont, devoted a whole book to the question. See Alexis de Tocqueville’s Journey in Ireland, ed. and trans. Emmet Larkin, Washington, D.C.:The Catholic University of America Press, 1990 and Gustave de Beaumont, Ireland Social, Political, and Religious, ed. and trans. William Cooke Taylor, Cambridge, London: The Belknap Press of Harvard University Press, 2006. The concept of applying the internal colonization discourse to the Irish question is presented in TI, pp. 8–12.

4  Zbigniew Rau et al.

fate of today’s Finland, Estonia, Latvia, Lithuania, Poland, the Czech Republic, Hungary, Slovakia, Belarus, Ukraine, Moldova, Slovenia, Croatia, Serbia, BosniaHercegovina, Macedonia, Albania, Romania, Bulgaria, and Greece. It is enough to mention that none of them was among the signatories of the Treaty of Vienna. When the countries we present in this volume (the Czech lands, Hungary, Poland, and Lithuania) became peripheral provinces of great powers – that is, Austria (later the Austro-Hungarian Monarchy), Prussia (later Germany), Russia (later the Soviet Union), and Turkey – the latter imposed absolutist or despotic rule which put an end, by legal as well as extralegal means, to their experience of rights and freedoms, mixed/republican governmental institutions, and civic practices. Yet, the old freedom which was lost along with the national independence and state sovereignty was not forgotten. It kept inspiring political projects, social visions, and searches for cultural identities which accompanied their struggle against foreign domination until the late twentieth century. Given this heritage, we are commemorating the 800th anniversary of Magna Carta from our own perspective, which embraces our own historical experience as well as our own constitutional identity. The latter may be convincingly described as a mix of truly universal and particular attributes10 which combine political aspirations and commitments that are expressive of our past, as well as our determination to seek the ways to transcend that past.

Estate privileges as the mediaeval foundations of the early modern civic rights and mixed/ republican government At the time of Magna Carta, the political power of a monarch in Central Europe was far from unlimited. Putting aside the relations of feudal dependency from the Holy Roman Emperor, which was the permanent experience of the Czech lands and a more temporary condition of Poland, he was forced to secure support for his domestic as well as foreign policies from his subjects. Whenever he had to turn to them with a request to support his policies, he recognised and acknowledged their position as his political partners. They had their own legitimate interests which also had to be mutually recognised and acknowledged. In this mutual interaction, which gradually constituted a set of political customs, consensual relations between these partners became the dominant political pattern. This is not to say that the very origin of monarchical power was a matter of the consent of its subjects, since in Christianity it was deemed to be of divine origin. Yet the way it was exercised, its scope and extent, required the consensual approval of its subjects. This consensual notion of politics originated, unlike in continental Western Europe, less from

  10 Compare Gary Jeffrey Jacobson, Constitutional Identity, Cambridge Mass.: Harvard University Press 2010, p. xiii, hereafter CI.

Why do we celebrate the anniversary of Magna Carta?  5

the chain of feudal relations,11 less from the output of political theory – we did not have a thinker of the rank of Manegold of Lautenbach12 – but more from constant political practices. The privileges granted to the estates, especially to the nobility, were the legalisation and institutionalisation of such consensual relations between political partners who had their own interests (the most common interest of the monarch was to secure the succession of his offspring to the throne or to gain support for war against his enemies, while the most popular interest on the part of his subjects was to gain immunity from taxation). When these privileges took on a nationwide rather than a local dimension, and were confirmed by every new monarch in his coronation oath, or in another way, it was possible to conceive of these relations as a typical contract of government.13 Both sides of that contract, namely the monarch and his noble subjects, were the bearers of rights and obligations. Although these rights and obligations were a result of their political and legal agreement, the reason for that very agreement, as well as for these rights and obligations, was the common good. The latter was institutionalised in the state, or the Crown, which both sides of the contract were supposed to serve, protect, and promote.

  11 Given that in Central Europe the chain of feudal relations connecting vassals and lords by the set of mutual obligations as institutionalized and symbolized in the act of homage was considerably less common than in the west (see the contributions of Dorota Malec and Attila K. Molnar, Levente Völgyesi), feudalism here meant less a form of government but rather a kind of social and economic relationship based on serfdom. Accordingly, the dependencies between the monarch and the nobility on the one hand, and within the nobility themselves on the other, had a much more informal character than in the west (Michał Sczaniecki, Powszechna historia państwa i prawa, Warszawa: LexisNexis 2003, p. 76).   12 Manegold of Lautenbach was the first medieval writer who made the combination of the notion of subjects’ rights with the idea of contract between the rulers and the ruled the core of his political doctrine (J.W. Gouth, The Social Contract, Oxford: Clarendon Press 1957, p. 32). Compare also Joseph Canning, A History of Medieval Political Thought 300–1450, Routledge, London-New York 1996, p. 105 and J. Nelson, ‘Kingship and empire’ in J.H. Burns (ed.), The Cambridge History of Medieval Political Thought, Cambridge University Press, Cambridge 2008, pp. 246–247. In the Middle Ages, in mediaeval Central Europe there was no comparable sophisticated argument which presented political relations in such strongly contractual terms. However, this is not to say that the notion of the consensual origin of secular power was absent there. For example, in the writings of legal scholars who lectured at the Jagiellonian University in Cracow at the beginning of the fifteenth century, such an origin was often referred to, despite the clearly Aristotelian perspective these writers shared (See Małgorzata Owczarska, ‘Uniwersytet Krakowski w europejskim dyskursie politycznym początku XV w.’ in Bellum iustum versus bellum sacrum. Uniwersalny spór w refleksji średniowiecznej. Konstancja 1414–1418, Zbigniew Rau,Tomasz Tulejski (eds)., Toruń: Wydawnictwo Adam Marszałek 2014, pp. 125–163, especially p. 152).  13 Leading Polish legal historians argue that the metaphor of such a contract of government expressed the relations between the elected monarch and the nobility (that is, the political nation) in the Polish-Lithuanian Commonwealth in the sixteenth century. See S. Kutrzeba, Historia ustroju Polski w zarysie, Poznań: Korona 2001, p. 142 and Z. Kaczmarek, B. Leśniodorski, Historia państwa i prawa Polski, vol. II, ‘Od połowy XV wieku do r. 1795’, J. Bardach ed.,Warszawa: PWN 1971, p. 116.

6  Zbigniew Rau et al.

This notion of shared responsibility for the Crown, that is, the responsibility of the monarch as well as his noble subjects which was to be found at the end of the Middle Ages, opened the door to the idea of mixed/republican government in early modernity. Indeed, the monarch and the bicameral parliament constituted the institutional guarantee for such an effective responsibility. In principle, the essence of the estate privileges which enjoyed the nobility consisted of four sets of rights:

The right of personal inviolability This first set of privileges referred to what we may call today personal freedoms. The most representative right of this group was personal inviolability, which implied that a member of the privileged group could not be arrested unless he had been previously condemned in a due judicial trail. Such a right was formulated in the Hungarian Golden Bull granted by King Andrew the Second in 1222 and repeated in several subsequent acts (for example, in the decree of King Louis I in 1351) and finally included in the fundamental collection of Hungarian law, Werbőczy’s Tripartitum in 1517. In Poland this right was formulated in the privileges granted by King Władyslaw II Jagiello in Jedlnia in 1430, and later repeated in Cracow in 1433, known by the name of the Latin phrase which expressed the essence of the rule – neminem captivabimus nisi iure victum. In 1434, Sigismund, Grand Duke of Lithuania, also pledged the right of personal inviolability to princes and nobles. The other important right that belonged to the broader scope of personal freedoms was that of religious liberty. Some elements of this appeared in the Czech lands, where the Hussite question arose in the fifteenth century. Indeed, in 1436, the Compactata of Basel created the legal basis for the legalisation of the Utraquist belief in the country. In turn, in 1609, the Charter on Religious Freedoms issued by the Holy Roman Emperor and Rudolf II, King of Bohemia, legalised non-Catholic religions. In Hungary as well as in the Polish-Lithuanian Commonwealth, where the Reformation spread rapidly and widely (usually the German-speaking burghers became Lutheran, while a considerable part of the nobility preferred Calvinism) two fundamental legal acts followed: the Edict of Torda issued by King John Sigismund in Transylvania in 1568, and the Act of the Warsaw Confederation of 1573. Although the latter did not have the strict form of a royal privilege, it emerged from the tradition of noblemen’s privileges and rights.14

 14  We must note that both Poland and Lithuania were multi-confessional countries before the Reformation. True religious tolerance toward the Protestants arose in the 1560s, when the sentences of the Church’s courts lost the execution of civil authorities. See J. Bardach, B. Leśnodorski, M. Pietrzak, Historia ustroju i prawa polskiego, Warszawa: PWN 1994, pp. 207–210, hereafter HUPP.

Why do we celebrate the anniversary of Magna Carta?  7

The right of the inviolability of property The right of the inviolability of property constituted the second set of fundamental privileges. First of all, this right implied that no member of the privileged group could be expropriated without the due process of law. Such a right was included in the Hungarian Golden Bull, as well as in the privilege of Czerwińsk granted by King Władyslaw II Jagiello in 1422 in Poland. However, the privileges concerning property also encompassed other rights, such as the free testimonial disposition of assets, which was included in the Hungarian Golden Bull and partially in the Czech charters of King John of Luxembourg in 1311. Another example of these rights was the protection of the value of money, which among other privileges was provided by the Hungarian Golden Bull. Finally, the privileges which secured the right of property also included the restrictions imposed on royal power in the area of levying taxes. Thus, in order to impose a new tax on the privileged groups, the king had to obtain their consent. This right, known also as tax immunity, the complete freedom from taxes, was ensured in the Hungarian Golden Bull and the Tripartitum, and in the Czech charters of King John of Luxembourg. There were similarities with the right which guaranteed the privileged nobility the remuneration for their participation in royal military expeditions abroad and demanded their consent for their participation in such a war. This was because the obligatory attendance of nobility in defensive wars justified in principle their privilege of tax exemption. Their defence of the country was considered a ‘tax paid with blood’.

The right to participate in state politics The third set of privileges, which embraced the participation in state politics, had a strictly political character. In fact, it resulted from the two above-mentioned rights concerning taxes and military expeditions. This dependency was particularly visible in Poland where the Privileges of Nieszawa, issued by King Kazimierz Jagiellończyk in 1454, prohibited the monarch from issuing any new laws, levying taxes, or summoning a levy in mass without the consent of the sejmiks (local assemblies of the nobles); this eventually gave rise to the emergence of the House of Deputies (that is, the lower house of the Sejm), which in turn led to the forming of the bicameral General Sejm. Finally, it was the Privilege commonly known after its Latin form as the Nihil Novi Statute of 1505 that granted the Sejm the right to cooperate with the monarch in the legislative process, which ended the need to apply to the king for the successive rights granted in royal privileges. In Lithuania, which generally followed this path in the first half of the sixteenth century, the Sejm was developed into a more or less regularly summoned gathering of the Lithuanian nobility, albeit with a much stronger position for the Council of Lords. The position of the Sejm was reinforced by the Second Lithuanian Statute of 1566 and the Union of Lublin of 1569. Similar developments took place in the Czech lands, where dual state power (consisting of the monarch and the Estates) emerged under the electoral

8  Zbigniew Rau et al.

privilege of King Albert II in 1437, and was later confirmed by subsequent monarchs. The right to participate in state politics also included political activities at the local or regional level which took place in the counties in Hungary, in the regional diets in the Czech lands, and the local diets in Poland and Lithuania. One of the oldest and most basic rights in the group of privileges that guaranteed participation in state politics was the free election of the monarch. This right constituted an old and basic rule in the Czech lands. It had already been stated by the Holy Roman Emperor Frederick II in the Golden Bull of Sicily of 1212, and received its fullest application in the Confederation of 1619 when the Bohemian throne became fully electable by the Estates. This right was also included in the Hungarian Tripartitum, which was commonly used in everyday life as a code of law, although formally it was not a binding constitutional law.15 The free election of the monarch also constituted a fundamental right in Poland and Lithuania.16 Moreover, since all the countries under discussion were very often ruled by foreign monarchs or found themselves under a personal union, the right to participate in state politics was usually strengthened by the privileges which guaranteed the access to land offices exclusively for the national or local nobility. Such privileges included those granted in Bohemia by King John of Luxembourg (especially in reference to the Provincial Court of Justice) in 1310/11, and by Grand Duke Kazimierz Jagiellończyk in Lithuania in 1447.

The right of resistance The right of resistance was both a kind of guarantee and an enforcement of all the above-mentioned privileges. The ius resistandi embraced the rule that if a king had violated these privileges, or the law more generally, the privileged group could resist him without committing the crime of disloyalty. In many cases, the implementation of this right depended upon a declaration by an ecclesiastical authority that the conduct of a monarch was unlawful. In Central Europe, this right was formulated for the first time in Hungary in the Golden Bull and repeated in the subsequent acts included in the Tripartitum. Although in the Czech lands ius resistandi was not explicitly formulated for a long time, it was effectively applied against King Václav IV in 1394–1395. Moreover, the Hussite wars led the representatives of the Czech estates to refuse obedience to the Holy Roman Emperor Sigismund as king. However, there is no doubt that the lack of any clearly formulated procedures which could be applied to the cases concerning rightful resistance revealed the weakness of this institution, which became especially visible during the Estates’ uprising against Ferdinand

  15 The free election of the monarch in Hungary was most important between 1301 and 1687, when in fact kings from all surrounding dynasties took the Hungarian throne. Until 1301, it was a hereditary monarchy; and after 1687, though the Parliament’s approval remained a necessity, the Hungarian Crown again became hereditary within the Habsburg dynasty, extended to female heirs with the Pragmatica Sanctio in 1723.   16  See the Henrician Articles of 1573, art. 1.

Why do we celebrate the anniversary of Magna Carta?  9

I in 1547. In fact, the right of resistance in the Czech lands was finally formulated at the Confederation of 1619. In Poland, this right could be originally traced back to the privilege of Louis I of 1351, but it was considerably strengthened at the beginning of the reign of Władysław III in 1434. In the Polish-Lithuanian Commonwealth it was most clearly and fully presented in the Henrician Articles of 1573.

The mixed/republican government The above-described privileges gave rise to the creation of a mixed form of government. Indeed, the limited character of royal power, combined with the right to participate in state politics enjoyed by the nobility, led to the institutionalisation of power sharing between the monarch and his noble subjects in the fifteenth and sixteenth centuries. As early as the fourteenth century the Czech nobility claimed their share in the responsibility for the common good. Consequently, by the middle of the sixteenth century balance of power between the monarch and the nobles (the Estates), called imperium mixtum, had been established in Bohemia.17 It is worth stressing that these legal and institutional changes were combined with the intellectual movement characteristic of the Renaissance. The classical republican ideal, which had been revived in the Italian city-states, arrived in Central Europe in the late fifteenth century, and deeply influenced political thought in the region.18 The most visible example of this phenomenon was to be found in the PolishLithuanian Commonwealth, which reached the peak of its geopolitical strength in the sixteenth and seventeenth centuries. Indeed, it was there that the background of noblemen’s rights which constituted the foundation of the rule of law combined an Aristotelian vision of political community and the appreciation of the Roman republica mixta to create a fully developed republican government (with a king elected by the entire political nation, who appointed the ministers, with a Senate consisting of the main office holders in the Commonwealth, and a Sejm consisted of members of parliament elected by all noble citizens and the independent Judicial Tribunal). This system embraced unique institutions that enabled the

  17 The mixed government in the Kingdom of Bohemia was spectacularly destroyed by the imposition of absolute rule which followed the defeat of the Estates’ uprising in 1620. Consequently, a major change to the Estates’ privileges followed. Josef Válka, ‘Dialog krále se stavovskými obcemi o způsobu vládnutí. Ferdinand I. a počátky absolutismu I’, Časopis Matice moravské, 124 (2005), pp. 429–450; Jaroslav Pánek, Stavovská opozice a její zápas s Habsburky 1547–1577. K politické krizi feudální třídy v předbělohorském českém státě (Praha, 1982); idem, ‘Politický systém předbělohorského českého státu’, Folia Historica Bohemica, 11 (1987), pp. 41–101.  18 However, it is necessary to indicate that the influence of republican political thought, and consequently of republican rhetoric, did not always lead to a domination of republican ideology in public life, or the acquisition of a distinctly republican character of government. Unlike the PolishLithuanian Commonwealth, in the Kingdom of Hungary the Ciceronian categories were strongly present in public discourse, but the dominant political language remained rather monarchist and contained clear Biblical undertones. See e.g. Peter F. Sugar, Péter Hanák,Tibor Frank (ed.), A History of Hungary, Bloomington: Indiana University Press, 1994, p. 94.

10  Zbigniew Rau et al.

broad participation of the noble citizens, and forced the rulers to seek their support in the decision-making process in a truly consensual manner.19 If we take into account the rights enjoyed by the nobility, as well as the institutions of mixed/republican government which evolved from these rights, we are in a position to understand why there were no serious domestic efforts (either intellectual, political, or legal) to introduce absolutism in early modern Hungary, Bohemia, Poland, or Lithuania.20 Moreover, the same rights and institutions meant that the nobles who possessed property enjoyed equal political and legal status.21 This equality opened the door to a kind of democracy within the ranks of this privileged group. This democracy was practised to the broadest, mass extent in the Polish-Lithuanian Commonwealth where every nobleman was entitled to elect the king. It is worth noting that the extent of this early modern phenomenon of democracy was truly unprecedented in European feudal societies, since the nobility approximated 10 per cent of the population in the country as a whole, and in some provinces up to around 50 per cent.22

Freedom under the law If we now take a more philosophical approach to describe the condition of freedom these privileges shaped, we can identify its four most characteristic features.23

  19 For example, see Dorota Pietrzyk-Reeves, Ład Rzeczypospolitej Polska myśl polityczna XVI wieku a klasyczna tradycja republikańska, Kraków: Księgarnia akademicka 2012, p. 196.   20 In fact, the only noteworthy (albeit failed) step toward absolutism planned in the Polish-Lithuanian state was the vivente rege election in the second half of the seventeenth century. However, it was envisioned and designed by the foreigners at the royal court (inspired by the queen, a native of France), and was to have been carried out with the support of foreign (French and Swedish) troops. See Stanisław Płaza, Rokosz Lubomirskiego, Kraków: KAW 1994, pp. 44–51, hereafter RL.   21 The Constitution of May 3, 1791 deprived the noblemen who did not possess property of land or political rights. See HUPP, p. 306.  22 See Joanna Choińska-Mika, Między społeczeństwem szlacheckim a władzą. Problemy komunikacji: społeczności lokalne – władza w epoce Jana Kazimierza, Warszawa: Neriton 2002, pp. 20–21. It is worth noting that this noble democracy guaranteed considerably wider access to state politics in the fifteenth to eighteenth centuries than the property census democracy did, for example in Britain in the seventeenth to eighteenth centuries. Indeed, the high percentage of the nobility in Central European societies, around ten percent in the Polish-Lithuanian Commonwealth and about five percent in Hungary, meant an equally high percentage of citizens who enjoyed full political rights. By the standards of European feudal societies of that time it was truly exceptional, since with an important exception of Switzerland, the percentage of the nobility in the West fluctuated around a mere 1 percent (Jonathan Dewald, The European Nobility, 1400–1800, Cambridge: Cambridge University Press 1996, pp. 22–25). What is even more important, as subjects to absolute monarchs they did not enjoy any comparable political rights.  23 Here we closely follow some elements of the classification of freedom outlined by Tim Gray in Freedom, London: Macmillan 1991, pp. 17–83. Compare also Z. Rau, Forgotten Freedom. In search of the Historical Foundation of Liberalism, Lodz University Press: Lodz 2004, p. 39–44. Q. Skinner, Liberty before Liberalism, Cambridge: Cambridge University Press, 1998. Id., ‘A Third Concept of Liberty’, Proceedings of the British Academy, 117, 2002, pp. 237–68.

Why do we celebrate the anniversary of Magna Carta?  11

First, there was freedom as status.24 This was identified with the group membership of political nation, that is, it was a collective as well as an individual attribute. Accordingly, freedom was conceived institutionally rather than behaviourally, since it was bound up more with who and what the person was, than what the person did. It was this status that differentiated those who belonged to the political nation, above all the nobility, from those who did not belong to it, especially from the serfs. To be free meant to be a free citizen. In fact, thanks to this status, only the members of the political nation were in full command of the circumstances of their own lives. Although the proper sphere of freedom was the public rather than the private, freedom as a status was also strongly felt in the private lives of those who enjoyed it. This was the case since: Second, there was freedom as non-interference. This conveyed an image of freedom identical with the sphere where persons interacted with one another in the absence of impediments.25 As long as the members of the political nation obeyed the law, no-one could legally intervene in their lives, either private persons or state power. In other words, any obstacles imposed upon them by human means were considered unlawful restrictions upon their freedom.26 Third, there was freedom as effective power.27 This meant that the freedom of the members of the political nation was in principle real rather than nominal. As such, it was truly meaningful for those who enjoyed it. It expressed their ability

  24 The most extensive presentation of this conception of freedom in contemporary political philosophy is to be found in Hannah Arendt, The Human Condition (New York: Doubleday 1959) and Between Past and Future (New York: Viking 1961). For a more analytical discussion of it, see Joel Feinberg, Rights, Justice and the Bounds of Liberty, Princeton: Princeton University Press 1980, p. 12.   25 Freedom as non-interference constitutes the essence of any classical liberal condition. The author who first popularised this conception was Hobbes, who conceived of freedom as unrestricted movement and unrestricted space. See Thomas Hobbes, A Dialogue between a Philosopher and a Student of Common Laws of England, Chicago: The University Press of Chicago, 1971, pp. 116–117.   26 For a discussion of this issue, see Stanley Benn and William Weinstein, ‘Being Free to Act and Being a Free Man’, Mind, 80, 1971, 197–198.   27 In contemporary philosophical discourse, this kind of freedom is used to present a class-oriented view of society. It usually contains the critique of a political system which fails to secure more than a façade of freedom for a considerable part of the population, or even the majority of it. The standard account of this kind of freedom was given by Schneider, who argues that freedom means not freedom from obstacles but freedom over them. See Herbert W. Schneider, ‘The Liberties of Man’, in Ruth Nanda Ashen ed., Freedom: Its Meaning, New York, Harcourt: Brace and Company, 1940, pp. 659–661. We find this kind of freedom particularly useful for analyzing the condition of the political nation in Central-East European early modern states, since their political systems purposefully, intentionally, and overtly excluded the overwhelming majority of the population from both nominal as well as real freedom. In fact, the freedom of the political nation was conceptualized as a radical alternative to the unfreedom of the rest of the population. Such an argument, based partially on an Aristotelian explanation of slavery and combined with an idea of inter-estate solidarity, can be found in one of the most representative Polish political writers of the seventeenth century, Andrzej Maksymilian Fredro. See his Scriptorum Seu Togae et Belli Notationum Fragmenta, Warszawa: NCK 2014, pp. 634–637.

12  Zbigniew Rau et al.

(legal, economic, social) to overcome the impediments they met in their way. Accordingly, the whole political system was based upon the assumption that their freedom was synonymous with effective power, and the possession of freedom presupposed the possession of effective power.28 Fourth, there was freedom as a pursuit of civic virtues. It meant that those who enjoyed it were not supposed to do what they wanted (which was considered licence and not freedom) but rather to serve the common good. To practice this kind of freedom required a person to renounce his lower or immediate desires, such as private wants, and to pursue his higher desires, such as public commitments or obligations. By pursuing civic virtues the person had to defeat evil, that is, the egoistic impulses of his nature, and attain control over the self. This kind of self-mastery required self-discipline since it was only the person’s inner strength that could bring about this balanced, integrated personality, and his ability to think and act in a sensible, self-aware fashion. It was only this personality that was morally and intellectually qualified to serve the common good, institutionalised by the state as a committed citizen at the time of peace and as a brave soldier at the time of war.29

The archipelago of freedom Where freedom was secured by law and exercised by the social and political practices of the numerous ranks of the privileged nobles, it had an enormous impact on the masses of the underprivileged non-nobles who were striving to gain the same or a similar status. In fact, the non-nobles were strongly motivated to use all possible legal procedures as well as to turn to non-legal practices to achieve it. The former was connected with the act of ennoblement which was granted for the outstanding services for the common good. In the medieval and early modern Czech lands, the ennoblement was an exclusive right of the king (including the granting of coats of arms). Such an elevated person had to be admitted to the noble estate with the consent of the Estate of the nobility. This was a precondition for obtaining the political rights and privileges in the country.30 In the Polish-Lithuanian

  28 The best indication of the truthfulness of this assumption was the situation of the numerous ranks of property-less nobility (szlachta gołota) in the Polish-Lithuanian Commonwealth who quickly – despite their formally equal status – became dependent upon the oligarchs as their economic clients. See HUPP, pp. 194–195.   29 This conception of freedom can be traced back to the reflections of Aristotle and Cicero. Its most characteristic assumption was that the freedom of a person did not constitute any origin of the common good but, rather, it resulted from and had to be harmonized with the common good. In the political discourse of the Polish-Lithuanian Commonwealth it was commonly considered an integral and permanent part of the social order. See Dorota Pietrzyk-Reeves, Ład Rzeczypospolitej. Polska myśl polityczna XVI wieku a klasyczna tradycja republikańska, Krakow 2012.   30 Vladimír Klecanda: Přijímání do rytířského stavu v  zemích českých a rakouských na počátku novověku (Praha, 1928); Josef Válka, Hospodářská politika feudálního velkostatku na předbělohorské Moravě (Praha, 1962), pp. 141–147.

Why do we celebrate the anniversary of Magna Carta?  13

Commonwealth after 1578 the nobility title was granted by the parliament (Sejm), except in times of war, when the king was allowed to honour exceptional military deeds in this way.31 As the military service was the source of the noblemen’s privileges, those who defended the Commonwealth were treated with special respect by the rest of the nobles, as was the case for the Polish peasant infantry in the sixteenth and seventeenth centuries. It was from their ranks that most brave soldiers were ennobled.32 Moreover, the Cossacks who served in the Commonwealth military forces aspired to noblemen’s status, which in fact was subsequently granted to the members of their elite following the provisions of the Treaty of Hadyach in 1658.33 In Hungary, the phenomenon of ennobling for bravery on the battlefield never took on a similarly broad dimension, but military service also kept the way open to a status comparable to that of the nobility. Back in the Middle Ages, the monarchs had given privileges to warrior-peasants settled in the border areas (for example the Szeklers).34 At the time of the occupation of the central part of the kingdom by the Ottoman Empire in the sixteenth and seventeenth centuries, the hajduks located along its extensive frontier received landed property and collective privileges for their military service. Moreover, the peasants of the frontier organised so-called ‘peasant counties’, a local self-government in which every village had its representatives.35 It was an acting local legislative, juridical, and police self-governing unit, although never formally recognised by the authorities. Where legal procedures to obtain noble status (or a comparable one) were not available, non-legal practices were left to be applied. In the Polish-Lithuanian Commonwealth such practices were quite popular and effective.36 A good example of

 31  See HUPP, p. 192. This was embodied by the symbol of the peasant infantryman Kasper Wieloch, who was ennobled after the siege of Velikiye Luki in 1580 as Wielkołucki and adopted the coat of arms of Jan Zamoyski, the most influential minister of that time. See Bartosz Paprocki, Herby rycerstwa polskiego, Krakow 1584, p. XCIX.  32  See Jan Wimmer, Wojsko polskie w drugiej połowie XVII wieku, Oświęcim: Napoleon V 2013, pp. 295–298.  33 See RL, pp. 6, 10–11. The Treaty of Hadyach created the Duchy of Ruthenia as a part of the Commonwealth but governed by the Cossack authorities.The failure of this project led to the partition of Ukraine between Russia and Poland, and finally, in the longer perspective, to the collapse of the Commonwealth.  34  See Telekes, Domokos: A székely határőrség története, Budapest, 1877; Egyed, Ákos: ‘A székelyföldi határőrrendszer kiépítése’, in Nagy Képes millenniumi hadtörténet. Rubicon, Budapest, 2000; Köpeczi, Béla ed.: History of Transylvania, Social Science Monographs, Boulder, Colorado; Atlantic Research and Publications, Inc. Highland Lakes, New Jersey. 2001–02.  35  See Gyárfás, István: A parasztvármegye, Budapest, 1882;Takáts, Sándor: Művelődéstörténeti tanulmányok a XVI–XVII. századból, Budapest, 1961; Szakály, Ferenc: Parasztvármegyék a XVII. és XVIII. században, Budapest, 1969.   36 When the corruption of witnesses was a common practice, one of the most popular legal procedures used to obtain this desirable status was the so-called reprobation or test of nobility. See HUPP, pp. 90, 192.

14  Zbigniew Rau et al.

these common attempts was the seventeenth-century book called Liber chamorum which listed more than 2500 names of peasants and townsmen who aspired to be noblemen.37 In turn, for those who were seeking freedom outside the legal system and decisively rejecting their status of serfs joined the Cossacks’ Zaporozhian Sich – which actually was only formally under the authority of the Polish-Lithuanian Commonwealth – to share the status of free warriors.38 All these legal procedures and non-legal practices indicated not only the obvious desirability of the noble status, but also relatively wide access to it. The latter was sometimes consciously and purposefully strengthened by public policies of the state.39 Despite the dominant and most privileged position of the noblemen, there were also other estates as well as ethnic and religious minorities, and even professional circles who exercised freedoms secured by law. Indeed, in the early modern, feudal societies of Central Europe, the freedom of the nobility or the political nation constituted both the core and the foundation of the mixed/republican government, although that freedom of itself did not constitute the whole scope of freedoms known in the region. The freedom of those who were not noblemen also originated in various privileges, and as such contained various elements (though never all of them) of the freedom enjoyed by the members of the political nation. Nonetheless, these privileges were often balanced by regulations which explicitly deprived their beneficiaries of the rights which would have made their position equal to that of the nobility. By any standards, the most privileged estate was the clergy of the Catholic Church. They were excluded from the state jurisdiction and subjected to canonical law as well as the laws laid down by their own local collegial bodies (such as provincial synods).40 Their property rights were secured and included the restrictions imposed

  37 Walerian Nekand Trepka, Liber generationis plebeanorum: Liber chamorum, Wrocław: Ossolineum 1995.   38 The most fortunate of them became the so-called ‘registered Cossacks’. The number of registered Cossacks – the warriors who enjoyed legally guaranteed possessed personal freedom and received remuneration – was a constant point of dispute between the Sich and the Polish authorities. See Tadeusz Nowak, Jan Wimmer, Historia oręża polskiego 963–1795, Warszawa: Wiedza Powszechna 1981, pp. 342–343.   39 Indeed, the Constitution of May 3, 1791 declared in Art. 4: ‘Complete freedom to all persons, both those newly arriving and those who, having removed from the country, now desire to return to their native land, insofar as every person newly arrived from any part, or returning, to the states of the Republic, as soon as he set foot upon Polish soil is completely free to use his industry as and where he will, is free to make agreements for settlement, wages or rents as and to such time as he agree, is free to settle in city or countryside, and is free to reside in Poland or to return to whichever country he wish; having previously acquitted such obligations as he had freely taken upon himself.’ The relative openness of the legal and non-legal channels of upward social mobility led to the absence of politically radical postulates to abolish the nobility (not to mention any attempts to eradicate them, as for example in revolutionary France). On the contrary, the unique character of this Central European phenomenon was the extension of freedom to the rest of the population by efforts to ennoble them.   40 In Poland, the privileges of 1210/1211–1215 gave the clergy privilegium fori, and therefore excluded them from the jurisdiction of the state courts.

Why do we celebrate the anniversary of Magna Carta?  15

on the royal power in the area of levying taxes,41 similar to those of the nobility.42 Moreover, the Church hierarchy widely participated in state politics. In Hungary, the Golden Bull of 1231 gave the Archbishop of Esztergom the right of jurisdiction over the king.43 In the Czech lands, the Estate of Prelates was established in the Moravian Margraviate, where a significant and powerful position belonged to the Bishopric of Olomouc.44 In the Polish-Lithuanian Commonwealth the bishops were members of the upper house of the parliament, while the Primate of Poland and Archbishop of Gniezno ruled the Commonwealth during the interregnum as the interrex.45 The other estate which enjoyed the legal status originated in the privileges granted by the monarch himself or the local secular or religious ruler (with his permission) was the burghers.46 Such privileges often included the legal exclusion of the town territory from the province as well as the burghers from the rest of the population, and included their right to self-governance, economic autonomy, criminal courts, and maintaining a militia. Within the city walls, the burghers usually enjoyed the private rights of personal inviolability and inviolability of property as well as public rights, including the right to vote. However, outside the city walls, most of them neither had the right of personal inviolability comparable with that of the nobility, nor were allowed to own land property as the nobility did. Similarly, their right to participate in state politics was rather limited. In this respect, the strongest position they enjoyed was in the Czech lands, where the free royal cities had political rights and formed the Estate of Boroughs. This Estate was a member of the Provincial Diet in both Bohemia and Moravia. In the Polish-Lithuanian Commonwealth the main cities (like Gdańsk, Poznań, Kraków, Wilno, Lwów, or Lublin) were privileged enough to participate in the parliamentary sessions, but exclusively with an advisory voice, and only when the cities’ business was discussed.47

  41 The privilege of 1381 established a fixed tax from the inhabitants of the land properties that belonged to the clergy.   42 Although the clergy were exempted from military duty, they were financially obliged to participate in the state’s war efforts. See HUPP, pp. 116–117, 237.   43 This was the right to excommunicate the king and his heirs following a reprimand, if the king or his heirs were to limit or breach the freedoms guaranteed in the Golden Bull.   44 The only reason why the establishment of this Estate was not extended to the rest of the Kingdom of Bohemia was the emergence and the expansion of the Hussite movement. However, the defeat of the Estates’ uprising in 1620 which led to the domination of Catholicism also caused the rise of the Estate of Prelates in the Czech lands. Zdeňka Hledíková, Svět české středověké církve (Praha, 2010); Jiří Mikulec a kol., Církev a společnost raného novověku v Čechách a na Moravě (Praha, 2013).  45 See HUPP, p. 216.   46 German town law was applied to most medieval towns in Central Europe, including Lübeck and Magdeburg law in the north, as well as Nuremberg or Vienna law in the south, which constituted the original sources of several variants emerged later on (including the Neumarkt-Magdeburg law (Środa Śląska) in the Kingdom of Poland as well as in the Grand Duchy of Lithuania and later the Polish-Lithuanian Commonwealth, and also Brandenburg, Litoměřice, and Olomouc law introduced into Bohemia). See HUPP, pp. 48–51.  47 See HUPP, pp. 195–196.

16  Zbigniew Rau et al.

In this context, it is also worth recalling the legal status of foreign settlers, especially those of German, Dutch, or Scottish origin. Regardless of their occupation, whether they were merchants in the cities or farmers in the country, or the source of their rights and obligations, whether they originated from a formal or even informal contract with a landlord or a royal privilege, they were always free people. Accordingly, in the Czech lands where the first foreign communities had already appeared in the early Middle Ages, they enjoyed the strong protection of the sovereign who determined their legal status including self-governance in religious and judicial matters. For example, the privilege prince Soběslav II bestowed upon the Germans in Prague at the end of the twelfth century the right to live their lives according to their own ‘law and justice’. In the thirteenth century, similar communities of other foreigners appeared in other large royal cities and enjoyed a comparable legal status.48 In Hungary, the German-speaking settlers, especially the Saxons who lived in the cities in the north of the kingdom as well as in South Transylvania, shared this status.49 Moreover, the foreign settlers in the Polish-Lithuanian Commonwealth enjoyed limited property rights, considerable elements of their own jurisdiction, as well as self-governance. As the result of various assimilation processes some of them, usually the Scots, acquired the status of nobility.50 Among the religious and ethnic minorities whose freedom was secured by law, the Jews were the strongest and by far the best organised. In the Czech lands in the Middle Ages, the Jews were under the protection and jurisdiction of the king, and their legal status was determined in the royal privilege Statuta Judaeorum of 1254–1262. In the Early Modern period, their rights were regulated by the resolutions of the Provincial Diets.51 Also in Poland, and later on in the Polish-Lithuanian Commonwealth, where most of Central Europe’s Jews lived, their legal status was regulated relatively early by medieval royal privileges which were subsequently reconfirmed, modernised and extended into early modern times.52 Moreover, these royal acts were superseded by private settlement privileges granted by

 48  Jiří Kejř, ‘Zwei Studien über die Anfänge der Städteverfassung in den böhmischen Ländern’, Historica 16 (1969), pp. 116–142.  49  See Friedrich von Teutsch, Geschichte der Ev. Kirche in Siebenbürgen (1150–1917), 1921; Tibor Fabiny, Geschichte der Evangelischen Kirche in Ungarn, Budapest, 1995.   50 See Peter Paul Bajer, Scots in the Polish-Lithuanian Commonwealth, 16th–18th centuries: the formation and disappearance of an ethnic group, Leiden, Boston: Brill, 2012.  51  Jana Zachová, ‘Un privilège de Přemysl Otakar II.’, Judaica Bohemiae 14, 1–2 (1978), pp. 71–74; Pavel Kocman, ‘Moravští židé a křesťanská justice v 16. a 17. století’, Jižní Morava 39, vol. 42 (2003,) pp. 7–18.   52 The Jews were granted their first general privilege in Poland in 1264 in Kalisz. This was based on the previous Austrian privilege, and soon became the pattern for the following privileges of 1295, 1299, 1334, 1364, 1367, 1388 both in Poland and Lithuania. The codifications of specific Jewish law were issued by royal orders in 1669 and 1765. See Stanisław Kutrzeba, Historia źródeł dawnego prawa polskiego, Tom II, Lwów-Warszawa-Kraków: Wydawnictwo Zakładu Narodowego im. Ossolińskich, 1925, pp. 298–317.

Why do we celebrate the anniversary of Magna Carta?  17

individual land owners to the Jews who lived in their lands and served them. In both cases, their status was that of free subjects, who had freedom of movement and the right to own real estate. They were neither obliged to contribute to the military efforts of the Crown, nor entitled to participate in state politics. However, they had the duty to pay taxes (the poll tax) levied by the state. They were subject to rabbinic law, and legal cases between them were decided by rabbinic courts (including an oath on the Torah), while in lawsuits involving both Jews and Christians royal courts were competent. Jewish self-governance had three levels (regulated only by customary law but recognised by the state authorities) which included the community, the province (sejmiki) and the country as a whole (sejm), one for Poland and another for Lithuania.53 One of its tasks was to distribute and collect the taxes levied by the state.54 Another prominent religious and ethnic minority whose freedom was protected by a set of royal privileges followed by private settlement privileges granted by individual private town owners was the Armenians.55 In the Polish-Lithuanian Commonwealth, the Armenians in principle shared legal status with the burghers in the towns and the cities where they settled down. However, their influential position as especially skilful craftsmen and successful merchants meant that they sometimes enjoyed more economic privileges than the rest of the urban population.56 The autonomy of their colonies embraced religious freedom, local self-governance,57 and judicial independence.58 They shared all the financial obligations and military duties which the burghers owed the cities and the towns they lived in.59 It is worth noting that there were some ethnic and religious minorities which actually enjoyed religious freedom without a defined legal status. Indeed, this was often the case in the Czech lands in the early modern period. For example, the Bohemian Brethren (a religious community, which separated from the Utraquists in 1457) formulated themselves (along with other Protestant churches) as the Czech Confession in 1575. Originally, the principles of the latter were only verbally

 53  See Borecki Paweł, ‘Uwagi o statusie prawnym wyznawców judaizmu na ziemiach polskich’, Czasopismo Prawno-Historyczne, Tom LXII, zeszyt 2, Warszawa 2010, p. 52.  54  See Wacław Uruszczak, Historia państwa i prawa polskiego, vol. I, wyd. 2, Warsaw: Wolters Kluwer 2013, p. 127.   55 Exclusive privileges for the Armenians first appeared in the royal location of Lviv in 1356. They also obtained privileges (1585, 1589) in Zamość, a private town of the Zamoyski family.   56 The royal privileges of 1633, 1642, 1654, 1661 confirmed and expanded the commercial privileges of Armenian population.   57 In Poland, the central Armenian juridical authority was seated in Lviv and Kamieniec Podolski. The Armenians were excluded from normal jurisdiction, even in the litigations where the other citizen took part in the procedure.   58 The Armenian code of law confirmed by the Polish king in 1519 was based on the Datastanagirku customary law. See HUPP, p. 197.   59 For a general outline of the social position and legal status of the Armenian community in the PolishLithuanian Commonwealth, see Mirosława Zakrzewska-Dubasowa, Ormianie w dawnej Polsce, Lublin: Wydawnictwo Lubelskie, 1982.

18  Zbigniew Rau et al.

confirmed by the king, and their freedom of conscience was finally established by the royal Charter on Religious Freedoms in 1609. Moreover, the Anabaptists, who mostly came to the Kingdom of Bohemia from southern Germany as religious exiles and settled especially in Moravia, enjoyed no special religious privileges, but stayed in the country due to the religious tolerance of the nobility they served.60 The most untypical legal status for a religious/ethnic minority was that of the Tatars. In the Polish-Lithuanian Commonwealth, the members of this Moslem community shared the social position of the nobility, enjoying personal freedom, owning land, and possessing serfs (usually Christians, with the exception of house servants). Like the nobles, they served in the armed forces (in the special cavalry units), but were not supposed (or allowed) to participate in state politics as the Christian nobles did (unless they converted to Christianity).61 The Tatars were subjected to the same jurisdiction as the nobles, but they were not allowed to testify in courts of law in certain civil procedures. In religious matters, they enjoyed full autonomy and self-governance.62 It is also important to recall another social group that enjoyed the status of free people (sometimes even that of the nobility). This group consisted of the members of the academic community. The founding document of the medieval university was the source of law for the academic corporation.63 Its members enjoyed selfgovernance and elected their authorities, including the rector himself. They were in principle excluded from the jurisdiction of both the municipal and royal officials. For example, the oldest academic institution in Central Europe, the Charles University in Prague, obtained the right to issue their own statutes and was exempt from paying taxes.64 Only in case of major crimes were the members of academic community to be judged by the Church (if they were clergymen) or royal courts of law (if they were secular persons). In the latter case, regardless of their national origin and social status, only the provisions of Roman law were applied.65 In some

  60 The Anabaptists were an important part of the economy of the aristocratic estates. Ferdinand Hrejsa, Česká konfese, její vznik, podstata a dějiny (Praha, 1912); Jiří Just, Rudolfův majestát 9.7.1609. Světla a stíny náboženské svobody (Praha, 2009); Josef Válka, Husitství na Moravě – Náboženská snášenlivost – Jan Amos Komenský (Brno, 2005); Jaroslav Pánek, ‘Religious Liberty and Intolerance in Early Modern Europe: the Wiedertäufer in Moravia, the Predecessors of the North American Anabaptists’, Historica 2 (1995), pp. 101–121.   61 See Tomasz Ciesielski, Anna Flipczak-Kocur, ed., Rzeczpospolita Państwem wielu narodowości i wyznań XVI–XVIII wiek, Warsaw, Opole: Wydawnictwo DiG, 2008, p. 222.   62 See Jacek Sobczak, Położenie prawne ludności tatarskiej w Wielkim Księstwie Litewskim,Warszawa, Poznań: PWN 1984, s. 222–230.   63 The first Central European universities were founded in the Middle Ages after their North Italian, French, and English counterparts but before the German ones. Accordingly, the university in Prague was established in 1348, in Cracow in 1364, in Pécs in 1367, in Buda in 1389. In the Polish-Lithuanian Commonwealth, the University in Vilnius came into being in 1579, in Zamość in 1594 (the Zamość Academy), and in Kiev in 1658 (the Kyiv-Mohyla Collegium, originally founded in 1632, was upgraded to university level).   64  Michal Svatoš, ed., Dějiny Univerzity Karlovy I. (1347/48–1622) (Praha, 1995).  65 See HUPP, p. 118.

Why do we celebrate the anniversary of Magna Carta?  19

cases, the members of academia were granted in corpore the status of nobility, such as those of the Jagiellonian University in Kraków.66 The omnipresence of this archipelago of freedom in the ocean of serfdom67 did create a spirit of freedom which was to be found in all social circles of early modern Central Europe. Indeed, this spirit was not confined to the most privileged group, that is, the nobles themselves, but was especially strongly manifested by those who could only aspire to the liberties the nobles enjoyed. This was especially the case when they were confronted with claims and practices of absolutist rule which they could neither understand nor justify. This point is best illustrated by a couple of examples from the seventeenth century PolishLithuanian Commonwealth. The political writers who most forcefully defended the Commonwealth republican government in their treatises published abroad were Jan Sachs and Jan Krzysztof Hartknoch, townspeople who never obtained noble status.68 It was the common people of Warsaw who fiercely protested in the name of freedom of speech against meeting Russian diplomatic expectations to burn books critical of the tsar.69 The Cossacks were deeply surprised when the tsar refused their demand to swear the rights of the Zaporozhian military unites during the Pereyaslav Agreement (1654), the event that subordinated Ukraine to Russia. The demand was quite natural in the political system of the Polish-Lithuanian Commonwealth the Cossacks had been born in, while it was completely unheard of for the Russians, whose tsar never swore anything to his subjects.70

The experience of unfreedom The freedom which flourished in the experience of early modern Central Europe did not survive its confrontation with the despotic and absolute rule that was

 66 See below the contribution by Dorota Malec. The first standing Hungarian university was founded only in 1635. It received the collective privileges of German universities, so no political representation, but self-governance and immunity were given. It was cancelled by the Enlightened absolutist ruler Joseph II in 1784. See Ödön Weszely, ‘Az egyetem eszméje és típusai’, in Minerva VIII., no. 4–7., Budapest, 1929., pp. 125–171.  67 We must additionally note that a second wave of serfdom, as Fernand Braudel described it, took place in Central Europe in the sixteenth and seventeenth centuries: “An economic conjucture with multiple effects was pushing Eastern Europe back, in the early sixteenth century, towards a colonial destiny as a producer of raw materials, a development of which the second serfdom was only the most visible sign.” Fernand Braudel: The wheels of commerce – Civilization and Capitalism, 15th–18th Century, University of California Press, Berkeley, California, 1992, p. 267.  68  Jan Sachs, De scopo Reipublicae Polonicae, adversus Hermannum Coringium, professorem Helmstadiensem, dissertatio qua simul Status Regni Poloniae novissime describitur,Wrocław 1665. and Jan Krzysztof Hartknoch, De republica Polonica libri duo, quorum prior historiae polonicae memorabiliora, posterior autem jus publicum reipubl. polonicae, lithuanicae provinciarumque annexarum comprehendit, Lipsk 1698.  69 See RL., p. 20.  70  See Zbigniew Wójcik, Dzikie Pola w ogniu. O Kozaczyźnie w dawnej Rzeczypospolitej, Warsaw: Wiedza Powszechna 1960, pp. 249–257.

20  Zbigniew Rau et al.

eventually imposed by its powerful neighbours. Indeed, the common fate of all these countries was the loss of their national independence and state sovereignty as a result of foreign aggression.71 What was crucial in all these cases was not the bare political dependence of these countries on foreign rulers, or even their new status as provinces of their empires, but the replacement of their domestic freedom under the law most often by lawless, arbitrary, foreign rule. Thus, the essence of the foreign domination was the rejection of values, the destruction of institutions, and the suppression of practices in which freedom could prevail. These processes took place at different times in different countries, and usually to different degrees of intensity. Yet all of them had the same results. The loss of personal freedom and civic liberty brought the consequence of the loss of national independence and state sovereignty. Accordingly, the struggle to regain national independence and state sovereignty was the best and surest way to re-establish personal freedoms and civic liberties.

Hungary The Kingdom of Hungary was the first country in Central Europe to become a victim of absolute, or rather despotic rule. In 1526, after the battle of Mohács, the Ottoman Empire began the occupation of its central part, while the rest of it maintained its independence in the western and northern areas, as well as in Transylvania in the east where an independent state (Transylvania) emerged at the end of the sixteenth century. It is there that the old constitutional privileges and rights survived (including the principle of free royal election, the coronation oath, the parliament with the right to approve taxes),72 while the central (Turkish) part of Hungary suffered insecurity and the lawlessness of the frontier. The Habsburg dynasty who gained the Hungarian Crown (albeit only in the west and the north) in the sixteenth century made considerable efforts to introduce absolute rule there (as they did in the Austrian part of the empire). Yet the nobility, as well as the soldiers fighting the Turks at the frontier, managed to defend their liberties over the sixteenth and seventeenth centuries. In the seventeenth century, the numerous military actions taken against the Habsburgs (and supported by

  71 However, Hungarian legal historians strongly maintain that Hungary never disappeared from the map, as it maintained its country, a crowned sovereign, some territory, and independence. The most debated of these times was between 1849 and 1867, when Hungary was declared to be a region of the Austrian Empire, but even that is abridged by the notion of legal continuity widely accepted among Hungarian legal historians to explain why Hungary today can claim a history of over 1000 years.  72 See Peter F. Sugar, Péter Hanák, Tibor Frank (ed.), A History of Hungary, Bloomington: Indiana University Press, 1994, pp. 90–91, and Miklós Molnár, A Concise History of Hungary, Cambridge University Press 2001, pp. 104–105, hereafter CHH.

Why do we celebrate the anniversary of Magna Carta?  21

Transylvania),73 including those of István Bocskai, Gábor Báthory, and the Rákóczis were seen as a struggle for the old and new freedoms, and conceived of the classical use of ius resistendi against absolute rule. However, after the Reconquista, when the combined Polish and imperial forces defeated the Turks at the battle of Vienna in 1683 and the Habsburgs gained the Hungarian territories previously occupied by the Ottomans, the parliament renounced the ius resistendi (1687). Despite that, the basic constitutional privileges and rights were secured and enjoyed.74 This is not to say that the Habsburgs gave up their efforts to introduce absolutism in Hungary. In fact, there were several short-lived attempts to demolish the constitutional order of rights, which often went hand in hand with intensive Counter-Reformation projects.75 Usually, they caused resistance which aimed against absolutism and promoted religious freedoms (their best known example was the ‘Rákóczis’ insurrection of 1703–1711, launched and conducted under the famous motto Cum Deo pro Patria et Libertate).76 Moreover, the Enlightenment gave a new impulse to absolutist policies – this time justified in terms of reason and progress – which were aimed at centralising and expanding imperial power at the expense of the rights of its subjects. A good case in point was the decision by Joseph

 73 For the role of Transylvania in the anti-Habsburg military efforts in the seventeenth century, see CHH, pp. 115–122.    Instead of battle, the religious pluralism helped tolerance, which was legislated by King Jan Zygmunt in Transylvania (1568). See the Act of Religious Tolerance and Freedom of Conscience:‘His majesty, our Lord, in what manner he – together with his realm – legislated in the matter of religion at the previous Diets, in the same matter now, in this Diet, reaffirms that in every place the preachers shall preach and explain the Gospel each according to his understanding of it, and if the congregation like it, well. If not, no one shall compel them for their souls would not be satisfied, but they shall be permitted to keep a preacher whose teaching they approve.Therefore none of the superintendents or others shall abuse the preachers, no one shall be reviled for his religion by anyone, according to the previous statutes, and it is not permitted that anyone should threaten anyone else by imprisonment or by removal from his post for his teaching. For faith is the gift of God and this comes from hearing, which hearing is by the word of God’.The Edict of Torda, at Access: July 23, 2015.   74 The Habsburg absolutism was more dominant in Transylvania in the eighteenth century, after losing its quasi-independent status. Zsolt Trócsányi, Habsburg-politika és Habsburg-kormányzat Erdélyben: 1690–1740 [Habsburg politics and Habsburg governance in Transylvania: 1690–1740], Akadémiai Kiadó, Budapest, 1988; Gábor Barta: Erdély rövid története [A Brief History of Transylvania], Akadémiai Kiadó, Budapest, 1989; Rogers Brubaker: Nationalist Politics and Everyday Ethnicity in a Transylvanian Town, Princeton University Press, Princeton, New Jersey, 2006, pp. 90–91.   75 The Protestant Cause was joined to the constitutional liberties of Hungary. On the counterreformation and other clashes related to the religious differences of that time, see e.g. Géza Herczegh: Magyarország külpolitikája, 896–1919 [Hungary’s foreign policy, 896–1919], Kossuth, Budapest, 1987, (e.g. p. 158); Henrik Marczali: Az ellenreformáció kora: reformok és ellenreformok [The era of the counterreformation: reforms and counter-reforms], Franklin Révai, Nagy képes világtörténet 8. Kötet, Révai, Budapest, 1925–1935.   76 The beginning of Rakoczi’s banner:‘Rescrudescut diutina inclytae gentis Hungariae vulnera’ – “Once again, the ancient wounds of the glorious Hungarian nation are open”. On Rakoczi’s insurrection, see Miklós Molnár, A Concise History of Hungary, 133–138; Ágnes R.Várkonyi, Domonkos Dániel Kis, A Rákóczi-szabadságharc [The Rákóczi insurrection], Osiris, Budapest, 2004.

22  Zbigniew Rau et al.

II, the most reform-minded emperor, not to take the Hungarian coronation oath as he did not want to be constrained by Hungarian law.77 In the nineteenth century, a reform movement inspired by the nobility emerged, combining a program of political and economic modernisation with the defence of the old constitutional liberties and freedoms. This included a spread of the nobility’s rights to the common people, that is, a considerable enlargement of the ranks of the political nation. The result of this effort was the April Laws of 1848, which were intended to establish a parliamentary monarchy and carry out further constitutional reforms.78 The Habsburgs intended to withdraw from some of these projects, which in turn provoked a war of over a year in which the Hungarians were determined to defend their reforms. Finally they were defeated, but only thanks to Russian intervention in support of the Habsburg rule. The collapse of the insurrection was followed by the executions of numerous reformers (including Lajos Batthyány, the Hungarian prime minister) and the emigration of the rest of them.79 The emperor imposed the ‘octroyed’ Constitution of Olmütz (in March 1849) and a 15-year-long period of stable absolute rule began. However, the empire proved too weak to afford the longterm alienation of Hungary. Accordingly, the Dual Austro-Hungarian monarchy was established in 1867. The old Hungarian constitution was renewed and the Habsburg emperor, Franz Joseph, took the Hungarian coronation oath. This act opened a relatively prosperous period in Hungarian history which lasted until the First World War. Its end brought about a series of dramatic events including the short lived Soviet Republic under Béla Kun,80 the occupation of Budapest in 1919, and finally the Treaty of Trianon in 1920 when Hungary lost two-thirds of its historic territory. All this resulted in the military autocracy of Admiral Miklós Horthy which effectively lasted until March 1944. This was the time when the Germans implemented Operation Margarethe, occupied Hungary and eventually established a dependent government based on the local semi-Nazi Arrow Cross Party. This first experience with a totalitarian system was quickly followed by a second, much longer one. After the Second World War, Hungary found itself within the Soviet sphere of interest

 77  Derek Beales: Joseph II, Volume II – Against the World 1780–1790, Cambridge University Press, Cambridge, 2009, p. 63.  78 The April Laws, adopted on April 11, 1848, consisted of thirty-one separate articles (today these would be separate acts) as well as an introduction and the closing remarks. For the transition into a constitutional parliamentary monarchy, Article III was very important in setting up a Hungarian government that is responsible to the parliament. For the original language text of the Laws, see Access: July 23, 2015. See also, e.g. István Deák: Kossuth Lajos és a magyarok 1848-1849-ben [Lajos Kossuth and the Hungarians in 1848–1849], Gondolat, Budapest, 1983.   79 For the events of 1848–1849 in general, see e.g. György Spira, A magyar forradalom 1848-49-ben [The Hungarian revolution in 1848-49], Gondolat, Budapest, 1959. Specifically on the trial and execution of the 13 martyrs, see Albert Bartha, Az Aradi 13 vértanú pörének és kivégzésének hiteles története [The official history of the trial and execution of the 13 martyrs of Arad], Kellner és Kiss, 1930; Iván Ordas, Az aradi tizenhárom [The thirteen of Arad], Móra, Budapest, 1988; Éva Somogyi: Abszolútizmus és kiegyezés [Absolutism and Compromise], Gondolat, Budapest, 1981.   80 B. Menczer, ‘Béla Kun and the Hungarian Revolution of 1919’, History Today,Vol. XIX, Issue 5, May 1969, p. 299–309.

Why do we celebrate the anniversary of Magna Carta?  23

and a very crude form of Soviet-type regime was rapidly implemented, including the Stalinist constitution of 1949 (based on its Soviet counterpart of 1936).81 The economic hardships, Stalin’s death, and the Austrian Independence Treaty (1955) provoked a student demonstration in October 1956, which ended in bloody street clashes in Budapest. Beside political pluralism, the main demand was the independence and the neutrality of Hungary. (‘Russians go home!’ was written on walls everywhere). It was a national uprising against the occupying and ruling foreigners, without ideological reference to capitalism or socialism. After some clashes, the demoralised Soviet armed forces were forced to evacuate Budapest, but in a couple of days fresh troops arrived and occupied the country again. There were fights, protest, and demonstrations, with numerous casualties, mainly young workers who were the backbone of the freedom fighters. The terror that followed in 1956 was harder than in 1849, more people were executed, and Hungary returned to being a totalitarian dictatorship. Direct Soviet control disappeared from the everyday life, and the Hungarians oppressed one another and served their foreign ruler by mutual observation, like the females in the seraglio in Montesquieu’s Persian Letters. Hungary regained its independence more than 30 years later in 1989.

The Czech lands In 1526, the lands of the Czech Crown became a part of the Habsburg monarchy. It was quite a disjointed state formation, consisting of three separate and already constituted units: the Austrian, Czech, and Hungarian lands, which were internally divided into both historical entities and ethnical communities. Originally, the monarchy was a personal union, under which the Habsburgs, starting with Ferdinand I, tried to exercise centralising policies. These were aimed not only at strengthening the position of the sovereign, but also at overcoming the divisions and vested interests of the particular land communities of the Estates and, ultimately, at offering an effective defence against the Ottoman expansion.82

 81 During the 1919 attempt to form a Soviet the then sitting Parliament, which was in retrospect deemed unrepresentative, adopted a written constitution, but due to the lack of popular support for this body, it is not acknowledged as the country’s first written constitution.This is in fact Act Nr. XX of 1949, which was Hungary’s first written constitution, replacing the so-called historical constitution, namely the collection of basic laws that the country considered its foundation.The new Fundamental Law of 2011, however, in its National Avowal of Faith, excludes all constitutional developments of the country that happened between March 19, 1944 and May 2, 1990, thereby dismissing the Hungarian Constitution. On the constitution of the Soviet attempt in 1919, see Barna Mezey (ed.), Magyar alkotmánytörténet [Hungarian Constitutional History], Osiris, Budapest, 2003, pp. 449–451.  82 Robert John Weston Ewans, The Making of the Habsburg Monarchy 1550–1700 (Oxford, 1998); Joachim Bahlcke, Regionalismus und Staatsintegration im Widerstreit. Die Länder der Böhmischen Krone im ersten Jahrhundert der Habsburgerherrschaft (1526–1619) (München, 1994); Petr Vorel, Velké dějiny zemi Koruny české,Vol.VII (1526–1618) (Praha – Litomyšl, 2005). For the foundations of constitutional development, see Jaromír Čelakovský, Povšechné české dějiny právní (2nd edn., Praha, 1900); Jan Kapras, Právní dějiny zemí Koruny české (3 vols., Praha, 1913–1920); Bohumil Baxa, Dějiny práva na území republiky československé (Brno, 1935); František Čáda, Povšechné právní dějiny československé (Brno, 1947).

24  Zbigniew Rau et al.

The battle of the White Mountain in 1620 was a turning point in the history of Czech freedom. Indeed, the model of mixed government was brutally overwhelmed by Habsburg’ absolutism, which was marked by the execution of twenty-seven leaders of the Bohemian insurrection, and led to a dramatic decrease in the population. By the confiscation of land estates and forced emigration, the Habsburgs created the new loyal German elites which deprived even the remaining privileges and rights of their ratio legis.83 The formation of the modern Czech nation commenced in the last quarter of the eighteenth century in connection with the defence of the Czech language, which was restored in its role as the language of the Czech intelligentsia. At this time Czech society resisted the reforms carried out by Empress Maria Theresa and her son Joseph II. These led to the political centralisation and legal unification of the Habsburg monarchy, and consequently resulted in the systematic administrative separation of the Kingdom of Bohemia and the Margraviate of Moravia (two Provincial Diets, two supreme administrative land offices). This meant a factual cessation of independent Czech statehood, and as such constituted the most powerful disintegrating factor in the formation of the modern Czech nation. 84 In the course of the nineteenth century, Czech political representation strived to assert the constitutional autonomy of the Czech lands. Its base was the concept of Czech historic constitutional law as the sum of older laws, privileges, and customs stipulating the legal position of medieval Czech statehood, i.e. the Czech Crown and its legal rules. The establishment of the Dual Austro-Hungarian monarchy in 1867 was a decisive step backward for these efforts. In fact, it was a spectacular rejection of the historically evolved constitutional basis of the Czech Crown, since its lands had become an integral part of the Austrian unit of the Dual Monarchy.85 The idea of independent Czech statehood materialised only after the First World War when Czechoslovakia was established in 1918. The independence of the new state was based upon freedom and democracy. Fundamental human and civil rights were enshrined in the Constitution of 1920. Czechoslovakia remained the last island

 83  Josef Petráň, Staroměstská exekuce (Praha, 2004); Josef Pekař, Bílá hora. její příčiny a následky (Praha, 1921); Ivana Čornejová, Jiří Kaše, Jiří Mikulec, Vít Vlnas, Velké dějiny zemí Koruny české, Vol. VIII (1618–1683) (Praha – Litomyšl, 2008); Georg Schmidt, G. et al., eds., Kollektive Freiheitsvorstellungen im frühneuzeitlichen Europa (1400–1850) (Frankfurt am Main, 2006); Halina Manikowska and Jaroslav Pánek, eds., Political Culture in Central Europe (10th–20th Century). Part I: Middle Ages and Early Modern Era (Prague – Warsaw, 2005).  84  Pavel Bělina, Jiří Kaše, Jan P. Kučera, Velké dějiny zemí Koruny české, Vol. X (1740–1792) (Praha – Litomyšl, 2001); Josef Kočí, České národní obrození (Praha, 1978).  85 Jiří Kořalka, Tschechen im Habsburgerreich und in Europa 1815–1914. Sozialgeschichtliche Zusammenhänge der neuzeitlichen Nationsbildung und der Nationalitätenfrage in den böhmischen Ländern (Wien – München, 1991); Hugo Toman, Das böhmische Staatsrecht und die Entwickelung der österreichischen Reichsidee vom Jahre 1527 bis 1848 (Prag, 1872); Josef Kalousek, České státní právo (2nd edn., Praha, 1892); Karel Malý and Ladislav Soukup, eds., Vývoj české ústavnosti v letech 1618–1918 (Praha, 2006).

Why do we celebrate the anniversary of Magna Carta?  25

of democracy in Central Europe until 1938, when it was abandoned by its Allies and thrown to Nazi Germany. At the end of the Second World War Czechoslovakia, along with other Central European countries, found itself in the Soviet sphere of interest.86 Thus, in 1945 democracy was not renewed. Only some political parties could compete in the parliamentary elections of 1946, and the position of the Communist party was clearly stronger, resulting from its popular support. However, this did not prevent a government crisis in 1948 which led to an open Communist coup d’etat and the establishment of a full Soviet-style totalitarian system. In 1948, a Stalinist constitution was imposed. Unlike in the Soviet Union itself or Poland, there were no de-Stalinisation policies in Czechoslovakia until the late 1960s, and a harsh Communist dictatorship prevailed. In 1968, a slight liberalisation process within the communist party took place and resulted in the abolition of censorship as well as some economic reforms. But the Soviet Union considered even these modern efforts to experiment with what was later called ‘socialism with human face’ a threat to its interests in Central Eastern Europe. Consequently, the Prague Spring of 1968 ended with the invasion by Warsaw Pact armies. Despite the spectacular activities of some pockets of the sophisticated dissident movement symbolised by Charter 77, the totalitarian policies were successfully restored and lasted until the collapse of Communism in 1989. Czechs and Slovaks had to wait for the restoration of human rights, democracy, and the rule of law for fifty-one years after 1938.87

Poland Before having been finally partitioned by Russia, Prussia, and Austria in 1795, the Polish-Lithuanian Commonwealth had its hour of glory, when the so-called ‘Great Sejm’ (1788–1792) adopted the constitution on 3 May 1791. It was the first European constitution which combined the local republican tradition with some Enlightenment ideas and the requirements of effective government. Probably this led directly to its collapse as the neighbouring absolute monarchies could not have tolerated such a threat to their internal stability.88 As a result, the partitioned

 86  Zdeněk Kárník, České země v éře první republiky, Vol. I–III (Praha, 2000–2003); Igor Lukeš, Československo mezi Stalinem a Hitlerem. Benešova cesta k Mnichovu (Praha, 1999); Karl Bosl, ed., Die demokratisch-parlamentarische Struktur der Ersten Tschechoslowakischen Republik (München – Wien, 1975).  87  For a more recent basic overview, see Jaroslav Pánek and Oldřich Tůma et al., A History of the Czech Lands (Prague, 2011), p. 463–617; from other works Karel Kaplan, Political persecution in Czechoslovakia 1948–1972 (Köln, 1972); Karel Kaplan, Die politischen Prozesse in der Tschechoslowakei 1948–1954 (München, 1986); Jiří Kosta, Die tschechoslowakische Wirtschaftsreform der sechziger Jahre (Marburg, 1993); Beata Blehova, Der Fall des Kommunismus in der Tschechoslowakei (Wien, 2006).  88 For more details on the political system of the Polish-Lithuanian Commonwealth in that epoch and its ideology based on the principle of freedom so dangerous for absolutist monarchies, see R. Butterwick, ‘Political discourses of the Polish Revolution, 1788–1792’, English Historical Review, vol. 120, 2005, pp. 695–731.

26  Zbigniew Rau et al.

Poles become the first political nation, and not merely an ethnic group, in Europe deprived of its own statehood.89 This resulted in a series of at least 11 uprisings against the Russian, Prussian and Austrian oppressors between 1768 and 1921.90 One of the first experiences of the former citizens of the Polish-Lithuanian Commonwealth under foreign rule was the condition of everyday life in an absolutist state. This usually included censorship, the absence of tax privileges for the nobility, the limitation of the right of association (under Prussian rule)91 as well as the lack of personal inviolability and the inviolability of assets, inequality within the noble estate, and the absence of political rights (under Austrian rule).92 The period of Napoleonic wars and the creation of the Duchy of Warsaw (1807), a small French-dependent state in the central part of Poland with a constitution based on various French solutions of the time, brought about enormous hopes for the imminent restoration of independence to the rest of the former territories of the Polish-Lithuanian Commonwealth. Most of these hopes were dashed when the neighbouring absolute monarchies decided their fate at the Congress of Vienna in 1815. In fact, slowly but surely, absolutism was re-imposed in various constitutional entities and political constellations. The most interesting case was that of the Kingdom of Poland, which was created at the Congress of Vienna on the basis of most of the territories of the former Duchy of Warsaw. It was shaped as a constitutional monarchy attached by personal union to the Russian Empire. The formally liberal constitution granted by the tsar in 1815 contained a wide spectrum of civil liberties, including freedom of

 89 The passage of the partitions of Poland was very accurately described by Lord Acton in his essay ‘Nationality’ published by the Home and Foreign Review (July 1862): “Poland did not possess those securities for stability which were supplied by dynastic connections and the theory of legitimacy, wherever a crown could be obtained by marriage or inheritance. A monarch without royal blood, a crown bestowed by the nation, were an anomaly and an outrage in that age of dynastic absolutism. The country was excluded from the European system by the nature of its institutions” and “Till then no nation had been deprived of its political existence by the Christian Powers, and whatever disregard had been shown for national interests and sympathies, some care had been taken to conceal the wrong by a hypocritical perversion of law. But the partition of Poland was an act of wanton violence, committed in open defiance not only of popular feeling but of public law. For the first time in modern history a great State was suppressed, and a whole nation divided among its enemies”. The partitions were also highly criticized by Edmund Burke.   90It is worth indicating that Kazimierz Pułaski and Tadeusz Kościuszko, the leaders of the first two uprisings in 1768–1772 and in 1794, were also heroes of the American war of independence. In turn, the Polish efforts to regain independence usually met with support from American society of the time. For example, at the time of his visit to America de Tocqueville was surprised how Americans emotionally reacted to and supported the Polish insurrection of 1830–1831. See Alexis de Tocqueville, Recollections: The French Revolution of 1848, New Brunswick: Transaction Publishers, 1987, ed. J.P. Mayer and A.P. Kerr, pp. 115–120, hereafter RFR. and JEI, pp. 45–47; and also George Wilson Pierson, Tocqueville in America, Baltimore, London: The John Hopkins University Press 1996, 357–361.   91 With reference to Prussia see: Artur Korobowicz,Wojciech Witkowski, Ustrój i prawo na ziemiach polskich od rozbiorów do odzyskania niepodległości, Lublin: Morpol 1996, pp. 16, 154, hereafter UPZP. Under Prussian rule this included censorship, tax serfdom, or limitation of associations. UPZP, pp. 26–27.  92 UPZP, pp. 16, 154.

Why do we celebrate the anniversary of Magna Carta?  27

speech and freedom of conscience, personal inviolability, and inviolability of assets extending from the noblemen to all the inhabitants of the country.93 Moreover, the Parliament of the Kingdom was to be elected directly by members of all the social classes.94 However, a political constellation in which the tsar – an absolutist monarch in Russia – was a constitutional king in the conquered part of Poland, could not have worked well. In fact, the violation of the constitution by the tsar was a constant and growing process.95 It was only terminated as a result of the Polish uprising and the Polish-Russian war of 1830–1831. The defeat of this insurrection was naturally followed by massive violations of personal and property inviolability and the abolition of the Poles’ political rights in both the Kingdom and in the eastern lands of the former Polish-Lithuanian Commonwealth which had been directly annexed to Russia (today’s Belarus, Lithuania, and the Ukraine).96 A similar scenario, of massive persecutions combined with further violations of personal and property inviolability, was carried out after the next defeated insurrection of 1863–1865.97 In fact, martial law in the Russian part of Poland lasted formally in the periods 1833–1856 and 1861–1862, and again from 1863 in various forms until 1905 when it was abolished. The Empire’s policy of Russification in the second half of the nineteenth century led to a ban on using the Polish language at schools, and to religious persecutions whose victims were predominantly Roman and Greek Catholics.98 The pattern of the Kingdom of Poland was followed by another Polish political entity created on the territory of the former Duchy of Warsaw by the Congress of Vienna – the Great Duchy of Poznan. It constituted a small part of the Prussian occupation which, in the years 1815–1848, enjoyed only a very limited autonomy, and the participation of the citizens in the self-government (a local diet, elected in a very complicated way, which was intended to play only an advisory role) was rather symbolic.99 In principle, the inviolability of persons and property was observed according to the provisions of Prussian law.100

 93 UPZP 72–73, HUPP, pp. 361–363.  94 HUPP, p. 361.  95  HUPP, pp. 363–365. It is enough to say that the parliament which should have been convened every two years was actually summoned only four times between 1815 and 1830. Moreover, in 1819 censorship was introduced, and the old privilege of personal inviolability neminem captivabimus nisi iure victum was altered into neminem captivari permittemus nisi iure victum, which was interpreted to mean that the tsar himself possessed the right to send a suspected person to prison.  96  UPZP, pp. 38–39, 76–77, 88–89, 133–136.The most drastic measures taken by the Russian authorities included: 1) the abolition of the constitution, the parliament, the local diets, and the armed forces; 2) the introduction of the restrictive Russian penal code in the place of the relatively liberal Polish one of 1818; 3) the large-scale confiscation of land under the tsar’s act of March 22, 1831; 4) the closure of the University of Warsaw; and 5) the incorporation of the territory of the Kingdom of Poland into the Russian Empire as its province.  97  UPZP, p. 81. It is worth indicating that political rights were not restored to the Poles under Russian rule till 1905, and even later they remained very limited.  98 UPZP, p. 82.  99 UPZP, pp. 151–153. 100  See Constitution of the Kingdom of Prussia of 1850, art. 5–9.

28  Zbigniew Rau et al.

However, this state of affairs was dramatically changed in the turmoil of 1848 when the new Polish uprising was followed by a period of persecutions. It was in this way that the province obtained the status of other Polish territories under Prussian rule (Pomerania, Warmia, Silesia, Lubusz Land) which had no national autonomy whatsoever. Although the policies of Germanisation had been carried out since the partition, they developed fully after the unification of Germany. Property rights and the rights to schooling in one’s native language became the subject of especially heavy violations.101 Moreover, in Protestant Prussia, as in the Eastern Orthodox Russian Empire, the freedom of conscience enjoyed by the Poles (overwhelmingly Roman Catholics) was radically limited. Thus, the struggle for its expansion turned into one more battlefield for the human, civil, and national rights of the Poles under Prussian rule. Another Polish political entity created on the territory of the former Duchy of Warsaw by the Congress of Vienna was the small, republican Free City of Cracow, which was established by and existed under the constant patronage of three partitioning powers. It ceased to exist in 1846 after the insurrection in February of that year and was eventually incorporated into Austria. The Austrian policy toward the Poles varied at different times. In fact, it was more repressive before 1867, with its bloody climax in 1846 during the Cracow insurrection paralleled with the peasants’ rebellion inspired by the Austrian authorities. After the emergence of the Dual Austro-Hungarian Monarchy in 1867, the Austrian policies towards the Poles relaxed considerably and became by far the most liberal among all the partitioning powers. The independence regained in 1918 brought freedom back to Poland. The constitution of 1921 guaranteed free elections and voting rights equally to men and women, and the full restoration of personal and property inviolability was guaranteed by the state. The coup d’état of 1926 and the following mild dictatorship of Marshal Józef Piłsudski changed the situation, resulting in the violation of both these rights, but never on a massive scale. The constitution adopted in 1935 considerably limited the position of the parliament and established the particularly strong power of the executive. The Ribbentrop-Molotov pact of 1939 and the beginning of the Second World War opened another period depriving Poland of national independence and state sovereignty. Both Nazi Germany and the Soviet Union aimed at the annihilation of Poles and their political and legal culture. All human rights of all the citizens of Poland – Poles, Ukrainians, Belarusians, Jews, Gypsies, and others – were violated on the most massive scale and in the most cruel way. The Poles responded not only by fielding the regular armies that fought on all fronts from the very beginning to the end of the Second World War in Europe, but also by organising the underground resistance movement based on the impressive and omnipresent institutions

101  UPZP, pp. 16, 157, 160.

Why do we celebrate the anniversary of Magna Carta?  29

of the Polish Underground State. The Warsaw Uprising of 1944 was the most spectacular and tragic of many actions against German occupation (including the Warsaw Ghetto Uprising of 1943). However, the military efforts also continued against the Soviet domination established after the war, most intensively between 1944 and 1948, and the last underground soldier Józef Franczak ‘Lalek’ was killed in action by Communist forces in 1963. Soviet domination, and the adoption of the Soviet totalitarian power structure, were formally confirmed by the adoption of the Stalinist constitution in 1952. The liberalisation which started after Stalin’s death partially changed that situation. Yet the less repressive Communist system after 1956 remained criminal, and political opponents were often murdered until the very end of its existence in 1989. Needless to say, the system was never legitimised by the political will of the Polish people freely expressed, since no free elections were held until 1989, and consequently no political rights were restored. This gave rise to the dissident movement, including numerous underground activities such as the production of countless underground press titles. Moreover, Polish society rejected the most restrictive features of the communist system in a series of workers’ or students’ rebellions in 1956, 1968, 1970, and 1976, culminating in the Solidarity movement of 1980–1989. This movement made efforts to restore the order of freedom in the region when it encouraged a struggle for labour rights there in its famous Appeal to the Working People of Eastern Europe in 1981. To secure its position the Communist system turned to the imposition of martial law between 1981 and 1983, and the Poles had to wait until 1989 to regain the freedom they had lost in 1939.

Lithuania After the third and final partition of the Polish-Lithuanian Commonwealth in 1795, the territories of the Grand Duchy of Lithuania became part of the Russian Empire. A slow process of economic, political, and cultural assimilation was started by the new rulers, who were anxious to extinguish the former, long-established self-government and the tradition of political activism by the nobility. The hopes of regaining freedom were incited by the Napoleonic invasion of Russia in 1812, when some of the local elite approached the French Emperor with ideas for an autonomous Grand Duchy of Lithuania. These recurred during the failed uprisings of 1831 and 1863, when the Lithuanian nobility and peasants fought along with the Poles against Russian occupation. These hopes were always dashed by the increasing levels of oppression which followed any struggle for freedom. After the defeat of the 1831 uprising, the scope and mandate of the local noble assemblies, which were a residual form of the district dietines, were severely curtailed. Moreover, among other punitive measures of that time, the Vilnius University, the most important educational centre in the lands of the former Grand Duchy, was closed down by the tsar’s decree. In 1840, the Third Lithuanian statute – which had been adopted in

30  Zbigniew Rau et al.

1588, formed the pinnacle of legal thought in the Grand Duchy of Lithuania, and served as its constitutional basis and code of private law for centuries – was finally withdrawn from practice.102 The wide-ranging repressions following the uprising of 1863 were supplemented by the ban of Lithuanian printing in the Latin alphabet, and the Cyrillic script was imposed by force for the next 40 years. This act of direct and spectacular cultural discrimination inadvertently provoked the illicit smuggling of Lithuanian books from Prussia, a movement which contributed immensely towards the birth of the modern Lithuanian identity. From the last decades of the nineteenth century on, the new intelligentsia of peasant origin (usually teachers, priests, and doctors) along with some members of local nobility (who displayed a more complex identity of allegiance to the old cultural and political traditions, combined with a loyalty towards the newly emerging modern Lithuanian nation) worked towards the establishment of modern Lithuanian statehood. They only succeeded in 1918. Although the period of the democratic parliamentary republic was brief, and as a result of the military coup of 1926 Lithuania joined the other authoritarian regimes which had emerged in the Central Europe of that time, its independent statehood proved to be sufficient to modernise all aspects of social life and to make Lithuanians an aspiring European nation. Tragically, this became clearest during the darkest hours of Soviet oppression. Indeed, the Ribbentrop-Molotov pact and the beginning of the Second World War in 1939 gave way to the occupation of Lithuania (as well as of Latvia and Estonia) by the Soviet Union in June 1940. In 1945, the victory of the allies over Nazi Germany did not bring freedom to the Baltic nations, which underwent Soviet re-occupation. Its first phase in Lithuania was marked by an armed resistance movement against the invaders that lasted until 1953.103 Initially, the well-organised freedom fighters, the so-called ‘forest brothers’, not only fiercely opposed the regime’s mass repressions and deportations of civilians, but also developed a strong vision of a newly re-established Lithuanian statehood. Indeed, in 1949, the leadership of the armed resistance adopted the Declaration of the Council of the Movement of the Struggle for Freedom of Lithuania, announcing that the future independent state would be based on a constitution “corresponding to the aspirations of human freedom and democracy”. After the defeat of the ‘forest brothers’, Lithuania still retained one of the most

102 For an up-to-date and thorough account of governmental and legal change in Lithuania under occupation in the nineteenth century, see ‘Government: Administration and Law’ by Tamara Bairašauskaitė in Tamara Bairašauskaitė, Zita Medišauskienė and Rimantas Miknys, Lietuvos Istorija. Devynioliktas amžius: Visuomenė ir valdžia (Vilnius, 2011) p. 179–243. There is a good review of the different forms and phases of resistance to the regime in ‘Struggles of resistance and liberation’ in Egidijus Aleksandravičius and Antanas Kulakauskas, Carų valdžioje. Lietuva XIX amžiuje (Vilnius, 1996) p. 107–162. 103 D. Kuodyté, R. Tracevskis, The Unknown War. Armed Anti-Soviet Resistance in Lithuania in 1944–1953, (Vilnius, 2006) and on the same movement in Estonia see M. Laar, War in the Woods, Howells House, 1992. See as well R. J. Misiūnas, R. Taagepera, The Baltic States Years of Dependence 1940–1980, London 1983, pp. 81–104.

Why do we celebrate the anniversary of Magna Carta?  31

active and pluralistic dissident movements within the Soviet Union. However its vision took a long time to realise, although Lithuania was the first to formally declare independence from the Soviet Union by an act of 11 March 1990.104

Toward a notion of Central European constitutional identity Let us conclude with some thoughts on a Central European constitutional identity. If we assume, along with Charles Montesquieu105 in the past and Joseph Raz106 in the present, that the credibility of any constitutional ideas is to be verified by reference to the political experience of specific countries, we have every right to argue that there is an overlap of the constitutional identities of Central European states. There is no doubt that the considerable, if not predominant, element of these identities is history.107 In other words, any notion of constitutional identity has to include

104 So far the only extensive scholarly synthesis of material concerning Lithuania under Soviet occupation offered by a group of Lithuanian historians is Arvydas Anušauskas (ed.), Lietuva 1940–1990. Okupuotos Lietuvos istorija (Vilnius, 2005). For the most detailed account of the road to the restoration of independence, see Vladas Sirutavičius, Česlovas Laurinavičius Lietuvos istorija (XII, I dalis). Sąjūdis nuo persitvarkymo iki kovo 11-osios (Vilnius, 2008). 105 “Law in general is human reason insofar as it governs all the peoples of the earth; and the political and civil laws of each nation should be only the particular cases to which human reason is applied. Laws should be so appropriate to the people for whom they are made that it is very unlikely that the laws of one nation can suit another. Laws must relate to the nature and the principle of the government that is established or that one wants to establish, whether those laws form it as do political laws, or maintain it, as do civil laws. They should be related to the physical aspect of the country; to the climate, be it freezing, torrid, or temperate; to the properties of the terrain, its location and extent; to the way of life of the peoples, be they plowmen, hunters, or herdsmen; they should relate to the degree of liberty that the constitution can sustain, to the religion of the inhabitants, their inclinations, their wealth, their number, their commerce, their mores and their manners; finally, the laws are related to one another, to their origin, to the purpose of the legislator, and to the order ofthings on which they are established. They must be considered from all these points of view.” (Charles de Montesquieu, The Spirit of the Laws, trans. A. M. Cohler, B. C. Miller, H. S. Stone, Cambridge: Cambridge University Press 1989, pp. 8–9). 106 “[Constitutional theories] are valid, if at all, against the background of the political and constitutional arrangements of one country or another”. Joseph Raz, ‘On the Authority and Interpretation of Constitutions: Some Preliminaries’, in Larry Alexander, ed., Constitutionalism: Philosophical Foundations, Cambridge: Cambridge University Press 1998, p. 152, hereafter AIC. 107 To imagine “a polity in which the live hand of the present was the animating and sole directive source for its constitutive choices is to imagine a polity without a constitutional identity” CI, p. 324. For a convincing argument that the notion of constitutional identity embraces the conception of constitutional tradition, see Wojciech Sadurski, European Constitutional Identity? Following Sadurski, we believe that there are no good reasons to look for meaningful differences between these two categories. Indeed, if we assume, as for example Krygier does, that the constitutional tradition means that the constitutional past is thought to be significant to the constitutional present, it has power over those who think and act in the present, and finally, it is passed on to us from an immediate predecessor era, then there is no need to differentiate between these categories. Martin Krygier, ‘Law as Tradition’ in Wojciech Sadurski, European Constitutional Identity? University of Sydney Law School Legal Studies Research Paper, No. 06/37 id=939674##, accessed 27 July 2015; Martin Krygier, Law as Tradition, Law and Philosophy,Vol. 5, No. 2 (Aug., 1986), pp. 237–262.

32  Zbigniew Rau et al.

“a presumption in favour of [its] continuity”.108 Accordingly, we have every right to make the following argument: the privileges of the medieval estate, the mixed/ republican government that evolved from them in early modern times, and the condition of freedom the latter embraced and protected have formed both the original and fundamental elements of the constitutional identity of each and all of our nations. Indeed, in each of our countries there is a declaratory as well as normative express confirmation of the so-understood constitutional identity which is to be found in the preamble of its constitution. Thus, in the preamble to the Czech constitution, we read that “the citizens of the Czech Republic in Bohemia, Moravia, and Silesia, at this time of the reconstitution of an independent Czech State” remain “true to all the sound traditions of the ancient statehood of the Lands of the Crown of Bohemia”.109 Similarly, “the Lithuanian nation” adopts and proclaims its constitution mindful of “having created the State of Lithuania many centuries ago”, as well as “having based its legal foundations on the Lithuanian Statutes”.110 Not less so, “the Polish Nation — all citizens of the Republic” adopt their basic law “recalling the best traditions of the First Republic”,111 that is, those of the Polish-Lithuanian Commonwealth which existed before the partitions. The same point is made in the most forceful way by the Hungarians, who state: “We honour the achievements of our historical constitution and we honour the Holy Crown, which embodies the constitutional continuity of Hungary’s statehood and the unity of the nation”.112 By the standards of contemporary European continental constitutionalism, these are rather unique statements, which are evidently absent elsewhere. In fact, it is impossible to expect a similar regulation intentionally and purposefully indicating the continuity between the values, institutions, and practices of a mediaeval/early modern nation state and its contemporary counterpart.113 Yet it would be difficult to assume that this reverence for the mediaeval origin of our constitutionalism is the only element of our constitutional identity. In fact, to quote Jacobson, “as constitutional experience demonstrates, tradition rarely presents itself neatly as a harmonious gift from the past; rather it comes to us encumbered with the discordant strands of a complicated history”.114 Thus, it would be a mistake to believe that it is possible to find any constitutional identity of any country that could be credibly described as being based exclusively upon a harmonious, evolutionary, and stable development of constitutional values,

108  AIC, p. 175. 109 The Constitutional Act of December 16, 1992. 110 The Constitution of the Republic of Lithuania came into force on November 2, 1992. (Adopted by citizens of the Republic of Lithuania in a Referendum on October 25, 1992) 111 The Constitution of the Republic of Poland of April 2, 1997. 112 The Fundamental Law of Hungary (April 25, 2011). Translation of the consolidated version of the Fundamental Law as of October 1, 2013. 113 It is enough to recall that Italy’s constitution does not embrace any preamble, the preambles of the Spanish and German constitutions do not contain any historical references, and the preamble of the French constitution refers to the Declaration of the Rights of Man and the Citizen of 1789. 114  CI, p. 19.

Why do we celebrate the anniversary of Magna Carta?  33

institutions, and practices in the way that is commonly identified with the categories of Edmund Burke.115 This is certainly not even the case of such countries as the United Kingdom and the United States, where the constitutional identity is conceived of against the background of a single (unwritten or written) constitution that has been lasting and binding for centuries. Indeed, even there, the legacy of freedom did not flourish undisturbed, and had to be supported by various, often spectacular efforts of numerous generations.116 So, we may understandably perceive even their constitutional development in the categories of Thomas Jefferson, who famously stated that “the tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is its natural manure”.117 Indeed, in Jefferson, the development of constitutional values, institutions, and practices was rather inharmonious, revolutionary, and unstable. Accordingly, it is advisable to consider any constitutional identity of any country as based upon an interaction of Burkean evolutionary and Jeffersonian revolutionary experiences. In fact, the constitutional identity is shaped by both of them, but it is the proportion between them that determines its character. When the Burkean experience dominates, the constitutional identity has a more static, formal, and predictable character; when the Jeffersonian experience prevails, the constitutional identity is more dynamic, informal, and unpredictable. It is difficult not to assume that the Burkean experience has been considerably stronger in the Anglo-American constitutional identity, and it was clearly weaker

115 “By a constitutional policy, working after the pattern of nature, we receive, we hold, we transmit our government and our privileges in the same manner in which we enjoy and transmit our property and our lives. The institutions of  policy, the goods of fortune, the gifts of providence are handed down to us, and from us, in the same course and order. Our political system is placed in a just correspondence and symmetry with the order of the world and with the mode of existence decreed to a permanent body composed of transitory parts, wherein, by the disposition of a stupendous wisdom, moulding together the great mysterious incorporation of the human race, the whole, at one time, is never old or middle-aged or young, but, in a condition of unchangeable constancy, moves on through the varied tenor of perpetual decay, fall, renovation, and progression. Thus, by preserving the method of nature in the conduct of the state, in what we improve we are never wholly new; in what we retain we are never wholly obsolete.” “Reflections on the Revolution in France”, in The Works of the Right Honourable Edmund Burke, London 1864, vol. II, pp. 307–308. 116 “Anglo-American liberty and constitutionalism rest essentially on a continuity with the Lancastrian constitution proposed by Sir John Fortescue in the fifteenth century as that was received and enlarged by upon by the common law lawyers led by Sir Edward Coke (1552–1634) in the seventeenth-century struggle with the early Stuart kings, James I and Charles I.This ancient constitution (also called Gothic and Saxon) of Edward the Confessor, Magna Carta, the Petition of Right, and Glorious Revolution, then, was substantially eclipsed and modified in Britain during the course of the eighteenth century only to be powerfully reasserted in America as part of the struggle leading up to independence, the American Founding culminating in the Declaration of Independence, the framing of the Constitution, and the Ratification of the Bill of Rights”. Ellis Sandoz, ‘Editor’s Introduction: Fortescue, Coke, and Anglo-American Constitutionalism’, in The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law, Ellis Sandoz (ed.), Indianopolis, Liberty Fund, Inc, 1993, pp. 2–3. 117 Letter from Thomas Jefferson to William S. Smith, from Paris, November 13, 1787, in Thomas Jefferson, Writings: Autobiography, A Summary View of the Rights of British America, Notes on the State of Virginia, Public Papers, Addressees, Messages, and Replies, Miscellany, Letters, ed. Merrill D. Peterson, Library of America (New York, 1984), p. 911.

34  Zbigniew Rau et al.

in the Central European constitutional identity. Indeed, in Hungary, Bohemia, Poland, and Lithuania, the Burkean experience lasted as long as the Central Eastern Europeans were in a position to express freely – that is, free from foreign domination – their various most fundamental desires, expectations, and commitments. This was the case before such national calamities as the battle at Mohács in Hungary, before the battle at the White Mountain in Bohemia, and before the three partitions of the Polish-Lithuanian Commonwealth. After that time, the Jeffersonian experience followed. In fact, when the nations of Central Europe were no longer in a position to express their will in the provisions of any fundamental legal acts, the past experience of their own national constitutional values, institutions, and practices inspired various intellectual, political, or military efforts to regain their independence. These efforts came to fruition at the end of the First World War when the sovereign statehoods of Poland, Czechoslovakia, and Lithuania were established, and Hungary managed to survive the communist revolution of Béla Kun, and emerged as an independent state, albeit deprived of most of its historic provinces. A short period of another Burkean experience followed, which again gave way to a longer time of Jeffersonian dynamics caused by the German occupation and later on by Communist rule, which ceased only at the time of the Autumn of Nations in 1989 and the collapse of the Soviet Union in 1991. What seems crucial in understanding the constitutional identity of our countries is the long periods of Jeffersonian revolutionary efforts and the short intervals of the Burkean evolutionary developments. In turn, this led to deep divisions within our societies, especially between those who strove for the restoration of old national independent institutions and those who were ready to reconcile themselves with the foreign rule.118 This phenomenon took on an especially spectacular dimension under Communist rule, when acceptance of the Sovietstyle order meant a radical eradication of almost all forms of the rule of law, human and civil rights, constitutional cheeks and balances, multiparty systems, independent public opinion and civil society.119 Given all these circumstances, the struggle for freedom in the period of Jeffersonian efforts had an especially intensive and truly heroic character. It was this struggle for national independence and state sovereignty that shaped the constitutional identity of our countries even more strongly than their very constitutional origins in the middle and early modern ages. Indeed, in each of the preambles to our constitutions, there are provisions which express the recognition of and debt to the historical achievements of our forefathers and their Jeffersonian efforts. The pre-war independent states of Czechoslovakia, Hungary, Poland, and Lithuania which re-emerged as a result of these efforts are referred to with reverence and gratitude. Moreover, it is forcefully stated that their present status of sovereign statehoods these countries owe to their “forebears who

118 See Lech Morawski, ‘O tożsamości konstytucyjnej Polaków’, Prawo i Więź, 1/2012, pp. 9–25. 119  Ibid.

Why do we celebrate the anniversary of Magna Carta?  35

fought for [their] survival” and “staunchly defended” their “freedom and independence”, “achieved at great sacrifice” at the time of the “bitter experiences” when “fundamental freedoms and human rights were violated”.120 All in all, the Jeffersonian argument that the struggle for freedom bears fruit in the form of a free constitution is the common feature of both Central Europe’s historic experience and its constitutional thinking. As the Hungarian constitution indicates in a characteristically symptomatic way, “our current liberty was born of our 1956 Revolution”.121 Given the particularly intensive interaction between the Burkean evolutionary developments and the Jeffersonian revolutionary efforts in our Central European constitutional history, our constitutional identity has an especially dynamic character. It is to be found in a constant dialogue between the past and the present, between the values, institutions, and practices of the constitutional order of an independent nation and a sovereign state, and the memory of this order expressed in the long chain of national uprisings, practices of civil disobedience, public protests and demonstrations, civic petitions, industrial and hunger strikes under the foreign or Communist rule, that is, between freedom under the law and slavery in the condition of lawlessness.122 It is its dynamic character as well as its dialogical dimension that make our constitutional identity a profoundly dialectical category. As such, it has been in a position to sustain and preserve the value of freedom in radically changing political and legal constellations. In other words, it has managed to demonstrate its very essence, indeed, the essence of any true identity, which is “to maintain inner sameness and continuity”.123 The key to the achievement of this dialectics is to be found in the famous observation of Jefferson who stated that “the liberties of the nation” can “be thought secure” exclusively in “their only firm basis, the convictions of the minds of the people”.124 Indeed, the peoples of our countries cherished their freedom both when they could enjoy constitutional values in their everyday life and when they were deprived of them and had to struggle for their reestablishment. For them, the

120 See the Constitutional Act of the Czech Republic of December 16, 1992; the Fundamental Law of Hungary (April 25, 2011). Translation of the consolidated version of the Fundamental Law as of October 1, 2013; the Constitution of the Republic of Lithuania came into force on November 2, 1992. (Adopted by citizens of the Republic of Lithuania in a Referendum of October 25, 1992); The Constitution of the Republic of Poland of April 2, 1997. 121 The Fundamental Law of Hungary (April 25, 2011) Translation of the consolidated version of the Fundamental Law as of October 1, 2013. 122 “[A constitution] acquires an identity through experience, that this identity exists neither as a discrete object of invention nor as a heavily encrusted essence embedded in a society’s culture, requiring only to be discovered. Rather, identity emerges dialogically and represents a mix of political aspirations and commitments that are expressive of nation’s past, as well as determination of those within the society who seeks in some ways to transcendent that past. It is changeable but resistant to its own destruction, and it may manifest itself differently in different settings.” CI, p. 7. 123  Erick H. Erickson, Dimension of a New Identity, New York: W. W. Norton, 1974, p. 204. 124 Thomas Jefferson, ‘Notes on Virginia’ in Thomas Jefferson, The Writings of Thomas Jefferson, Baugh and Lipscomb (eds),The Thomas Jefferson Memorial Associations,Washington, 1903–1905, vol. II, p. 203.

36  Zbigniew Rau et al.

heritage of freedom proved equally strong, appealing, and inspiring in both those profoundly opposite constellations. *** If this reconstruction of our Central European constitutional identity is correct, we have every right, and indeed every need, to join the celebrations of the Magna Carta’s 800th Anniversary and consider it our own commemoration of the march of freedom in our countries, in Europe, and in the world. It is true that the Magna Carta, the Golden Bull, and the Lithuanian Statutes originally institutionalised nothing more than a feudal interest under the feudal law in England, Hungary, and Lithuania. Yet it was these ideas, values, guidelines, and principles that have for centuries constituted the most natural and obvious points of reference for any political or legal thinking and acting by all freedom-thinkers and freedom-fighters in their national communities. Similarly it will be very difficult, if not impossible, to find today a libertarian, a classical liberal, a classical republican, or a true democrat who would reject the spirit of the “inauguration diplomas” in Bohemia or the neminem captivabimus, the mixed/republican government or the nihil novi in Poland. The only thing they would object to in the letter of these acts is that they did not apply to all people but only to some of them. Thus, as free men and women under the law, we cannot help but feel today the indirect beneficiaries of all these ancient privileges, rights, and freedoms.

2 THE HUNGARIAN EXPERIENCE OF FREEDOM The tradition of the Golden Bull Attila K. Molnar and Levente Völgyesi 1

Liberty, limits, political community and the Golden Bull of Hungary The Golden Bull In the nineteenth century the political modernization of Hungary was led by the nobility, claiming the extension of political community, that is, the extension of the nobility’s liberties. The civil liberty of modern political society was the expansion of the liberty of nobility; it did not originate from the cities or city-dwellers who were rather jealous of their privileges. The Kingdom of Hungary contained several language groups, but the nobility had a Hungarian (Magyar) identity, while the city dwellers were mainly German-speaking people. Those who claimed their involvement in the political body claimed the rights, liberties and prestige of this nobility. That is why ethnic groups assimilated to the Hungarian-speaking nobility in the nineteenth century instead of to the German-speaking city dwellers. Since the fourteenth century, every nobleman in the Kingdom of Hungary had had one and the same liberty (unus eademque libertas), as was declared by the Golden Bull of Louis the Great (king of Hungary and Poland) in 1351. In Hungary no feudal link existed, so every nobleman was equal in their political rights, apart from their native language, denomination or place of birth, while the German-speaking cities insisted on their local privileges instead of any universalist reference. At least in this country, modern political society did not emerge from the city dwellers’ political claims and institutions.

  1  Part I is written by Attila K. Molnar, part II by Levente Völgyesi.

38  Attila K. Molnar and Levente Völgyesi 

In the rise of the Hungarian political community, the city-dwellers were on the side of the court and suspicious of the nobility. The fundamental personal liberties of nobility were fixed in the Werbőczy’s Tripartitum, under the reign of the Jagellonian King Ladislav at the beginning of the sixteenth century. They are as follows: 1. No nobleman could be imprisoned without a fair trial; 2. Noblemen are subject only to the royal court’s authority their personal liberties and properties are protected from barons, and they are secure from arbitrary imprisonment; 3. Noblemen are immune from taxes, 4. and the ius resistendi. In the emergence of a Hungarian political community containing politically free and equal people, the Golden Bull was seen as one of the most important documents. After the liquidation of the ius resistendi, the Golden Bull was excavated from the past by Hungarian historians of the eighteenth century, who connected it to the Magna Carta and interpreted it as the ancient basis of Hungarian political liberty, which was to be respected by the Habsburg kings. Obviously there were many laws issued by earlier kings such as St Stephen and St Ladislav, but the Golden Bull is important because it was the first written document on the liberties of common nobility and the limits of royal and baronial power. The first laws in the eleventh or twelfth century aimed to punish crimes, and transform human relations from a clan system into the model known in Western Europe. The creation of a new order and discipline was seen as necessary to increase military power, to defend the kingdom against neighbours like the German-Roman Empire from the west, the Byzantine Empire from the south and the Pecheneg and Cuman tribes from the east. The Golden Bull is also unique because it was issued as a result of popular movements by the common nobility to defend and fix the alleged old customs and liberties, responding to the activities of the king and barons that were seen as harmful. The twelfth and thirteenth centuries were rather fortunate for the Kingdom of Hungary because of its relative strength: there were no real competitors nearby, so the feudal anarchy was not punished by a strong neighbour. András II (1205–1235) was crowned after the usual dynastic conflicts; he followed his brother, and later he had a similar conflict with his son (later Béla IV [1235–70]), and he initiated a series of unresolved and rather unsuccessful military expeditions: in his first 15 years he led thirteen expeditions, mainly to Galicia and Lodomeria (Poland and Ukraine today). Of course, wars needed money and soldiers, so the king called the common nobility into these wars, and he provided land to the new barons who helped him abroad and inside the kingdom, He donated whole counties to the new barons, who thereafter tried to spread their juridical authority over the local servientes (common nobility), and tried to integrate them into a feudal system (an unknown form of dependency in Hungary). The limitless bestowal of royal lands helped to raise a new governing

The Hungarian experience of freedom  39

elite, which arrived with Queen Gertrude from the Roman-German Empire. Beside these German barons, András invited the Teutonic Knights into Hungary to fight against the Cumans and gave the south-western area of Transylvania to them (1211). (Eventually the Knights conquered the Cuman territory – today Rumania – and turned against the king, so he expelled the whole Order from the kingdom.) What is more, the king’s first wife, Gertrude, and her German relatives and courtiers, besides enriching themselves, ruled the country against the local barons, having earlier helped the king’s brother Imre in the dynastical conflict. When the king went to Galicia and Lodomeria again to defend his interests there, some barons who had earlier supported Imre – and were therefore now in disfavour – conspired against Queen Gertrude and attacked her brother, the Archbishop of Colocza. Gertrude herself was killed and her relatives left the country with their treasures (1212), and her brother, the Archbishop of Colocza, asked Pope Honorius to lay Hungary under interdict.2 After this, András married the daughter of Peter of Courtenay (the Latin emperor of Byzantium), and vowed to join the crusaders, as his father had promised much earlier. When he returned from the Holy Land in 1218, he found the whole kingdom in disorder, and the treasury was empty. The king tried to fill his treasury by any means possible, so he let out monopolies to Jews and Muslims and confered land to barons. This helped in the short term, but this policy increased the discontent in the country in the long run. The renewed bestowal of land to barons to buy their loyalties only reinforced the discontent. Because of ‘the disorders of the kingdom’ the king promised to suspend his policy, but after a while he resumed it. It was not seen by the king as a simple and usual dynastic change (András against Imre, or András against Béla), but it was called a new order (nove institutiones), so its enemies emphasised its newness against St. Stephen’s old venerated laws and order, and they did not want a simple personal change in leadership – even if the servientes were led by the king’s son, Béla – but the restitution of the “old order”, which was practically an emerging new one. In 1217, when the king was first forced to change the ‘new order’ policy, people were already reclaiming the old one (ad priorem statum), and the king’s unpopular policy was named the ‘reform policy’ (super reformacione regni) in 1222 by the malcontents. So, the new order and the new political elite offended many who could not be pacified by the spoils of the successful military expeditions. The discontents, led by the king’s son, even asked Pope Honorius to help them and to force András to restore the lands of the Crown. The disorder finally resulted in a peace agreement called the Golden Bull (1222), probably answering a petition by the servientes. The Golden Bull contained 31 clauses, and seven copies of it were taken to the pope, the archbishops of Esztergom and Colocza, the Knights of St. John, the Knights Templars of Hungary and Slavonia, the king and the Palatine.

  2 This story became popular in the mid-nineteenth century as a metaphor of the fight for national freedom against the Germans.

40  Attila K. Molnar and Levente Völgyesi 

We have no originals of this text; the earliest known transcription is from 1318, and guarded in Esztergom, the old capital of the Catholic Church in Hungary. It was enacted that: •

• •

• •

The king or the Lord Mayor must sit in Alba Regia (today Székesfehérvár) every year on the Day of St. Stephen (the founder king of Hungary; 20 August), and administer justice and hear all petitioners, and every nobleman should be able to attend this meeting freely. The nobles and their properties shall not be subject to taxes and any burdens. No nobleman shall be either arrested or punished for a crime, unless he has received a fair trial. In cases where a nobleman was threatened by decapitation or confiscation of his property, he could be judged only with the consent of the king. The courts of the county (comes) could not judge a nobleman. If the king wants to wage war abroad, the common nobility is not obliged to follow him at their own expense. But in case of an emergency, when the enemy is attacking the kingdom, every nobleman is obliged to go to war with the king. (Later on, this was translated into practical politics, as the nobility serving the kingdom by their blood, and not by their money. Until Napoleon’s victory at Győr in 1809, this was a key liberty in Hungary.) Foreigners may be awarded distinguished positions only by the consent of the King’s Court. Lands should not be donated to foreigners, and estates already donated may be bought by local people. The king’s people may not tyrannize the habitants of the kingdom, and if the comes (the military and administrative head of the county) behaves in such a way, he is to be punished and removed from office. Properties gained from the Crown by real service should not be taken away from the owners. The church tax (the tithe) may be paid in products of the land, not only in money. If the bishops contradicted this, the king will not provide legal aid for the collection of the tithe. New money must to be valid from Easter to Easter, keeping its value from Béla III’s reign. (This measure was taken against the inflationary methods usaed by the treasury in the twelfth and thirteenth centuries). Tax collection, the issue of coinage and salt mines should not be let out to Jews or Muslims.

In similar cases (such as England and Aragon), the barons referred to the defence of old and practiced liberties as privileges, and the Golden Bull of Hungary is also a declaration of “ancient laws and liberties”, but there is no sign of these laws in Hungarian written or customary law. The Golden Bull was evidently an invention, even if it referred to ancient liberties. Therefore, there has been a long-running debate about the origin of these inventions. The form of the golden bull came from the Byzantine Kingdom (chrysobullon), which was already well-known in Western Christianity in the twelfth century. The

The Hungarian experience of freedom  41

first Hungarian golden bull was edited by Géza II (1156) and Béla III, who had been educated in Byzantium and issued several golden bulls, and Imre, András’s brother also issued one in 1202.3 Probably the form came directly from Byzantium, where the golden bulls were signed by the emperor, written in red and had a golden seal attached; they usually gave privileges to the Church (land, tax exemption or the king’s authority instead of the local ones, etc.). So the Golden Bull was not a codex, but rather it provided liberties (of tax and law), as well as a certain policy defending servientes from barons and the local people against foreigners. Obviously, research has focused on the origin of idea of ius resistendi, which was a real innovation in Hungary. There is no reference to resistance even in the unwritten customs of Hungarians. Actually, it would be more accurate to speak about the clause of resistance than the ius resistendi, at least in the case of the Golden Bull. The ius resistendi of the Magna Carta and the clause of resistance of the Golden Bull have regularly been linked, but in spite of their political similarities there is no serious textual connection between them. Generally, the historians do not see it as a local invention, and instead they debate its origins in England or elsewhere. The old debate is whether it was influenced by the English Magna Carta or the Bull of Aragon, or the law of the kingdom of Jerusalem.4 Since the eighteenth century there has been research on the Golden Bull/Magna Carta connection, but there is no evidence in the text for any direct relationship between them.5 Henrik Marczali founded the Aragon Connection School, while Sándor Fest was a representative of the English Connection School.6 King Imre’s wife Constance arrived from Aragon, and some members of her following who had reached important positions in the Court lost out in the political changes which came about when András II came to power after Imre’s death. András’s reign was full of conflict, most openly when his German wife was assassinated by some barons belonged to Imre’s court. But Constance of Aragon left Hungary in 1205, and her courtiers followed her. So we do not know of any Aragon actors at the time of the Golden Bull’s promulgation. The other and more serious problem is that the resistance was established much later in Aragon (1287). But the logic of argument in Aragon was similar: there is a mutual covenant, and if the king violates it, it will not bind the barons any more; they are freed from their oath and they do not have to remain loyal and obedient. Today, those who argue for the English connection also emphasize András’s crusade. Two of András’s fellow warriors, Támás and Ugron, were among those who signed the Golden Bull. There is broad scholarly agreement that the legal inventions of the Golden Bull might have originated from the situation arising

 3 L. Komáromi, A bizánci hatás, Budapest, Pázmány Press, 2013.  4 Divéky Adorján, Az aranybulla és a jeruzsálemi királyság,   5 A. Bárány, J. Laszlovsky, Zs. Papp, Angol-magyar kapcsolatok a középkorban, Atrraktor, Máriabesenyő, 2008.  6 E. Hantos, The Magna Carta of the English and the Hungarian Constitution, London, Kegan Paul, 1904.

42  Attila K. Molnar and Levente Völgyesi 

during King András’s crusade in 1217 (the Fifth Crusade). András went there in 1217, but after his return the next year, some members of the army stayed for a while. András’s crusade was a budget one. Because of the shortage of cash, his crew was taken to the Holy Land by the Venetian fleet, asking for Zara (Zadar) and merchants’ rights in Hungary in return. The evaluation of this crusade has changed; in the past it was seen as a simple relic-collector tour, but today it is clear that András’s troops was involved in many battles and joined the crusaders at the siege of Damietta, where there were English barons as well.7 Divéky argued that the legislation of the Kingdom of Jerusalem, where the king also needed the barons’ and nobility’s military help, is important to understand the Golden Bull. Here in Jerusalem, the king had to integrate the city dwellers into the legislation and government of the kingdom as well (the Assizes of Jerusalem). Although the “constitution” of the Kingdom of Jerusalem is not known, tradition reads the Assizes of Jerusalem as its inheritor. The idea of resistance was formed here: if the king violated the liberties and privileges, the subjects were not obliged to remain loyal and obedient, so the refusal of unlawful command was legalized. As Divéky pointed out, there are several similar elements in the Assizes and in the Golden Bull, and not only resistance as a sanction of the king’s godless activity, which is similar in the two texts. This supposed connection of the Golden Bull with the Assizes may mean that it was not the discontents, but surprisingly András’s own people who drew up the Golden Bull, and sanctioned and limited their king by the resistance. Or perhaps they offered the chance for resistance in the future in exchange for peace today. The preamble of the Golden Bull refers to the petitioners’ complaints and the situation which made it necessary: As the liberties of the nobility, and of certain other natives of these realms, founded by King Stephen the Saint, have suffered great detriment and curtailment by the violence of sundry kings impelled by their own evil propensities, by the cravings of their insatiable cupidity and by the advice of certain malicious persons, and as the nobiles of the country had preferred frequent petitions for the confirmation of the constitution of these realms; so that, in utter contempt of the royal authority, violent discussions and accusations had arisen, . . . the King declares he is now willing to confirm and maintain, for all times to come, the nobility and freemen of the country in all their rights, privileges, and immunities, as provided by the statutes of St. Stephen.8 As free people, the servientes always feared for their personal and material independence; they saw the danger of becoming dependent on barons, the privileged

  7 The other supposed meeting point of English and Hungarians is Rome, to where the Magna Carta was sent, just like the Golden Bull, and the meetings of Lateran Council in 1215. Laszlovszky – Majorossy – Zsengellér eds. Magyarország és a keresztes háborúk Attraktor. 2006.   8 Translation is taken from Rossiter Johnson ed., The Great Events, vol.VI. 1905.

The Hungarian experience of freedom  43

foreign courtiers, counsellors and influential money-lenders, and so they wanted to be free under the king. So it was important to enhance the king’s authority against the barons to defend the common nobility from them, and also to limit somehow the enhanced authority of the king and his courtiers. In the Golden Bull, the king was limited in his wars abroad, in raising money, in bestowing lands to courtiers, in confiscating free men’s property or sentencing them without fair trial in the king’s court. Later on, the limitation of royal authority became an evident claim to defend liberties, but at that time, being under the king’s authority was a liberty in and of itself. After the infallible holy kings of the eleventh century and the dynastical quarrels and changes in the twelfth century, by using the rhetoric of ‘old fine liberties and customs’, a genuinely new concept of political authority emerged: limited government, sanctioned by the chance for resistance. Later on, the coronation ceremony and oath to the laws of Hungary was a necessary condition of royal authority, and was interpreted as a sign of a covenant between the king and the country. The candidate for the Hungarian throne signed a charter, and during his coronation reinforced it as an oath. The charter referred to the ancient laws and customs, and the duty to keep them. The political community could lawfully resist if the king broke his oath. The Catholic Church was not really happy about the Golden Bull of Hungary, although it was drawn up under the supervision of prelates. Nine years later the Church renewed the Bull, but serious changes arose, mainly in the interpretation of the limitation of the king’s activity, and the sanction changed. The second Golden Bull (1231) satisfied the interests of the Church, but it substituted the resistance clause for an anathema or excommunication clause. Here the Church obtained the right to control, judge and punish the king. If the king violated any privileges of the Church, the Archbishop of Esztergom would have had the right to excommunicate him – that is, his subject would have freed from their oath to the king without the sin of rebellion; in other words, the well-known solution of Pope Gregory VII would have forelet the subjects’ duties towards the king. It was not resistance by the subjects, but the punishment of an unjust ruler by the just (the Church). The Archbishop of Esztergom acquired the power to judge, limit or even govern the king’s activity.

Ius resistendi The Ius resistendi is often interpreted as a root of limited government, drawing on the consent of the people. But the problem of how to remove tyrants and still be obedient was so difficult that one can even find it at the end of Locke’s famous Second Treatise on Government, where he named finally God as the judge of bad rulers. In practical terms, there was no solution to this dilemma. The idea of the limitation of worldly magistrates emerged during the Investiture Wars. In contrast to the general view during the Middle Ages, kings’ authority was not necessarily seen as holy, and the Catholic Church was their first competitor. Papal power reached its zenith during the reign of Innocent III, who treated Hungary, England and Aragon as his feudal domain. It is worth noting that some

44  Attila K. Molnar and Levente Völgyesi 

form of the ius resistendi, that is, the limitation of king’s authority by the consensus of the political society, emerged in those countries in which there was a strong papal influence. Traditionally, the kings of Hungary supported the popes against the German-Roman emperors, and mainly under the reign of Imre – András’s elder brother – Hungary came under rather strong papal influence from Innocent. The problem of this age was how to interpret the bad kings’ activity. Obviously, the topos of tyranny was at hand, but the ancient wisdom was also well known that no-one can be his own judge (nemo iudex in causa sua). This ancient idea was reinforced by St. Augustine’s theology, spreading the idea of original sin. According to the De civitate Dei sinful people need a worldly magistrate to repress their sinful lust and create some order in the world. So, in this tradition the question of tyranny could not be raised. The problem was very difficult because the original sin was Adam’s and Eve’s rebellion against God’s order, so obedience was a duty for any good Christian. What is more, Jesus taught “That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also” (Matthew 5.39). In the context of the non resistere malo, the problem of the Investiture Wars was the political question: by whom and how can a tyrant be detected, and what could be done? Rebellion was out of question, just as revolution or disobedience are in reality only modern fashions. Both an unjust ruler and rebellion were equally unacceptable for different reasons, but both were seen as unlawful. The solution was the Ciceronian reference to the old good rules and customs, and the tyrant who broke them, while the common people only resist him. Resistance meant that the not-absolutely morally corrupt people defends God’s law, the old laws in the not-absolutely morally corrupt world, against the tyrannical king’s law-breaking (that is violent) activity. Many elements of the topos of tyranny were included in the interpretation of the reign of King András without naming him a tyrant: these were listed as the limitless bestowal of lands, breaking old customs, rule by foreigners (Germans), new and arbitrary taxes (from 1217) collected by foreigners (Jews and Muslims). Logically, it may follow that: • •

resistance is not rebellious, but the tyrant is rebellious against God’s and the kingdom’s laws, resistance against the innovating ruler is intended to defend or restore the old customs and liberties.

Beside the liberties and their sanction, the resistance was an innovation. The famous Article 31 does not use the word “right”, which is a rather modern interpretation of this article: “If he or any of his successors shall ever be found to transgress the provisions of this bill, the bishops, the high dignitaries, and the whole of the nobility, for all time to come, shall, by virtue of this bill, be entitled and empowered, jointly and severally, to oppose and contradict the king and his successors after him, as the case may be, without for so doing incurring the penalties

The Hungarian experience of freedom  45

of high treason”. That is, “liberam habeant  . . .  resistendi et contradicendi facultatem” refers to the political community and all its members. Definitely, there was no single person, a function or institution named to either promote resistance or judge others who resisted its practice. The original Golden Bull was sent to the pope, but he never confirmed it. Instead, the Second Golden Bull of Hungary (1231), in which the church leaders took on the role of the nobility to sanction the king’s unruly laws or actions, was confirmed by the pope. In this bull there is no ius resistendi in any meaning, but the clergy may judge the king. This text, and not the first one (1222), was included into the papal liber censuum.9 In spite of this, the first Golden Bull was established, and was referred to as soon as 1318, and reinforced by Louis the Great (in 1351), by his daughter, Mary, (in 1384) and his son-in-law, Sigismund of Luxemburg (1397), Vladislav I (1440) and Matthias Corvinus (1464) as well. But we know of no attempts to use this resistance clause during the thirteenth to fifteenth centuries. Actually, the ius resistendi was not practiced in Hungary’s most dynamic period in the fourteenth and fifteenth centuries. After the death of the last strong king, Mathias Corvinus, the Hungarian law scholar Werbőczy collected the laws of Hungary and published them in a code in 1514. But the code, called the Tripartitum, never went through the formal legislative process, although it became a law of custom. The Tripartitum repeated the liberties of the nobility with the ius resistendi, but did not refer to the Golden Bull. The problem of the tyrannical king became acute after Werbőczy’s period during the religious wars of the Reformation: in Hungary the first reference to the ius resistendi is from István Bocskai, who successfully fought against the Catholic Habsburg king to defend his property, the old liberties of Hungary and the Protestant cause in 1604. However, he referred to the Tripartitum instead of the Golden Bull. The next reference to this right is from Thököly, who also fought the Habsburgs to defend his properties and the Protestant cause in 1684, but he failed. After the expulsion of the Ottoman Empire from the kingdom, the Parliament gave up the ius resistendi in clause 1 of Act IV of 1687, and it was removed from the Coronation Oath as well. In return, the Habsburg king reinforced the other articles of the Golden Bull. Transylvania was an independent principality after the collapse of the Kingdom of Hungary in 1526, continuing the institutional and constitutional heritage of the kingdom. After the death of the last prince, Transylvania was taken by the Habsburgs and the ius resistendi was cancelled here, too, by the Diploma Leopoldinum (1691). The problem of an unjust, tyrannical king who was openly against the law of the country, and was not even crowned and so never took the Coronation Oath to the country’s law, emerged during the reign of Joseph II in the eighteenth century.

 9 G. Érszegi, Az Aranybulla, Helikon, Budapest.

46  Attila K. Molnar and Levente Völgyesi 

He launched rationalistic and enlightened reforms to create a new order which openly stood against everything seen as old. During his 10 year-long reign he issued around 10,000 orders. When the French people started a revolution against their king in 1789, the Hungarian nobility started a successful counter-revolution – probably the first of its kind – called ‘noble-national resistance’ against Joseph II’s enlightened innovations to regain the old laws and liberties. Finally, Joseph was forced to withdraw all his orders but two. The other important result of this movement against the enlightened king was Act X of 1791, stating that the Kingdom of Hungary is an independent state and must be ruled by its own laws. This insistence on the kingdom’s own laws was so important that it was reinforced in 1827 by Franz I, and it was one of the key ideas lying behind the political modernization of Hungary in 1848 and 1867. As one can see, the ius resistendi was practiced on several occasions in Hungarian history; it arose during military conflict between the king and the nobility twice in the seventeenth century when it merged with the Protestant idea of Christian freedom. Still, the habit of resistance has been continuous. The Golden Bull was interpreted as a kind of constitutional paper during the formation of modern political community of Hungary in the eighteenth to twentieth centuries. In these cases, the reference to the Golden Bull, and ius resistendi within it, was a claim for the old customs, liberties and institutions against innovating, that is, tyrannical foreign government (in 1789 against Joseph’s innovations, and against Franz Joseph’s innovations after 1849). Ius resistendi was mainly used as an argument to defend liberty instead of creating it, because innovation is tyrannical, while liberty is traditional. The idea of limited government (limitation of royal power) emerges in those countries which were under papal power during Innocent III’s reign, and where the king’s power was rather weak, where the king needed the military help of the barons and nobility. So in these countries the limitation of the king’s power (from abroad as well as from home) was first practiced, then turned into a document. Later on, when these kingdoms became stronger and they had much stronger rulers, the idea of resistance – just when it should logically have been used – was forgotten. Resistance was practised not in the periods of glorious and powerful kings, but in times of weak central power. In the fourteenth and fifteenth centuries, when Hungary reached its greatest form, there is no evidence of the rhetoric of resistance. From the point of view of the subsequent centuries, the ius resistendi was less important in practical politics than the annual meeting of the king and nobility on St. Stephen’s Day. By ordering the relationship between the king and the political community, this charter marked an important step in the emergence of the political community of Hungary. The text, in the context of resistance, is one of the earliest in Hungary to speak about a political community (universitatis): “tam episcopi, quam alii iobagiones ac nobiles regni nostri universi et singuli”. Similarly, in the case of foreign invasion, the whole political community is obliged to go

The Hungarian experience of freedom  47

to war (universi et singuli ad defensionem patriae contra inimicos). It is unnecessary to emphasize the importance of the creation of the political community by the Golden Bull.

The development of the Hungarian ethos of liberty After the Golden Bull Ulászló II, the Hungarian (1490–1516) and Bohemian king – who was the son of Casimir IV of the Jagellonian dynasty, Lithuanian in origin, but also ruling Poland – entrusted István Werbőczy with the creation of a law book that comprised the whole of Hungarian legal material, which by the fifteenth century was so vast that its organization became necessary. King Matthias Corvinus I (1458–1490) made serious efforts towards the centralisation of the country, thus the assemblage of a uniform collection of legal materials was an obvious step for Ulászló II. The Diet of 1514 arranged for the finished work to be supervised by ten legal experts. Since the committee approved the work, the Diet also supported it and the king approved it. However, it was never promulgated. As the king died before doing so, Werbőczy printed the work in 1517 in Vienna at his own cost, in the printing office of Johann Singriener. In spite of the lack of a promulgation, in the absence of other law collections, the work – called the Tripartitum – was widely utilized in the courts, and later emerged as a law of custom. Although it never became a law, the work was still in use in the twentieth century as a fundamental work concerning constitutional and private law issues.10 The introduction of the Tripartitum basically lists the sources of the law. The first book discusses the constitutional and private law and penal rights of the nobility. The second book describes the process of lawsuits, while the third book contains the order of the law for other groups of the population. Among the nobility’s rights of liberty, the aforementioned primae nonus, or Act IX of the first book, stands out. Here appear the four main rights and privileges of the nobility: 1. A noble person could not be arrested in the absence of a prior conjuration or citation or proscription. Exceptions could be allowed if someone was caught in the act, or in the cases of serious crimes. 2. A noble person is under no-one’s power, except that of the legally crowned king who may profess his penal power within the legal frameworks mentioned in the first point. 3. The nobles do not pay taxes – they solely have the obligation to wage warfare.

10 Bódiné Beliznai, Kinga et al. (2007): Jog, jogrendszerek, jogágak a magyar jogfejlődésben. In: Mezey Barna (ed.): Magyar jogtörténet (Budapest: Osiris) 15–45, 32.

48  Attila K. Molnar and Levente Völgyesi 

4. The possibility of the profession of the right of resistance incorporated in the Golden Bull (1222): if a ruler withdrew a nobleman from the profession of any rights of liberty formulated in the Golden Bull, the corresponding nobleman would have the right to resist the king without committing the crime of disloyalty. At the end of this point11, Werbőczy interprets the concept of a nobleman in an extended manner: here in general he means all the prelates, barons and other magnates, as well as other distinguished persons of the country, who (according to the second title of the Tripartitum’s part I) are always defended by the privilege of one and the same liberty. In the Tripartitum, the nobility’s personal rights of liberty inevitably became written with reference to the Golden Bull, and these rights were guarded and defended by the nobility until the civic change of 1848. It is beyond doubt that the rulers would have broken with the tradition of the Tripartitum, but a real chance for this never occurred. The Tripartitum ascertained the right to free royal election. In Hungary, therefore, only intermittent or partial restrictions (relevant only to certain royal branches) could have happened.12 Similarly, the tradition of public law formed the concept of fundamental acts. These – except for the Golden Bull – are mainly treaties with the rulers of the House of Habsburg (1526–1740) or later, with the House of Habsburg-Lotharingen (1740–1918) issued in the modern era.13 The basis of these treaties was constituted by the so-called charters14 that the candidates for the Hungarian throne accepted in written form in the parliament as a return for their election, and later (during their coronation) reinforced as an oath. The charter consisted of all the ancient legal materials whose preservation the new king obliged himself to. The nation could exercise the right of resistance if these were not observed. During the sixteenth century, one can hardly find any examples of any reference to the right of resistance. The first worthwhile mention is from the seventeenth century – however, in this case the reference is not directly drawn on the 31st article of the Golden Bull, but rather on István Werbőczy. In Hungary, the death of King Lajos II (1516–1526) brought an end to this branch of the House of Jagiello. The Hungarian orders chose two kings at the same time. The first King Ferdinand I Habsburg (1526–1564), and the second was King János I Szapolyai (1526–1541). By this event, Hungary was divided into two parts. In 1541 (at the death of King János I), the Turkish army occupied the Castle of Buda, which split the country

11  Tripartitum Part I. Title 9. Article 7. (Source: Márkus (1897) 68–69. 12  Act V of 1547; Act II of 1687; Act II of 1723. 13 Mezey, Barna [ed.] (2000): A magyar jogtörténet forrásai. Szemelvénygyűjtemény (Budapest: Osiris), 23. 14 Mezey, Barna (2003a): Feudális állammodellek Magyarországon. In: Mezey Barna (ed.): Magyar alkotmánytörténet 5 (Budapest: Osiris) 41–88, 62.

The Hungarian experience of freedom  49

into three parts. Buda and Pest only returned to Hungarian hands in 1686. The successors of the two kings, King Maximilian I Habsburg (1564–1576) and King Jan Zygmunt, sheathed their swords in Speyer in 1570, thus creating the Principality of Transylvania in the eastern area of Hungary. This Hungarian territory was led by suzerain István Bocskai (1605–1606), who started a war against the Habsburgs. István Bocskai was the first to organise his uprising with reference to the right of resistance, as the conscience of the noble privileges was strengthened among the nobility as a consequence of the Tripartitum, which emphasized their rights.15 It is interesting to note that Werbőczy reserves the right of resistance only for that particular case when the king violates the regulations concerning the noble rights of the Golden Bull. Bocskai interprets this question in a wider sense: one can live with the right of resistance in every case, when the king acts against the rights and customs of the country.16 In the following decades one finds no more direct references to the right of resistance, but in 1684, Imre Thököly – who founded an independent principality in the Northern Hungarian territories – declared that the right of resistance is the spirit of Hungarian freedom, and absolves the practitioner of this right completely and perfectly of the accusation of revolt.17 The Parliament surrendered the practice of the right of resistance amidst positive legal frames by Act IV of 1687.18 The wording, however, is very cautious, as Act XXXI of 1222 is not overruled here, but the Parliament rather interprets the act (that is, the Golden Bull’s clause of resistance). Furthermore, although the wording of the act is circuitous and burdened with long sentences, only a couple of words are of particular importance: the right of resistance is interpreted in a way that the possibility of an armed rebellion is excluded.19 Thus, the matter of the right of resistance was officially dropped from the agenda of the Parliament – law experts and politicians of the eighteenth century argued instead by the application of modern state theories and the scientific explanation of the franchises.20 However, the question re-emerged at the end of the eighteenth century, but finally Act X of 1790 stated that Hungary – although the ruler of the Kingdom of Hungary and the Habsburg Empire is one and the same in his person21 – is an independent country with its own state essence and constitution. This act was reinforced by Act III of 1827, sanctioned by King Franz I Habsburg (1792–1835).

15  Eckhart, Ferenc (1933): Bocskai és híveinek közjogi felfogása. In: Károlyi Árpád emlékkönyv (Budapest: Sárkány), 137. 16 Révész, Imre (1934): Szempontok a magyar kálvinizmus eredetéhez. In: Századok 67, 271–272. 17 Hóman, Bálint – Szekfű, Gyula (1935): Magyar történet IV. (Budapest: Egyetemi Nyomda), 203. 18  Eckhart, Ferenc (1946): Magyar alkotmány- és jogtörténet (Budapest: Politzer), 31. 19 Márkus, Dezső [ed.] (1900): Magyar Törvénytár 1657–1740. évi törvénycikkek (Budapest: Franklin), 336–337. 20  Degré, Alajos (2004): Válogatott jogtörténeti tanulmányok. Az ellenállási jog története Magyarországon (Budapest: Osiris), 69. 21  Act II of 1723, Article 7.

50  Attila K. Molnar and Levente Völgyesi 

Still, at the dawn of the civic change, Act II of 1849 (the Declaration of Independence of the Hungarian Nation, born during the Hungarian War of Independence in 1848–1849), named Act X of 1790 as the operative legal basis of the Hungarian independence.22 ‘Passive resistance’ was the basis of the Hungarian political movement immediately prior to the modern civic era against the Austrians suppressing the Hungarian fight for freedom. This had continued up until the Austrian–Hungarian compromise (Ausgleich) of 1867. The landowning nobility and the intellectuals expressed their point of view in this neo-absolutist era of autocracy by forcing themselves into an ‘inner emigration’, sabotaging the ordinances of the government and authorities, and avoiding undertaking any political or public life duties. They forbore the open conflict with the established state organisation and the ruler, although they did find various ways to encompass or override the state machinery.23 The Hungarian version of passive resistance acquired international reputation: according to the Indian prime minister Nehru, Gandhi referred to it while establishing his non-violent policy.24 As well as Parliament, another excellent institution formed the basis for the exercise of the right of resistance: the counties. The counties as local executive units had already been founded by King Stephen (1000–1038), but from the beginning of the servientes movement in the thirteenth to the sixteenth century, the nobility acquired the power over the counties, and so the implementation of the central royal provisions remained – in the absence of any other executive apparatus – the task of the counties led by the nobility. However, the counties implemented only those central provisions that they found constitutional. This public boycott was exercised by all the counties, and as it had nothing to do with the armed rebellion that had been quelled by the Parliament in response to the proposal of King Leopold I Habsburg (1657–1705) by Act IV of 1687, the counties exercised it in an undiminished way. This was necessary in the resistance to the central autocracy, until the three classical branches of power were pulled apart by Acts III and IV of 1848, as well as by Act IV of 1869. From this time on the passive resistance approach was no longer necessary, as the limitation of the rights of liberty and the autocracy was implemented by the horizontal division of power, while the vertical (centre–regions) power division would have reduced the effectiveness of the modern state. For this reason the Parliament quelled the possibility of the right of passive resistance in the County Act of 1870 by granting exceptional power to the county comes, who provided the representation to the centre (i.e. the Ministry of the Interior).25

22  Mezey (2000) 271. 23  Berzeviczy, Albert (1922): Az absolutismus kora Magyarországon 1849–1865 I. (Budapest: Franklin), 199. 24 Lőrinc, László (2007): Helyszíni közvetítés. Heti Világgazdaság 2007/04.vol. (24 Jan). 25  Act XLII of 1870, Article 53.

The Hungarian experience of freedom  51

The historic constitution of Hungary: an outlook to the contemporary era Hungary in its free state form never accepted a charter-based constitution containing democratic principles. It had a historic constitution even in the modern era, consisting of the spirit of the previous thousand years’ fundamental acts. These were not collected into one single volume in the framework of an independent compilation. Hungary first received a charter-based constitution in 1919 and 1949, during the period of Communist oppression. The 1949 constitution was transformed in 1989 and 1990 (at the time of the liberation) according to democratic principles. Finally in 2011, Hungary overruled its charter-based constitution, and accepted a Fundamental Law. The intellectuality of the Fundamental Law revived the ideas of the historic constitution. The Fundamental Law – born on 25 April 2011 – starts with a national avowal, which (inter alia) contains the following lines: King Stephen the Saint (1000–1038) built the Hungarian state on solid ground a thousand years ago and made it a part of Christian Europe. The Hungarian nation is proud of the forebears who fought for the survival, freedom and independence of the country. Hungary professes that the common goal of the citizens and the state is to achieve well-being, safety, order, justice and liberty. Democracy is only possible where the state serves its citizens and administers their affairs in an equitable manner, without prejudice or abuse. The Hungarian nation honours the achievements of the historical constitution and the Holy Crown, which embodies the constitutional continuity of Hungary’s statehood and the unity of the nation. Hungary does not recognise the suspension of the historical constitution due to foreign occupations. Hungary also does not recognise the Communist constitution of 1949, since it was the basis for tyrannical rule, and therefore proclaims it to be invalid. Hungary dates the restoration of the country’s self-determination (lost on the 19th of March 1944) from the 2nd of May 1990, when the first freely elected organ of popular representation was formed. Hungary considers this date to be the beginning of the country’s new democracy and constitutional order. Thus, at present, Hungary intends to restore the constitutional settlement that had existed since the state-founder activity of King Stephen until 1944. Although two decades have passed since 1990, the question of legal continuity has not seriously been discussed. At present, Hungary is in a stage when it is interacting with its thousandyear past, and aims at drawing on the power of the historic constitution for the building of the future – and further, reinterpreting and keeping the ideal of liberty.

52  The Hungarian sources

The Hungarian sources Hungarian Golden Bull, 1222 After the usual dynastical and feudal fights and Hus crusade, Andrew the Second enacted the Golden Bull of 1222. It satisfied partly the Hungarian barons, but it is important mainly because of giving privileges to the socalled servients from whom the nobility emerged. The privileges were supplemented with the right of servients to gather once a year to meet in council and a kind of ius resistendi. Although the ius resistendi was not institutionally established, the idea spread and become one of the most important element in the pre-modern Hungarian political thinking. Yielding to the pressure of the servients’ societal stratum, Andrew the Second (1205–1235), the Hungarian king, issued a letter of freedom –later reputed as the “Golden Bull” – that fixed the privileges of the aristocracy in thirty-one points. Later the forming nobility referred these rights of freedom to themselves and let them recognized by the subsequent kings. A DECREE OF HIS MAJESTIE THE KING, ANDREW THE SECOND, KNOWEN AS THE JEROSOLIMITIAN In the name of the Holy Trinity and undividable Unity. 1. Andrew, by the Grace of God King of Hungary, Dalmatia, Croatia, Rama, Serbia, Galicia and Lodomeria, for ever. 2. Since the liberty of the Noblemen of our Kingdome, as well as of the others, established by the Holy King Stephen, through the power of some rulers, at times vengeful, at times heeding to ill counsel of contemptible people or those who onely care for their owne merits, was in many lands diminished, often the Noblemen themselves unto our Majesties eares, and eares of the Majestie of our ancestors, their Kings, had whispered pledges and advocated adamantly for the repair of our Kingdome. 3. We have thought good; graciously willing to fulfil all their wishes, as Wee are obliged to, especially as it often caused resentment betweene us, which has to bee avoided for the Majestie of our office to remain intact, this depending solely on them; to grant them and other peoples of our Kingdome liberty, by the Holy King bequeathed, 4. And other means that shall favourably influence the improvement of our Kingdome Wee rule as follows:

Article 1 On the annual feast of S. King Stephen

The Hungarian sources  53

Wee pledge to celebrate the annual feast of the Holy King in Székesfehérvár, unless there doe bee a pressing matter or an illness that should prevent it. 1. Should Wee bee unable to attend the celebrations in person, the Palatine shall surely take our place and in our name shall listen to every matter. And all the Subjects may attend should they so will.

Article 2 Stating that no man can bee found guilty without being trialled. Wee express our wish for neither us nor none of our heirs ever to imprison nor destroy their Subjects for the whim of a nobleman, unless they shalbe brought to justice and their guilt proven.

Article 3 On the freedome of Estates and Churches. Wee also shall not collect any taxes nor denari on the Subjects Estates. 1. Wee shall not come to their houses nor villages, unless invited. 2. And from their Churches Wee shall not collect any tax.

Article 4 On the possibility for Subjects to dispose of their Fortunes and Estates. Should a Subject die without leaving a son, a quarter of his estate shall goe to his daughter. The rest hee can dispose of according to his will. 1. And should death surprise him before he should express his will then his closest kinsmen should receive his Goods; and should there not bee any kinsmen then his fortune shall goe to the King.

Article 5 On the possibilities of parish Comes and Royal Biloch. Parish Comes cannot have a say about the Estates, save the matters concerning coynes and tithes. 1. Parish Comes cannot judge anyone save the peoples of his Cities. 2. Thieves and brigands are to bee trialled by Royal Biloch but in the presence of the Comes.

54  The Hungarian sources

Article 6 On Men of Oath, that they shall no longer bee called thieves as they were used to. We thought it best to forbeare them to call the Men of Oath thieves as they heretofore did.

Article 7 On his Majestie the King leading the army out of the Kingdome. Should his Majestie the King wish to lead the army out of the Kingdome, the Subjects are not to bee obliged to follow unless paid with his Majestie’s Moneys. And upon return they cannot bee trialled by Court Martiall. 1. And should a forreine army invade the Kingdome all are required to follow [the King]. 2. Also should Wee like to lead the army out of the Kingdome, and all, who wield control in committees should follow, then they are also required to goe with us and we shall pay them justly.

Article 8 On Palatine power and judge deputies. A Palatine may judge all peoples of our Kingdome, equally. 1. He cannot, however, settle matters of Noblemen when they regard beheading or devastation of property without the knowledge of his Majestie the King. 2. The judges cannot have deputies, save one in their owne Court.

Article 9 On the possibilities of a Court Comes Our Court Comes, for as long as hee shall remain in the Court, may judge anyone, and disputes that herein begun hee may settle anywhere. 1. However should he reside at his property hee may not appoint a Crier nor summon the sides of the dispute.

Article 10 On the due gratuity for the Barons sons who perished in the battle.

The Hungarian sources  55

Should any jobagion, who holds any kind of Publique Office, die during his military service, his son or Brother is to receive the appropriate Publique Office [in his stead]. 1. And should a Subject die in a similar way, his son will bee granted what his Majestie the King deems worthy.

Article 11 How can strangers, by which Wee mean Citizens of forreine lands, bee approved for publique office? Should any stranger, naturally a good person, come to the Kingdome, without the Councils approval, they may not bee approved for Publique Office.

Article 12 On the dowry of women widowed by their spouses in any manner. The wives of those who pass on or are sentenced to death by a lawful verdict, or those who die in a duel, or from any other cause, cannot bee deprived of their dowry.

Article 13 That the Magnates are not to oppress the peasants or the poor. The jobagions are to follow the Court, or set out to any destination, in such a way that the peasants should not receive any harm nor bee oppressed nor plundered by them.

Article 14 On a Comes who should bee destructive towards his peoples. Should any Comes act in a dishonourable manner, violating the solemnity of his office, or hee should act in a destructive manner towards the people of his Citie, if caught in action, hee shall bee shamefully deprived from his honours in front of the very eyes of the entire Kingdome, and all that hee unlawfully took is to bee returned to the rightful owners.

Article 15 On the Eequerries, Hounds Masters, and Falconers. Equerries, Hounds Masters, and Falconers should not dare to stop at the villages to our loving Subjects belonging.

56  The Hungarian sources

Article 16 That the honours of the full Committee are not granted for ever. Full Committees or any honours whatsoever, for Lands or Estates, are not to bee granted for ever.

Article 17 That no one can bee deprived of a purchased estate. Also Estates, that were given for faithful service, are never to bee taken from them.

Article 18 On the possibility of the Subjects to turn to the Son, and on the matters commenced regarding the Royal Son. The Subjects could also, granted our permission, turn freely to our Son, seeking the protection of a Major or a Minor, and their Estates cannot bee destroyed on such groundes. 1. Wee shall not see anyone who hath bene found guilty by a lawful order of our Son, or who doeth have a current court case, before the verdict is reached; and vice versa – so shall not our Son.

Article 19 On the freedom of peasants and strangers. The jobagins of the Cities are charged with the responsibility according to the freedom solemnly bequeathed by the Holy King Stephen. 1. Similarly the strangers of forreine lands are charged with responsibility according to the freedom bestowed unto them.

Article 20 On tithes. The tithes cannot bee bought out with silvers, but when the land gives the harvest and wine, then they shall bee paid. 1. And should the Bishops oppose, Wee shall not support them.

Article 21 Stating that the Bishops are not to give tithes on Royal horses, nor should the peoples contribute the tithes on Royal Estates.

The Hungarian sources  57

Bishops residing on the Estates where tithes should be duetifully paid to our Highnesse, are not to pay the sayd tithes on our horses nor shall their people bee obliged to bring their tithes to the Royal Estates.

Article 22 On Royal hogs. Our hogs cannot bee grazing in the forests and on the meadows of the Subjects, unless they express their will for them to doe so.

Article 23 On a new coyne. Also our new coyne is to bee kept for a duration of one yeere, from Easter to Easter. 1. The denari are to bee the same as they were during the times of his Majestie King Bela.

Article 24 That thugs and Jews may not serve in Publike Office. The Nobles of our Kingdome are to bee called to office of Treasury, Salt, and Tax Comeses. 1. Thugs and Jews cannot.

Article 25 On salt-works. Also the salt-works cannot bee subjected to them, save the Marches of Zabolch and Regecz.

Article 26 On the non-transferability of the ownership outside of the Kingdome. Also the rightes of ownership are not to bee transferred outside of the Kingdome. 1. If any of those have bene transferred or solde they are to bee bought back by the peoples of the Kingdome.

58  The Hungarian sources

Article 27 On the settlement of the mardurines1. The mardurines are to bee settled according to the custom established by his Majestie the late King Koloman.

Article 28 That those proven guilty by a lawful verdict are not to bee advocated for. If Anyones guilt should bee proven by a lawful verdict then no Magnate may act in their defence.

Article 29 On the Royal and Comes income. The Comes may execute solely the Lawes of their Committee; the rest, to the King belonging, namely the cibriones (?), tithes, oxes and two parts of the Cities are to bee given to the King.

Article 30 Stating that, save the Palatine, Ban, and the Royal Comes of the King and the Queene no one is to hold more than one publique office. Also save those four jobagins, namely the Palatine, Ban, and Royal Comes of the King and the Queene, no one is to hold more than one publique office.

Article 31 Stating that the above Articles are to bee confirmed in writing and with a Golden Seal and kept in several locations fore safe guarding. And for this Consent and Edict of ours bee for ever in our times and the times of our heirs valid, Wee straihtly charge and command to write it downe in seven copies alike and strengthen it with our Golden Seal, so that one copie could bee sent out to his excellence the Pope, so that hee could also enter it into his registry; the second one should bee kept by the Hospital; the third by the Temple; fourth with the King; fifth in the Chapter of Gran; sixth in the Chapter of Klausenburg; and the seventh with the Palatine serving at the current time. 1. So that by having hereof document constantly in their sight neither will them nor the King sway from its clauses, and so that there will bee no

1  A kind of a tithe initially paid in marten skins.

The Hungarian sources  59

consent for anyone, bee it the King, the Nobles, or others, to withdraw from them; so that by keeping to hereof they shall enjoy their liberty and for this reason remain faithful to us and to our heirs, and so that they would not deny any due services and obedience to the Royal Crowne. 2. Neverthelesse, should Wee, or any of our heirs, will to defy this decree of ours, by the power of hereof document, and without any stigma of dishonesty, both Bishops and other jobagins and Royal Nobles, all together and each and every one of them, current and future, and their heirs, for this reason will always posses the right to oppose us or our heirs. 3. Given by the handes of Kleutus, Royal Chancellor, and the superiors of the Church in Eger (Agria, Egria, Erlau), in the yeere one thousand two hundred and twenty two since the Word became Flesh, in the presence of the Reverend John of Strygon (Strigonia, Esztergom, Gran, Ostrzyhom), and the honourable Urginus of Colocia (Kolozsvár), the Archbishops: Desiderio of Chanadia, Robert of Veszprém, Thomas of Agria (Agria, Egria, Eger, Erlau), Stephen of Zagreb, Alexander of Varadinum (Varadinum, Magnovaradinum, Nagyvárad, Grosswardien), Bartholomew of Quinque (Quinque Ecclesiae, Pécs, Funfkirchen, Pieciokoscioly, Pecz), Cosma of Jaurinum (Jaurinum, Győr, Raab), Briccius of Vacia (Vacia, Vác, Waitzen), Vincent of Nitria (Nyitra, Nitransy hrad, Neutra), Bishops: in the seventeenth yeere of our Reigne. Edition: Márkus Dezső, ed., Magyar Törvénytár. 1000–1526. évi törvényczikkek (Budapest, 1899), pp. 129–144 (an original Latin text). Translated by Józef Macjon, Weronika and Dean Edmunds.

Clerical Golden Bull, 1222 By editing the Golden Bull, Andrew the Second codified the privileges of nobility, but the Church was not fully satisfied with it. So he edited this letter of privileges and another Golden Bull (in 1231) in which he increased the financial, juridical and political privileges of clergymen. In Hungary the clergymen became a separate order beside the nobility and the burghers. The Church gained unlimited merits in the foundation of the Hungarian State. The clergy – based on their education and knowledge of law – kept on playing a significant role during the subsequent centuries in the state leadership. Their rights were summarized by king Andrew the Second (1205–1235) in a separate letter of privileges: this is the so-called Clerical Golden Bull. ANDREW THE SECOND LIBERTY OF THE CLERGYMEN MCCXXII

From the Vatican registry In the name of the Holy and Undividable Trinity. Andrew, by the Grace of God the King of Hungary, Dalmatia, Croatia, Rama, Serbia, Galicia, and

60  The Hungarian sources

Lodomeria for ever. It hath bene said in the prophecy of David, that it is rightly so for the wisedome and erudition to bee attributed to the ruler who commands over Land, so it is just and desired for the prudent Majestie of the King to practice both virtues herein stated, and by doing so give to Caesar what belongs to Caesar and give to God what belongs to God. Therefore Wee, by the said reasons prompted, see it fit to establish the rightful order of things; Wee give the supremacy of the Royal power in Lay matters, and of Clegrymen in the Spiritual, to all who in our Kingdome can honourably bee called Priests, Deacons, Sub-Deacons, Acolytes, Exorcists, and all who wear a tonsure as a visible sign of their affiliation to Christ our Lord, by the power invested in us Wee grant them such liberty: 1. That should any Lay person take any of them to a lay court, bee it over ownership, theft, land, or any other reason, the secular sentence will bee given in their owne affair. That is as Wee will and command that no Clergyman can bee sued by a Lay person and doeth not have to answer to a Lay person if prosecuted and trialled at a lay court. 2. Thus, as it is prompted by the brilliant mind, should any Lay person wish to accuse a Clergyman of any matter, they have to present their case to the appropriate Church superiors: Archbishops, Bishops, Provosts, Archdeacons, or Deans, or to any other Church juror. Similarly Wee will and command that should any Clergyman face a lay judge they should doe as it is rightful to their status and with the appropriate proviso pursue their rights in a court of Lawe. As it would undoubtedly cause a turmoil and defy the Lawe, rather than give it justice, should a Clergyman bee taken to a lay court by a Lay person, thus taking care and providing for both states, Wee doe not will to diminish the dignity of the Church office, nor doe Wee will to restrict the Lay persons in the matters regarding lay courts. 3. Wee also rule that no man wearing a Clergyman tonsure should owe any additional denari or Pounds, or any other tax whatsoever, to the Treasury. And should any Taxman demand a payment from them or visit them, they are to bee welcomed as a thief and a robber and bee shamefully banished. And should any of our jobagins, no matter how superior, try to doe wrong to them in hereto matters, may hee knowe the same shame and disgrace as they would do so to our heavy displeasure. For it is just that Clergymen, being different to Laymen in their service and way of life, should bee free from lay burdens to serve God freely. 4. And this Wee expresly command: that none of our courtmen, bee it Burgess, or anyone burdened with a serfdome, should bee granted Clergyman tonsure by any Prelate. Those, who lawfully had bene awarded such honours, should they for a profit, or to quench any vain desire, will to perpetrate dishonourable deeds, are to bee prevented to doe so by their superiors with the dread of excommunication, so that they would not bee a cause to scandals and rather a testimony to the truth.

The Hungarian sources  61

So that this Decree of ours, written by us and our Barons, and by the Royal order establishing the liberty, bee binding and restricted in our times and the times to come, Wee have validated it with our Seal, for ever. Should any of our Sons, or Heirs, or jobagions, conceive or intend to oppose its content, they are to bee excommunicated. Given by the handes of Kltus, the Royal Chancellor and the head of the Church in Eger (Erlau), in the yeere one thousand two hundred and twenty two since the Word became Flesh. Edition:, Stephanus Ladislaus Endlicher, ed., Rerum Hungaricarum Monumenta Arpadiana (Sangalli, 1849), pp. 417–419. (an original Latin text). Translated by Józef Macjon, Weronika and Dean Edmunds.

Privileges of freedom of citizens, 1224 During the time of king Géza the First (1074–1077), German-speaking tradesmen settled down in Hungary’s eastern and Transylvania’s southern parts (the so-called King’s Land), establishing soon there cities and gaining significant wealth. Their rights were summarized by king Andrew the Second (1205–1235), which served later as a pattern to the subsequent citizens in the whole country. The document, called Adreanum, edicted by Andrew the Second created an autonomous Saxon territory in South-Transylvania. German speaking people moved into Hungary during the twelfth-thirteenth century, some of them erected cities on the North and got the privilegies of burghers, but large Saxon population arrived to Transylvania. The Adreanum gave collective privileges to Saxons, what they enjoyed until the nineteenth century. ANDREW THE SECOND LIBERTY OF THE SAXONS OF TRANSYLVANIA MCCXXIV

From the statute book of Charles the first, from 1317 In the name of the Holy and Undividable Trinity. Andrew, by the Grace of God the King of Hungary, Dalmatia, Croatia, Rama, Serbia, Galicia, and Lodomeria, for ever. As it lies within the Royal duties to effectively suppress the unruliness of the haughty, so it befits him, out of the Royal mercy, to bring a relief to the humble in distress, to judge the service of the faithful, and to each of them repay graciously according to their loyaltie and duety. Therefore, as the faithful Germain visitors from Transylvania all came to face our Majestie and in front of our very eyes poured out their sorrows, pledging humbly for their case, that the freedom they have once bene granted by the most merciful late King Gyza, our grandfather, can bee taken from them should our Majestie not open his heart to their pledges, which would cause such poverty that not even

62  The Hungarian sources

the humblest service to our Royal highness could bee provided. Thus hearing their lamentations, in our mercy, Wee will everyone to know, living now and in the future, that following in the footsteps of our great Ancestors, moved deeply with love, Wee grant them their initial liberty in such a way:   1. That the peoples living in the lands from Uaross to Baralt, including the lands of Szeklers, Szebus, and Daraus, are one nation and are to have one Judge. The Committees are to cease immediately, save the Committee from Cibinia (Cibinium, Nagszeben, Hermanstadt, Sibiu).  2. And any Comes that is to come from Cibinia is not to dare even appoint anyone to the said Committees should hee not live among them and not had bene chosen by the peoples as the one deemed most worthy; So should no one attempt to persuade the sayd Committee with Moneys.   3. They are obliged to pay to our Treasury fifty Marks of silver each yeere. Wee will and command each of the land owning vassal, or anyone else living within the established borders, to pay the said tithe, save the one who was granted a special privilege with regards to the matter at hand.   4. Wee also grant them that the Moneys they are or will bee obliged to pay to us, they shall pay in no other piece but Mark of silver, established by our dearest late father Bela, namely they shall owe four and a half vierding of the Cibian pound and a denari of Colocia, unless they will vary in weight.  5. And may they not avoid our emissaries when they will bee sent to collect the taxes due and in the days of their presence pay three Loths for their expenses.  6. They are to appoint five hundred soldiours in case of a warre within the Kingdome. Should the warre take the soldiours outside the Borders they ought to send a hundred, provided the King shall personally attend the Campagne. And should hee send a jobagion in his stead, bee it as a rescue to a friend or in his private affair, they will bee obliged to send 50 men.   7. They can choose their Priests freely and present the chosen ones, and to them pay their tithes and answer, according to the universal Church Lawe and olde custom.   8. Wee also will and expresly command that no one should try them, save us and the Cibian Comes, appointed by us at an appropriate time and place. Should they find themselves facing any judge2, they are charged with obedience onely towards a court of councillors. And may no one dare summon them to Us unless the case cannot bee decided on by their judge.

2  Or: were sentenced to pay a fine or retribution.

The Hungarian sources  63

  9. Additionally, the forests of Blak and Bissen and waters within them Wee give to the common use of the said families of Blak and Bissen, so that they can rejoice in the liberty granted and hereafter serve no one. 10. Wee also grant them the right to use one Seal that will bee recognised by us and our Magnates. 11. Should anyone of them wish to sue the other over Goods then the witnesses may bee called onely from among those living within their borders. 12. Excluding them from any jurisdiction, Wee grant them the right to use the minor salt-work, according to the olde custom, for eight days arounde the feasts of S. George, S. King Stephen, and blessed Marcin, and may no tax collector bother them on their way in or out. 13. As regards the forest and all its adjoining lands and waters in their waterbeds, Wee graciously allow, as it can onely bee granted by the King3, all, bee it poor or wealthy, to use. 14. Wee also will and by the power invested in us command that none of our jobagins dare demand from our Majestie a Village or an Estate. Should they offend in the contrary, they shall do so to our displeasure and their claim must bee renounced by the power granted by our Majestie. 15. Wee also command that the said faithful, should it so happen that Wee visit them on a journey, will bee obliged to pay for onely three days of our expenses. Should a [?] bee sent to them by and in our name, they shall pay onely for two days of stay – the first and the last. 16. To all the aforementioned liberties Wee add that their merchants may goe and return from anywhere within our Kingdome and shall not bee charged for doing so, executing their rights by the favour of their King. Wee also rule that their business should bee free from taxation. For what hath bene written above to last solemnly and immovably in the future Wee command to validate this decree of ours by stamping it twice with our Seal. Given in the yeere one thousand two hundred and twenty four since the Word became Flesh, in the twenty first yeere of our Reigne. Edition: Stephanus Ladislaus Endlicher, ed., Rerum Hungaricarum Monumenta Arpadiana (Sangalli, 1849), pp. 420–423 (an original Latin text). Translated by Józef Macjon, Weronika and Dean Edmunds.

The decree of Louis I, una eademque libertas nobelium, 1351 The Anjou Louis, the Great (king of Hungary, Poland, and Napoli) enacted the Codex of 1351. It increased the privileges of nobility (i.e. aviticitas and fiscalitas) and it codified the notion of equal liberty to all

3  Or: what can bee onely granted by the King.

64  The Hungarian sources

noble men, even if there were many practical power and economical differences among them. This source is a significant textual witness of the formation of a uniform noble order in Hungary by the mid-fourteenth century. Hungarian – and subsequently Polish – King Louis I. of Anjou (1342–1382) reinforced the ordainments of the Golden Bull (1222), and declared the legal equality of the nobility, independently of its wealth and political influence.

Article 11 The nobles of the Kingdome are to enjoy one and equall liberty. Wee consent to the pledge of those Nobles for all men of loyaltie and duety living within our Kingdome, and in the dukedom Estates within this Kingdome of ours lieing, to enjoy one and equall liberty to all. Edition: Márkus Dezső, ed., Magyar Törvénytár. 1000–1526. évi törvényczikkek (Budapest, 1899), p. 174 (an original Latin text). Translated by Józef Macjon, Weronika and Dean Edmunds.

Werbőczy’s Tripartitum, Primae Nonus, 1514 Stephan Werbőczy, a well educated jurist and iudex curiae regiae and comes palatinus, started to collect the laws of Hungary after 1504. The codex was completed in 1514, but it never was legally sanctioned. Still, the codex – called Tripartitum – went into praxis and it formed the legal thinking. Its formulation of the privileges of nobility, the equality of nobility, and the directly connected ius resistendi was the basis of the political identity of nobility in the conflicts with rulers. And they tried to spread these privileges to other non-privileged social groups in the nineteenth century during the political modernization of the kingdom. Ulászló (Wladislaw) the Second of Jagiellon (1490–1516) aimed at collecting the hitherto issued and still operative Hungarian legal material. This work was fulfilled by Stephen Werbőczy, an illustrious legal scholar. One of the most important regulations of this work is the enumeration in the 9th title of the First Part, summarizing the basic rights of the nobility.

Claim 9 Although these noblemen possess many liberties, granted in their privileges and Royal decrees, four are deemed to bee of the utmost significance and to those I would like to refer. 1. Firstly, if they were not summoned to court, or appointed, and by the court of justice found guilty, they cannot bee ever imprisoned due to onely some insistent demand, cries, or plegdes. 2. Neverthelesse, this liberty, is revoked in criminal matters such as purposeful murder, scorching of villages, theft, plunder, or robbery,

The Hungarian sources  65

3. 4.




and also in adulterous rape; in all such instances they lose without delay their honour, title, and liberty. If it should prove possible they can even bee held captive, in the place where they were found disobedient, by a peasant, and they can bee sentenced and punished according to their deeds. Should they flee from that place and successfully avoid captivity they can then onely bee summoned to court by an order and onely in court can they bee found guilty and punished. Secondly, the Nobles of the entire Kingdome answer to no one, save the rightful King, and the King himself cannot hold them imprisoned following a male advice or a simple complaint. A dispute has to bee lawfully judged and both sides bee present at the Triall, and bee granted the Right to speke. Thirdly, they can execute their rights and make use of all the income from their lands generated, freely and without any constrains, according to their will. They are deemed to bee wholly and absolutely exempt from any servitude and tithes, and collections, and charges, taxation, and tricesimu (one thirtieth – a duty paid at the border). They are onely obliged to serve in the army should the Kingdome bee in need. Fourthly and ultimately (to save all the others), should any of the Kings will to defy the liberties listed and proclaimed in the general decree, by the Magnificent late Ruler, Andrew the second, the Jerosolimitan (on whose decree every new ruler swears an oath during their coronation), then without any stigma of dishonesty they posses the right to oppose them. By nobles Wee mean all Lords, Prelates, Barons, and other Magnates and Royal Dignitaries who, as stated above, are always protected by the one and equall privilege of liberty.

Edition: Márkus Dezső, ed., Werbőczy István Hármaskönyve (Budapest, 1897), pp. 64â 68. (an original Latin text). Translated by Józef Macjon, Weronika and Dean Edmunds.

Vienna peace-treaty, 1606 (Ratification: Act I. of 1608) In 1541, Hungary was divided into three sections: the southern and middle parts were ruled by the Turkish Empire; the western and northern territories (Kingdom of Hungary) were governed by the House of Habsburg, while the Principality of Transylvania was located in the east. From 1604, the Kingdom of Hungary and the Principality of Transylvania made war on each other, which was ended by an arrangement in 1606. The regulations of this agreement granting the rights of freedom appear in the text. The peace treaty ended a civil war between Stephan Bocskai and (Habsburg) King Rudolph. The king was not really successful against

66  The Hungarian sources

the Turks and he needed money for the war, therefore he started to confiscate the barons properties. One of them was Bocskai, an originally pro-Habsburg baron. Bocskai, as the freely elected Prince of Transylvania, defended not only the inherited constitutional privileges of nobility, but he forced the Habsburg king to grant religious freedom for Protestants of Hungary. In this treaty and later on, the defence of old Hungarian constitution against the absolutistic Habsburg rulers fused with Protestant cause. ROYAL DECREE 1608

Prior to Coronation Wee Matthias the second, by the grace of God King of Hungary, Dalmatia, Croatia, Slovenia, &c.; appointed King of Czech, Archduke of Austria, Duke of Burgundy, Styria, Carinthia, Carniola and Wurtemberg; Margrave of Moravia, Earle of Habsburg (Aargau) and Tirol &c., Wee doe publish and give knowledge by this our proclamation to all manner people whom this concerns: 1. Forasmuch as it hath pleased the almighty Ruler and Lord Rudolph the second, by the grace of God elected Emperor of Rome and Germanie, Hungary, Czech, &c., our King, Lord, and Brother most venerable, to whom from the dawn of his rule and coronation nothing was more desirable but that this Kingdome of his, Hungary, with all the other Realmes and Crownes which to her belong, by so many faiths, misfortunes and turmoil both internal and external troubled and perturbed, by the help of Gods holy assistance protect and to its former state return; and for him and for all his faithful Realmes, according to his pious and fatherly care, and in the zeale of owne Conscience, find a suitable quartermaster and leader: 2. The Sovereignty over the Kingdom of Hungary and its helm, due to his faithful and brotherly love towards us, and due to the humble plead of the Status et Ordines of the thereunto Kingdom of Hungary, hee not onely entirely giveth but also the Holy Crowne of hers with all its jewels both bequeatheth and cedeth in such a way; that hee not onely dischargeth himself from all bonds and duties of observance towards the liberties and privileges of Status et Ordines hee vowed at the time of his coronation and inauguration as the King of Hungary, freeing and absolving himself, but also the aforementioned faithful Hungarian Subjects, the Lords, namely Prelates, Barons, Magnates, Nobles, Advisors, all other Officers and Ministers whatsoever, and finally Status et Ordines of the aforementioned Kingdome of Hungary with all Realmes and Crownes to her subjected and incorporated, in this way hee them also freed, absolved, and released from the vow of obedience towards him as the rightful

The Hungarian sources  67

and crowned King; and also in this special decree of his hee advised as a Brother that wee in the future for ourselves could a King accept, proclaim, and Crowne, and thus bee hereafter empowered. 3. Wee therefore wanting the aforementioned matters wholly and each and every one to find desired fulfilment; on the grounds of an olde custom granted by the Majestie of the aforementioned Emperor, and by the power of the Act passed on the latest Assembly in Presburg of the aforementioned Citizens of the Kingdome; as the superior Lieutenant, on the feast of S. Michael the Archangel 1608, Wee have summoned and proclaimed the Assembly of the aforementioned Citizens in the Royal Citie of Presburg; Wherein, after much deliberations over legal matters betweene us and Status et Ordines of the aforesayd Kingdome of Hungary, they have decided to take into further and special consideration the Articles of Vienna, to discuss, appraise, and write downe in a proper and binding manner: so that finally they will elect, proclaim and by Gods holy assistance Crowne us nem con and by common consent for their rightful Lord and King. 4. Having done the above in an appropriate manner they have asked our Majestie humbly for the aforementioned Articles of Vienna and other, fit for the current circumstances, by the common consent passed and declared, all of their content deemed important, desirable, and approved; to grant our Royal consent and graciously accept and approve; Wee shall gracefully adhere to them, so through this others whom they concern would equally and continually abide. 5. The Articles are as follows:

Article 1 On religion In respect of the first Article of the Act of Vienna it hath bene resolved by the Status et Ordines of the great Kingdome of Hungary: 1. That religious practices among all Barons, Magnates and Nobles, as well as free Cities, Status et Ordines of the Kingdome, within their owne and Kingdoms Goods; in this manner at the Boarders as well, and among the soldiours of the Hungarian Kingdome, there will bee Religious freedom and freedom of Profession to all; and in the townes and villages wanting freely to participate, That thereof there will bee no restrictions; Wee hereby all men admonish to take warning and doe not restrict and trouble anyone so that they can worship in the way they favor. 2. And therefore Wee doe hereby declare and publish that to avoid any disturbances, hatred, and quarrel betweene Status et Ordines, each Religion and Profession is to bee led by its owne Ministers or Keepers.

68  The Hungarian sources

Article 2 On the peace betweene Hungarians and Turks On the second Article. Forasmuch as it hath pleased the almighty God a peace betweene the Turks and Hungarians hath bene reached. 1. Therefore it hath bene established that his Majestie the King shall observe it and guard it; That without the knowledge and permission of the Kingdome of Hungary hee shall not wage warre and call upon a Forreine solider.

Article 3 On the election of a Palatine and personal presence. On the third Article. As regards Palatine: Status et Ordines proclaim that his Majestie the King should present to them two persons from the Catholic church and equally as many from the Evangelic Church; the said persons to bee speedily put forward, so that betweene them, who they shall see fit, with the help of Almighty God, they shall choose. 1. If he should sadly bee called to the mercy of the Alimighty God (as often happens on our earthly dwelling), then his Majestie the King should graciously keep to the following Lawe; That hee will call a special Assembly within a yeere of Palatines passing that a successor bee chosen in his stead. 2. And should his Majestie not desire to doe so or should He fail to, it is solely by the power of this Article that the Lord Chief Justice or, if hee is not present, the Lord High, is entirely charged with and by all means obliged, according to the lawful circumstances, (as they will answere to the contrary at their uttermost peril), to call upon a special Assembly and proclaim it amongst the peoples of the Kingdome, for the successor of the departed Palatine to bee chosen. 3. And forasmuch as the obligation of presence together with other obligations of the Barons (as his Majestie is releasing all Status et Ordines of the Kingdome from their oath) shall cease, therefore it hath bene decided that this obligation, by the Statutes of the Kingdome, and by the Council of Hungary, bee reinstated.

Article 4 On importing and keeping the Crowne On the fourth Article. Since the Crowne of the Realme, with its Jewels, Royal Books, and written Documents, hath bene given not onely to his Majestie the King, the superior Lieutenant of the Kingdome of Hungary, but also to Status et Ordines wherein present, and to the

The Hungarian sources  69

absent Citizens of the Kingdome, by his Majestie the Emperor (who upon their succession was also released and absolved from them) were bequeathed and ceded. 1. Therefore it is right and just for the Status et Ordines of the Kingdome to demand for the Crowne, by the power of the Articles of Vienna and olde custom, to bee immediately transferred and kept here in Presburg; and after the coronation of his Majestie the King remained in the handes of those who, from among the natif Hungarians, with its keeping shalbe charged; and that it shall not leave the Borders of the Kingdome.

Article 5 On the Lord High Treasurer On the fifth Article. The Lord High Treasurer, who is to bee a secular person, by his Luminosity the King, according to the Articles of Vienna and with the advice of the Hungarian Council, during the current Assembly is to bee elected. 1. Wee have also decided that forreine nations shall thereunto not bee in the least concerned with the treasure of the Kingdome and her Realmes.

Article 6 Which Bishops should bee accepted into Councils? Also that no Cities in the Kingdome should bee liberated (from the burdens or obligations) or released from services without the knowledge of the Hungarian Council. On the sixth Article. It remains in force, in compliance with the decisions of the first treaty. 1. Whether the Bishops can hold lay office will bee decided by his Majestie the King together with the Inhabitants of his Kingdome during the current Assembly. 2. However, so that such Bishops who doe not possess their owne Bishops residence in their Churches, nor any Bishop ownership in the Kingdome, should not bee admitted to such Councils. 3. As regards the Cities and Settlements which doe not belong to the Kingdome or which had not bene mentioned in the Royal Decrees; such as Modor, Bazin, Saint George, and other similar to them, should they hold representation and vote in Status et Ordines of the Kigdome shalbe decided immediately on by the Kingdome and his Majestie the King with the approval of the Hungarian Councill. 4. As for now it hath bene decided that his Majestie the King in the future should not liberate any Cities (from the burdens or obligations)

70  The Hungarian sources

nor should hee release them from services without the consent of the Hungarian Councill. 5. Nor should hee give any Estates to the Citie districts under any previous Lawes of the Kingdome, nor under the recent Article three and thirthy of the late King Ferdinand, anno 1542, nor any other pretence.

Article 7 On the Bishops Residence. On the seventh Article. The Article regarding the Bishops Residence previously enacted remains en force; as it hath bene described in the Articles of Vienna.

Article 8 On the Jesuits. On the eight Article. The Article concerning the Jesuits also remains en force 1. Namely that they shall not possess any fixed properties nor any ownership within the Church.

Article 9 How should Goods bee donated and bequeathed? Donations and bequests in the Kingdome of Hungary and all the Realmes which to her belong are to proceed according to the olde custom. 1. And should they bee written downe anywhere else but in the offices in Hungary they shall not bee hereafter accepted by anyone. 2. Moreover, should any of such bee carried out they shall bear no power and bee treated as non-existent. 3. And should any forreine and to the Hungarian Kingdome unknowne clauses bee introduced to the customary donations, they bee not observed and instead erased and amended.

Article 10 The Chancellors Office shalbe entrusted to a person who hath rendered great service, and his Royal Majestie in Hungarian matters shall onely seek advice of the Hungarian Council; and the supplicants shall turn with their business onely to the appropriate Counsellors and Secretaries. On the ninth and tenth Articles. It hath bene decided that the entire command and stateliness of the Hungarian Council; since the solemnity of the office hath bene reinstated by his Majestie the King; and

The Hungarian sources  71

in accordance with the will of the Hungarian Council, to the suitable person should bee entrusted. And that all the Offices, of the utmost and least of importance, even the trzydziesciny, their Prefectures, both Hungarian and to Hungary belonging, the Realmes of Dalmatia, Croatia, and Slovenia, by natif Hungarians and all the nationalities which to the sayd Kingdome belong and are adjoined, bee held in the future. 1. May his Majestie the King watch sufficiently over the aforesaid Status et Ordines of the Kingdome, so that in the future no other Crownes nor forreine nations shall meddle in Hungarian affairs; 2. And so that hereafter in the Hungarian matters no other but Hungarian Council (from all the Realmes of Hungary, Slovenia, and also the nobles gathered at the current Assembly according to the decree by his Majestie the late King Vladislaus the third, Article seventh, and by his Majestie the late King Louis the second, Article nine and thirttieth), and under no other religion should his Majestie turn to for advice. 3. Therefore it hath bene decided that should any of the Hungarians in the Hungarian matters turn for council to Councillors and Secretaries of any other nation, and such council they should receive, this council shalbe deemed as unlawful and void; 4. Since all other nations turn for council to their countrymen instead.

Article 11 Prefectures and Capitaneatus (captaincy – military district) , shalbe entrusted to Hungarians who in the Hungarian Kingdome posses land; and with regards to the Slovenian garrisons his Majestie the King, together with his Majestie the Archduke Ferdinand, through the agency of the emissaries shall decide. The Marches of the prefecture and capitaneatus, both in this and in the other said Kingdomes, to natif Hungarians, and other nationalities which to the sayd Kingdome belong and are adjoined, to the persons clearly appropriate and of loyaltie and duety, during this current Assembly his Majestie the King, in unison with the Hungarian Council, shall entrust. 1. Moreover, they insistently plead for the offices of the Chief Capitaneatus,, garrison Vesprimia and Neogradia, to natif Hungarians, and currently with the exclusion of the Jaurinum Citie (as there, according to the olde tradition and custom, the Hungarian Under- Capitaneatus,, who possess olde power and force, in the future are to bee sustained, and the said chief Capitaneatus of Jaurinum is to bee subjected to the Lawes of the Kingdome and bee subordinate firstly to his Majestie the King, and secondly to the Palatine and hee should remaine clear of the jurisdiction of the

72  The Hungarian sources

landowners; and shall hee offend in contrary hee will act against the Lawe of the Kingdome), to the Lords, namely Barons, or to the Nobles who have the ownership of land within the Kingdome: the Capitaneatus of Komarom Citie; to a natif Hungarian, a person of loyaltie and duety and under no other Religion, bee entrusted. 2. And in Dalmatia, Croatia, and Slovenia, ordering out from the garrisons, Chief Capitaneatus, and other forreine Prefects and Soldiours, with regards to the Prefecture of the Marches, together with his Majestie the Archduke Ferdinand, &c., his Majestie shall decide and according to the Agreement hee shall send his emissaries to Graecium Graz (Gracu). 3. Moreover, hee shall entrust during this current Assembly the Banat region, from the river Drawa to the Adriatic Sea, with all its former power, to a person of great loyaltie and duety.

Article 12 On removal of the forreine soldiours, keeping of the Zengg Citie within the Kingdome, and on reinforcement of the Slovenian garrisons. The soldiours of Germanie and other forreine soldiours, both from the fort itself as well as from the Varadinum Citie, and the Cities of Murán, Divén, Köszegh, Léva, and Lipche, and other settlements (if they are not on the Borders of the Kingdome) His Royal Highnesse shall immediately remove. 1. Additionally, may his Majestie the King under no circumstances allowe for the Citie of Znegg in Dalmatia to bee torn out from the Kingdome. 2. And moreover, may hee, according to his Royal and fraternal caution, kindly become solicitous about and cause that the soldiours of the Marches of the aforementioned Realmes of Dalmatia, Croatia, and Slovenia hereinafter bee kept in their numbers and maintained at undiminished pay from the taxes of the Styria, Carinthia, and Carniola provinces. And may hee see that all the due payments bee given to them accordingly. 3. Also various stipulations, provisions and fortifications (are to bee governed accordingly as is done at present). 4. And according to the aforesayd Articles of Vienna (to which his Majestie the Archduke Ferdinand with his Countreys agreed and them guaranteed) may all said Marches bee taken from him by his Majestie the King.

Article 13 On how the ranks and offices are equall betweene Hungarians and Germains in the free Cities, and if Hungarians, Slovenians and Czech can buy properties without any constraints.

The Hungarian sources  73

And likewise Status et Ordines doe believe that it cannot remain unmentioned that many complaints have bene submitted that they are not allowed to purchase houses in Royal, Free, Mountaine and Slovenian Cities, and that they are not admitted to hold any Office in their owne land. 1. It hath therefore bene decided that in all free Cities, regardless of the nationality, the Chief Judges and Senators, as well as other ranks and offices, to the Hungarians, Germains, Czech and Slovenians, and under one religion, whatever the Citie of their residence, hereafter to all of them, alternately shalbe entrusted. 2. And for the natif Hungarians to bee allowed to buy and build properties in the centre of those Cities, and their belongings, to any of the neighbouring Cities, according to the decree by the late King Ferdinand, anno 1563, Article two and sixtieth, carry and store; 3. Under the provision, however, that the Hungarians on their side, owing to their urban properties, shall take on publique burdens and rejoice in, and exercise, all liberties, privileges, and immunities equall to all other citizens; 4. Preserving and not breaking their privileges accordingly and lawfully obtained that they have bene exercising before. 5. It is accepted that the same should bee preserved and observed with regards to the privileged Cities.

Article 14 Hungarian claims against the citizens of Cassovia and Oedenburg (Sopronium). With regards to the exportation of wine, the claims against the citizens of Cassovia and Oedenburg, and other Royal and privileged Cities: Wee affirm the fifth Decree of his Majestie the late King Vladislaus, Article nineteen.

Article 15 For the Goods which came into the possession of the State not by purchase but without Fee, by his Majestie the King to bee graciously entrusted to the persons of loyaltie and duety. It hath bene decided that with regards to the Goods that came into the possession of the Crowne not by purchase (as it happened before), for all to know that virtue hath bene justly considered: to all those who rendered great service, according to the olde customs of the Kingdome, his Majestie the King shall them graciously give and bequeath.

Article 16 Status et Ordines in their privileges and liberties, in accordance with the Articles of Vienna, are to bee preserved, and should any new Lawe

74  The Hungarian sources

bee passed during an Assembly, his Majestie the King is to affirm it in an appropriate document. On the eleventh Article. It is especially appropriate to, in accordance with the herein Article, written downe in Vienna, for the liberties, privileges, customs and all immunities there stated, which belong to the Status et Ordines of the Hungarian Kingdome, to bee by his Majestie the King undiminished and solemnly observed. 1. And for all the decrees of the Kingdome, Articles, and other legal documents as such, by the designated Citizens of the Kingdome to bee amended, arranged, and finally by those Citizens during the next Assembly ratified, it hath bene resolved that his Majestie the King is obliged to ratify and affirm them in an appropriate Royal Document. 2. And it was also resolved that in accordance with the Article herein written, no one, unless lawfully trialled and in the Majestie of the Lawe found guilty, shalbe punished.

Article 17 The remaining Articles of Vienna during the current Assembly are to bee ratified. On the twelfth Article and other which immediately follow it hath bene decideed that: 1. They shall remain en force until the coronation of the future King. All donations and bequests made during the current Assembly, in accordance with the peace agreement of Vienna, without any delay by his Majestie the King and together with Status et Ordines are to bee fulfilled and ratified. Since by doing so they shall bee legally binding by the actions of his Majestie the King, in observance of all Articles of Vienna and the aforementioned treaties.

Article 18 For his Majestie the King to reside in the Kingdome. Firstly the Hungarians demand form his Majestie the King that hee liveth amongst them in the future and personally rule over his Kingdome. 1. And should his Majestie the King for any grave reason bee unable to doe so and for an extended period of time hee should remain absent, residing at a considerable distance, then may his Majestie the King, in such circumstances being, entrust all his powers to the Palatine at the time, so that hee can rule over this Land, together with the Hungarian Council, as if the King himself was living here (according to the olde customs) ruling and administering.

The Hungarian sources  75

Article 19 How can the Goods put in Austrian pledge bee recovered – should they bee bequeathed or bought out? Secondly. They plead for his Majestie the King, owing to the true love and affection the Hungarian peoples have towards Him which they had heretofore proved many a time, and due to the faithful service they hereinafter provide; 1. For all Goods, that once upon a time were put in Austrian pledge, namely: Pernstein, Kobelsdorf, Gynz, Forchtenstein, Eisenstadt, and Hornstein, with all their adjoining properties, owing to their gratitude that cordially his Majestie surroundeth, and who doe not object to his Majestie becoming their King, according to the well knowen vows of their ancestors, gratuitously and without any lodgement, free from their obligation and current owners (since in the past years they have gained from these lands a plenty, and the lodgement due they had received many a time) and placate them in such a way that they should leave without delay the sayd castles and lands, and without hesitation return them to Hungarian handes. 2. Should the Austrians hesitate to gratuitously return the sayd castles, then may them bee bought from them at a lodgement in writing agreed.

Article 20 The castle of Lublau, together with thirteen Cities of the Szepes Committee, is to bee bought out from the Poles. They are also to bee pursued under the rigour of the Lawes with regards to the lands they had taken by force. Thirdly. Due to the fact that the castle of Lublau, together with its adjoining properties and the thirteen Cities of the Szepes Committee, not in an non hearmful way to the Hungarian Kingdome, many years ago were put in the pledge of the Poles 1. It was decided for his Majestie the King to send to the Polish King and Polish Status et Ordines his extraordinary Hungarian emissaries. Thery are to carry a message that the Citizens of the Kingdome are determined to regain, after so many years, the aforesaid castle with its adjoining properties and thirteen Cities. They shall offer them and pay the outstanding amount, wholly. 2. Men by the name of Sáros, Szepes, Beregh, and Trenchin compleinen that they had suffered a great deal of troubles from their Polish neighbours due to them annexing lands. It hath bene, therefore, decided for the Poles to bee pursued under the rigour of the

76  The Hungarian sources

Lawes for those actions and for the borders betweene Austrians, Styrians, Carynthians, Narniolians, Moravians, Silesians, and other, to bee established and restored to as they were previously.

Article 21 May his Majestie the King care and provide for the Marches. Fourthly. Since the safety and continuance of not onely this weakened Kingdome, as the shield and bulwark, but also the other neighbouring Kingdomes and Countreys, relies both equally on wise and safe command over the Marches. 1. Therefore may his Majestie the King, together with the Status et Ordines, immediately find a proper way as well as point out how, and by what means and manner, the garrisons of the Kingdome could bee supplied in additional bulwarks, buildings, supplies and necessarie men so that under the favourable auspice of his Majestie the King all could bee safe, peaceful and well protected against unfriendly ambush.

Article 22 The usurers, who had given their money to obtain the Goods of the Treasury or the Mines for a profit, shall lose them and are to bee proven guilty of embezzlement in calculations of the income. Fifthly. As it follows from the olde and publike decrees of the Kingdome of Hungary, the Goods belonging to the Crowne cannot bee by any of the Hungarian Kings, for whatever reason, even in the most pressing matters (as it hath bene expresly stated in the decree of King Albert, Article sixteen, and a multitude of others) put into pledge of any power. And as it is knowen that many already have given large sums of money for loans on mines or “trzydziesciny”; 1. It hath, therefore, bene decided on the grounds of those decrees and the seventh decree of the late King Vladislaus, Articles two and three; And on the grounds of publique Acts it is clearly concluded that such usurers, who loaned their money for the Goods of the Crowne of Hungary to obtain a profit shall not onely lose them, but also should bee proven guilty in their calculations. 2. With the exception of the castles of Munkáts, Zólyom, and Diósgyör that, since it is knowen they had bene “bequeathed” for the publique needs of the Kingdome and the Marches (by “bequeath” Wee mean secured at a sum of Moneys) and the Moneys in that manner raised was allotted not for anything else but their renovation and for the pay of the soldiours, therefore, the said castles are to bee bought back and retrieved from the currant owners for the sum bequeathed.

The Hungarian sources  77

Article 23 The castles of Murán and Lipche after their purchase are to bee entrusted to Hungary. Sixthly. As it was decided in the Articles of Vienna for the castles and other ownerships, which so far have remained in Germain, and other forreine handes, to bee bought back by the Hungarians for the sum specified in the agreement: 1. It hath, therefore, bene decideth that according to those Articles the castles of Murán and Lipche are to bee bought back and regained from the Germain and other forreine handes. Edition: Márkus Dezső, ed., Magyar Törvénytár. 1608–1657. évi törvényczikkek (Budapest, 1900), pp. 7–24. (an original Latin text). Translated by Józef Macjon, Weronika and Dean Edmunds.

The Fundamental Law of Hungary (25 April 2011) In the past Hungary endured without a written constitution, and it received its first written constitution from the Soviet Union in 1949. Under this document, Hungary would suffer one of the harshest totalitarian regimes in the region during the first part of the 1950s. When the Soviet experiment collapsed, jurists from Hungary’s opposition parties joined members of the ruling Socialist Party and re-wrote the constitution, heavily amending it. It was adopted in 1989 by the last Socialist Parliament. With the landslide victory of the center-right coalition of the FideszHungarian Civic Union and the Christian Democrats in 2010, conservatives gained a huge majority in parliament. They immediately started to draft a new constitution. It was finally adopted by the Hungarian parliament and signed into law by President Pál Schmitt on April 25, 2011. We hold that the strength of community and the honour of each man are based on labour, an achievement of the human mind. We hold that we have a general duty to help the vulnerable and the poor. We hold that the common goal of citizens and the State is to achieve the highest possible measure of well-being, safety, order, justice and liberty. We hold that democracy is only possible where the State serves its citizens and administers their affairs in an equitable manner, without prejudice or abuse. We honour the achievements of our historical constitution and we honour the Holy Crown, which embodies the constitutional continuity of Hungary’s statehood and the unity of the nation.

78  The Hungarian sources

We do not recognise the suspension of our historical constitution due to foreign occupations. We deny any statute of limitations for the inhuman crimes committed against the Hungarian nation and its citizens under the national socialist and the communist dictatorship. We do not recognise the communist constitution of 1949, since it was the basis for tyrannical rule; therefore we proclaim it to be invalid. We agree with the Members of the first free National Assembly, which proclaimed as its first decision that our current liberty was born of our 1956 Revolution. We date the restoration of our country’s self-determination, lost on the nineteenth day of March 1944, from the second day of May 1990, when the first freely elected organ of popular representation was formed. We shall consider this date to be the beginning of our country’s new democracy and constitutional order. We hold that after the decades of the twentieth century which led to a state of moral decay, we have an abiding need for spiritual and intellectual renewal. We trust in a jointly-shaped future and the commitment of younger generations. We believe that our children and grandchildren will make Hungary great again with their talent, persistence and moral strength. Our Fundamental Law shall be the basis of our legal order; it shall be an alliance among Hungarians of the past, present and future. It is a living framework which expresses the nation’s will and the form in which we want to live. We, the citizens of Hungary, are ready to found the order of our country upon the common endeavours of the nation.

3 KING, ESTATES AND THE CZECH CROWN The legal sources of the ideas of freedom in the medieval and early modern Czech lands1 Jana Janišová and Dalibor Janiš

Early middle ages: aristocracy, election of the sovereign and royal title The foundations of the Czech state under the reign of the Přemyslid dynasty were laid in the course of the tenth and eleventh centuries. The key partners of Bohemian dukes were representatives of early aristocracy referred to in historic writings as comites, primates, nobiles, seniores or simply Bohemi. It was these omnes Bohemi that represented the early Czech “political nation”.2 This aristocracy was connected with the sovereign court (curia) and charged with administration of the individual parts of the country. Thus, they significantly contributed to governing the Czech state. They expressed their will at the common assembly (commune colloquium), which were joint meetings of the duke and leading aristocrats, well documented already in the eleventh century. Wider assemblies were also attended by the “second order” warriors (milites secundi ordinis) and since the twelfth century also leading representatives of clergy. The aristocratic elite was small in number, only including about 20 noble families, often in personal and family connection with the governing Přemyslid dynasty. The nature of the assemblies points to a certain “dualism” of power divided between the sovereign and early aristocracy already in early Mediaeval Czech state.3

   1 The study was implemented with generous support of the Grant Agency of the Czech Republic (Grantová agentura České republiky) as part of Grant Project No P405/12/0639.   2 Josef Žemlička, Čechy v době knížecí (Praha, 1997), pp. 328–47; Dušan Třeštík, ‘Počátky přemyslovské státnosti mezi křesťanstvím a pohanstvím’, in Martin Wihoda and Demeter Malaťák, eds., Stát, státnost a rituály přemyslovského věku. Problémy, názory, otázky (Brno, 2006), pp. 25–44.   3 Robert Antonín, České země za posledních Přemyslovců, I. (1192–1253). Cestou proměny společnosti k vrcholně středověké monarchii (Praha, 2012), pp. 74–89; Martin Wihoda, ‘Sněmy Čechů’, in Tomáš Knoz and Jan Dvořák, eds., Šlechta v proměnách věků (Brno, 2011), pp. 17–37.

80  Jana Janišová and Dalibor Janiš

The basic privileges of these “seniors of the country” (seniores terre) included liberal election of the sovereign. Aristocratic support was at the same time a basic prerequisite for powerful government. The disputes between the individual members of the Přemyslid family, whose secondary branches governed Moravia, led in the eleventh and twelfth centuries to frequent struggles for the throne. This gave space to considerable influence of the nobility who could repeatedly exercise their voting rights. The nobility, however, at the same time respected the “hereditary” claim of the Přemyslid dynasty for the Czech throne and thus the elected sovereigns were in fact confined to this single family. This fact mainly followed from the ideological basis of power of the Přemyslid family in the Czech Lands. The basis of this was the legend on the inauguration of the legendary Přemysl the Plowman on the sovereign throne, the primeval “constitution” of the Czech state. This myth established the first social order connected with the reign of a duke to whom all Czechs were subordinated – according to the Biblical model. A significant aspect of this is that Přemysl became duke by decision of the “Bohemians” (Bohemi, i.e. Czechs). The notion of the “Bohemians”, originally related to the whole free population, narrowed down in the course of time to a small privileged social group of the aristocrats, i.e. the emerging nobility. Only these “Bohemians” were entitled to elect the king.4 The disputes between the Přemyslid family members opened the door to the intervention of Roman kings, or emperors of the Holy Roman Empire. These interventions were supported by the existence of the feudal relations between the Bohemian kings and the Roman emperors. This feudal relation was established in the early eleventh century and performed alternately a smaller or bigger role in different periods of history of the Mediaeval Czech state in the relationships between the Czech Lands and the Roman Empire. This theme was repeatedly addressed by the individual generations of Czech as well as German historians of the nineteenth and twentieth centuries, often in connection with Czech-German relation and sharp nationalism on both sides.5 In short, the personal feudal relation between the Bohemian king and the Roman emperor reflected the involvement of the Bohemian dukes in the imperial politics and structures of imperial power. However, the feudal relation between the Czech Lands and the empire was not fixed in the Middle Ages and therefore did not represent an established constitutional relation. The relation on the other hand very dynamically reflected power constellations and interests of particular Bohemian kings and Roman emperors. This was not a unique thing, though; the feudal institute was applied by the Roman emperors in all countries of Central Europe.6

  4 Josef Žemlička, Počátky Čech královských 1198–1253. Proměna státu a společnosti (Praha, 2002), pp. 33–40; Antonín, České země, pp. 83–9.    5 On this issue see the extensive monograph by Alexander Begert, Böhmen, die böhmische Kur und das Reich vom Hochmittelalter bis zum Ende des Alten Reiches. Studien zur Kurwürde und zur staatsrechtlichen Stellung Böhmens (Husum, 2003).   6 Žemlička, Počátky, pp. 591–600.

King, estates and the Czech Crown  81

And yet the Czech Lands were different from the other German feudal princedoms in many aspects. The Czech Lands formed a compact territory under hereditary reign of the Přemyslid family who held all sovereign rights in the country. On the other hand, the emperor held no jurisdiction in the Bohemian territory and possessed no assets here and so he did not visit the country when travelling across his empire. A stronger claim was represented by the investiture of the local bishops by the emperors, but even this authorisation was rather formal, for the sovereigns of the Holy Roman Empire only confirmed the proposed candidates for the episcopal throne. Bohemian kings intervened in imperial politics when needed – as allies or opponents to the emperors, as participants in their expeditions to Rome for coronations or as participants to the imperial court assemblies. The emperors, mainly in the twelfth century, also tried to intervene in elections of Bohemian dukes, which was strictly rejected by the Czech party. The election right belonged to the Bohemian nobility without exceptions and the emperor could only confirm the election – in other words had to respect it.7 Voting right of Bohemian aristocracy also played a role in relation to the origin of the royal title of Bohemian duke. Emperor Henry IV granted the royal title in 1085 to Bohemian Duke Vratislav II (1061–1092), but the rise only applied to him personally and the title thus was not hereditary. In 1158 Friedrich Barbarossa raised to the king the status of Vratislav’s grandson Vladislaus II (1140–1172). According to the wording of the festal privilege of 18 January of the same year Vladislaus and his offspring were allowed to wear a headband (circulus) on the same festive occasions when the emperor wore the crown.8 Neither of the two Bohemian kings, however, asserted their title as hereditary. The greatest obstacle to this was the negative attitude of the Bohemian nobility. The hereditary royal title in principle excluded the earlier tradition of princely election which every member of the Přemyslid family ascending to the throne had to undergo. The loss of voting right of the Bohemian nobles would deprive them of their principal right to affect succession. King Vladislaus II (I) abdicated in 1172 and left the throne to his son Friedrich. This step, however, elicited principal resentment of the Bohemian aristocracy as it neglected their voting right absolutely. It also elicited a negative attitude of Emperor Barbarosa, who claimed his right to intervene with heredity of the Czech royal title. In 1173 the Emperor decided that Vladislaus II had not respected the voting right of

   7 Message of Bohemian Prince Soběslav I to Roman King Lothar III.: Discretionem tuam, bone imperator, scire convenit, quod electio ducis Boemiae, sicut ab antecessoribus nostris accepimus, nunquam in imperatoris semper autem in Boemiae principum constitit arbitrio, in tua vero potestate electionis sola confirmatio. Josef Emler, ed., Fontes rerum bohemicarum, II. Cosmae Chronicon Boemorum cum continuatoribus (Praha, 1874), p. 255; Žemlička, Počátky, pp. 598–9; Antonín, České země, pp. 80–3.    8 Václav Hrubý, ed., Archivum Coronae regni Bohemiae (= ACB), I: 1086–1346 (Pragae, 1935), pp. 4–6, n. 2.

82  Jana Janišová and Dalibor Janiš

Bohemian nobility and that is why he and his son Friedrich were not entitled for the Bohemian throne any longer.9 The royal crown was finally obtained for his family by Friedrich’s step brother Přemysl Otokar I (†1230). He made use of the struggle for the throne between Philip of Swabia and Otto IV of Brunswick. Přemysl was acknowledged Bohemian king by both rivals (coronation 1198, 1203). In 1212 he obtained from the new Roman Emperor Friedrich II of Sicily the significant privilege traditionally called Gold Bull of Sicily. This charter for the first time explicitly stipulated the relationships between the Czech Lands and the Holy Roman Empire. The Emperor confirmed heredity of the Bohemian royal title with the reservation that the Bohemian king was to be liberally elected in the Kingdom of Bohemia. The elected king was then to take over the feudal insignia from the emperor. The privilege confirmed indivisibility and boundaries of the Czech state. The Bohemian kings also obtained the right to investiture of domestic bishops. The charter also mentions participation of Bohemian kings in Roman assemblies and coronation rides to Rome.10 Although the Gold Bull did not play any significant role in later political practice of the Czech state and virtually stayed neglected, it nevertheless finally established heredity of the Czech royal title.11 In 1216 King Přemysl Otokar I asserted election of his son Wenceslas King of Bohemia in front of the assembly of “Bohemians”. This step was further confirmed by a special charter issued by Friedrich of Sicily.12 However, the Bohemian kings were further bound to the Holy Roman Empire by other significant ties not explicitly mentioned in the Gold Bull of Sicily. Bohemian kings held the office of the imperial Cup-Bearer at the Roman court from the twelfth century on at the latest. Přemysl Otokar I, whose involvement in the imperial politics was accomplished by obtaining the Gold Bull of Sicily, was also one of the electors of the Roman king at the turn of the twelfth and thirteenth centuries. This post was held by Bohemian kings in the following period and in the latter half of the thirteenth century they became members of the Collegium of seven exclusive electors, in 1298 entitled Kurfürsten. The office of hereditary imperial Cup-Bearer and the right to elect Roman king were confirmed to the Bohemian

  9 Martin Wihoda, ‘První česká království’, in Martin Wihoda and Demeter Malaťák, eds., Stát, státnost a rituály přemyslovského věku. Problémy, názory, otázky (Brno, 2006), pp. 67–92; Demeter Malaťák, ‘Korunovace Vratislava II.’, Časopis Matice moravské, 121 (2002), pp. 267–285; Jiří Kejř, ‘Korunovace krále Vladislava II.’, Český časopis historický, 88 (1990), pp. 641–659.   10  ACB, I, pp. 6–8, n. 3.  11  On the Gold Bull of Sicily Martin Wihoda, Die Sizilischen Goldenen Bullen von 1212. Kaiser Friedrichs II. Privilegien für die Přemysliden im Erinnerungsdiskurs (Wien – Köln – Weimar, 2012); Žemlička, Počátky, pp. 103–11; Vratislav Vaníček, Velké dějiny zemí Koruny české, Vol. II: 1197–1250 (Praha – Litomyšl, 2000), pp. 98–109; Karel Hruza, ‘Die drei ‘Sizilischen Goldenen Bullen’ Friedrichs II. von 1212 für die Přemysliden. Zu einen neuen Buch, diplomatischen Fragen und einer ‘Historikerdebatte’ in der tschechischen Forschung’, Archiv für Diplomatik, Schriftgeschichte, Siegel- und Wappenkunde, 53 (2007), pp. 213–49.  12 ACB, I, pp. 12–13, n. 6.

King, estates and the Czech Crown  83

King Wenceslas II in 1289 and again in 1290 by King Rudolf of Habsburg through a special privilege.13 In 1348 these privileges were also confirmed by the Roman and at the same time Bohemian King Charles IV.14 The position and composition of the body of the Kurfürsten (including the role of the Bohemian king) were confirmed by the Gold Bull of Emperor Charles IV of 1356.15

Land community and origin of liberties of the Estates After the extinction of the Přemyslid family in 1306 the question of the election of the Bohemian king opened again. The inauguration of the Luxembourg dynasty in 1310 represented one of the imaginary milestones in the history of the Czech state in the high Middle Ages. When asserting and fixing their rule the Luxembourg family had to respect the existing power, political and legal structures created in the Czech state by the last Přemyslid kings. In the course of the thirteenth century two countries were constituted within the Czech state – the Kingdom of Bohemia and the Moravian Margraviate – each with its own provincial law (ius terre), Provincial Court (iudicium terre) and other Land offices.16 The wording of the above-mentioned charters already suggests a visible change in the approach to the whole Přemyslid empire – instead of terra Bohemia the charters rather use the term regnum Bohemiae, foreshadowing the later Luxembourg Corona regni Bohemiae. The terrae were represented by the emerging regional nobility, which together with the king formed and represented the kingdom – regnum. The “regnum” then included all territories where the sovereign exercised his unquestionable supreme power as Bohemian king.17 The land supremacy and autonomy in Bohemia and Moravia was mainly exercised by the nobility – the land aristocratic community (universitas nobilium terre).18 Both aristocratic communities were finally formed at the turn of the fourteenth

 13 Žemlička, Počátky, pp. 600–7; ACB, I, pp. 58–9, n. 34; 65–6, n. 40.   14  ACB, II: 1346–1355 (Pragae, 1928), pp. 51–4, nn. 54–5.   15 Karl Zeumer, ed., Die Goldene Bulle Kaiser Karls IV., 2. Teil: Text der Goldenen Bulle und Urkunden zu ihrer Geschichte und Erläuterung (Weimar, 1908), pp. 5–48.   16 Vratislav Vaníček, Velké dějiny zemí Koruny české, III: 1250–1310 (Praha – Litomyšl, 2002), pp. 211–29.   17 Joachim Prochno,‘Terra Bohemiae, Regnum Bohemiae, Corona Bohemiae’, in Manfred Hellmann, ed., Corona regni. Studien über die Krone als Symbol des Staates im späteren Mittelalter (Weimar, 1961), pp. 198–224; Lenka Bobková, ‘‘Provincia, terra, marchionatus.’ Zur Bezeichnung der Kronländer im Mittelalter’, in Lenka Bobková and Jana Fantysová-Matějková, eds., Terra – Ducatus – Marchionatus – Regio. Die Bildung und Entwicklung der Regionen im Rahmen der Krone des Königreichs Böhmen (Praha, 2013), pp. 86–108.   18 It needs to be noted that the nobility and/or the noble families belonging to both land communities were closely connected by marriages and property. Some of the families were then involved in both countries. Regarding new findings about the history of the nobility in the Czech Lands in thirteenth and fourteenth centuries see Libor Jan, ‘Česká a moravská šlechta ve 13. a 14. století – otázky zrodu a kontinuity’, in Tomáš Knoz and Jan Dvořák, eds., Šlechta v proměnách věků (Brno, 2011), pp. 38–62.

84  Jana Janišová and Dalibor Janiš

century and acted independently in the period of anarchy and struggle for the Bohemian throne after the death of the last member of the Přemyslid family. The absence of royal power did not bring about any power decline in the state as the role of king, the personification of the state power, was taken over by the nobility. The nobility acted as the political ‘nation’ and this led to development of dual state power in the country.19 These self-confident aristocratic communities as political representations of both countries received significant privileges in 1310 and 1311 from John the Blind of Luxembourg after his ascension to the Bohemian throne. These so called ‘inauguration diplomas’, whose wording was virtually identical for both countries, became the foundation stone of land and estate freedoms, later repeatedly confirmed by Bohemian sovereigns. The privilege is considered the Bohemian Magna Carta due to its significance.20 The privilege for the Moravian nobility of 18 June 1311 has survived in its original wording. The charter for the Bohemian nobility of December 1310 is only known from its confirmation by King Charles IV of 1348 (survived under the title Confirmatio jurium baronum regni Bohemiae in the collection of charter forms) and indirectly also from the wording of the Moravian charter. Another survived version is the original proposal of the privilege compiled by the Czech aristocrats headed by the Prague Bishop John of Dražice, whose content was reduced significantly in negotiations with John of Luxembourg, though.21 Both privileges, for Bohemia as well as for Moravia, applied to omnes regni nostri Boemie et Moravie principes ecclesiasticos et seculares, barones, nobiles, prelatos, clericos et universos nostre dicioni subjecto.22 The addresses of both charters thus were the same and the king did not distinguish between the two land communities. The reason was that the king uses the wider term – the Kingdom of Bohemia

  19 Robert Antonín, ‘Formování moravské zemské obce a souboj o český trůn v letech 1306–1310’, in Hana Ambrožová et al., eds., Historik na Moravě. Profesoru Jiřímu Malířovi, předsedovi Matice moravské a vedoucímu Historického ústavu FF MU, věnují jeho kolegové, přátelé a žáci k šedesátinám (Brno, 2009), pp. 221–35; Josef Válka, ‘Zemská obec a vrchol dějin Moravy’, in Morava v českém státě včera, dnes a zítra (Brno, 1992), pp. 17–24; František Kavka, ‘Český stát jako velmoc’, in Jaroslav Pánek et al., Idea českého státu v proměnách staletí (Praha, 2008), pp. 50–51.   20 For analysis of privileges see Václav Chaloupecký, ‘Privilegium krále Jana Čechům a Moravanům z  roku 1310 (Pokus o rozbor po stránce diplomatické)’, Český časopis historický, 15 (1909), pp. 52–9; idem, ‘O privilegiu vydaném Čechům a Moravanům při nastoupení krále Jana Lucemburského’, Český časopis historický, 16 (1910), pp. 407–11; idem, ‘Inaugurační diplomy krále Jana z  roku 1310 a 1311’, Český časopis historický, 50 (1947–1949), pp. 69–102; Václav Hrubý, ‘Inaugurační diplom krále Jana Lucemburského z  r. 1310’, Český časopis historický, 16 (1910), pp. 298–305; idem, Über das Privilegium Königs Johann vom 18. Juni 1311 für Mähren. Ein diplomatischer Beitrag zum Nachweis seiner Echtheit (Prag, 1912); Rudolf Koss, Zur Kritik der ältesten böhmischmährischen Landesprivilegien (Prag, 1910); Josef Šusta, Počátky Lucemburské 1308–1320. Dvě knihy českých dějin. 2 (Praha, 1935), pp. 128–32; idem, Král cizinec. České dějiny II/2 (Praha, 1939), pp. 130–36, 153–62; Jiří Spěváček, Jan Lucemburský a jeho doba 1296–1346 (Praha, 1994), pp. 150–58; Zdeněk Žalud, ‘Jan Lucemburský a česká šlechta’, in František Šmahel and Lenka Bobková, eds., et al., Lucemburkové. Česká koruna uprostřed Evropy (Praha, 2012), pp. 47–53.   21 The texts were published as appendices to the work by Koss, Zur Kritik, pp. 87–96, nn. 1–3.  22 Ibidem, p. 93, n. 2; p. 95, n. 3.

King, estates and the Czech Crown  85

(regnum) – connecting both territories, in the charter. The addresses of both privileges did not only include the nobility but also the clergy for high clergy included members of major domestic noble families. In addition, some members of clergy (bishops, abbots) were actively involved in political actions connected with the election of the new king in the period after the death of the last member of the Přemyslid dynasty. Strangely enough, the wording of the privileges does not mention royal towns which played a significant role in negotiations about the new king (this mainly applies to the Old Town of Prague and Kutná Hora). The reason was certainly the fact that the royal towns were directly subordinate to the king (as parts of the royal chamber), not forming any unified “estate” at that period (the Estate of Boroughs was only formed at the end of the fifteenth century) and separated from the nobility and the clergy by social and language differences (the patriciate of the royal towns was German-speaking).23 The survived draft privilege as well as its final wording (safely documented with the original copy of 1311) allows for comparison of the broad claims of the nobility and the clergy and on the other hand the ideas of King John of Luxembourg and his advisors about the scope and content of the liberties. The final version of the privilege confirmed all rights and customs obtained by the nobility from Jan’s predecessors on the royal throne.24 The draft privilege suggests which older rights and customs were hidden behind this general affirmative formulation. They mainly included assurance of Estates and all assets and the sovereign was also to respect the authority of the Provincial Court. It was the Provincial Court of Justice (iudicium terre), existing independently in both countries, in Bohemia and in Moravia, which represented the key land institution where the nobility performed a significant role. High land offices were reserved for the nobility, the most significant of them being the offices related to the activities of the Provincial Court of Justice – High Chamberlain of the Land (summus camerarius terre) and High Judge of the Provincial Court (summus iudex terre). Provincial Courts of Justice in both countries represented a collective body since the early Middle Ages, when decisions were made by a corps of assessors from major noble families.25 The Provincial Court of Justice was an important element of continuity on the institutional level, both in relation to the provincial law and towards the aristocratic community and the ruler. The Court not only addressed controversies but also created the law itself (in the form of precedents). The dual power of the nobility and the king was also reflected in

 23 Lenka Bobková, Velké dějiny zemí Koruny české, Vol. IVa: 1310–1402 (Praha – Litomyšl, 2003), pp. 11–31; Jaroslav Mezník, Lucemburská Morava 1310–1423 (Praha, 1999), pp. 16–18; Chaloupecký, ‘Inaugurační diplomy’, p. 101.   24 Koss, Zur Kritik, p. 93: [ . . . ] omnia eorum jura, consuetudines, que et quas a nostris habuerunt et habere consueverunt predecessoribus, rata habere volumus et tenere et eadem inconvulsa conservare, nec non quod omnia eorum privilegia, que a nostris habent predecessoribus, volumus nostris confirmare sigillis.   25 For new information about the establishment of provincial courts in Bohemia and Moravia see Libor Jan, Vznik zemského soudu a správa středověké Moravy (Brno, 2000); Dalibor Janiš, Zemské soudnictví na Moravě vrcholného středověku (Brno, 2013); Libor Jan, ‘Zrod zemského soudu v Čechách’, in Antoni Barciak, ed., Kultura prawna w Europie Środkowej (Katowice, 2006), pp. 227–39.

86  Jana Janišová and Dalibor Janiš

the Provincial Court of Justice, which the sovereign could preside either in person or by proxy (a land official).26 Further rights and liberties confirmed by the privileges of King John were explicitly mentioned in the texts of the charters. They may be divided into four basic groups. The first was related to the army duty. The nobility was obliged to participate in armed defence of the kingdom but not in the royal military expeditions abroad without its consent. In the case of consent of the nobility to take part in a foreign military expedition the king bore all costs. This title was defined in the draft privilege as an ancient right of the nobility while the final text defines it as a special favour of the king. The second requirement of the nobility concerned tax duty. According to the draft the king was only entitled to collect the so-called general national duty without noble consent in the case of his coronation or as dowry for his unmarried daughters. The subject of taxation could only include the servile land, the rented land, mills and the villains – craftsmen. Exempted from taxation was to be the land belonging to the land-owning nobles and noble servants and officials. However, the king and his advisors did not accept these requirements. The privilege did include the provision about the required consent of the nobility with tax collection, but the scope of the taxable assets was wider. Noble consent was not required for tax collection on the occasion of coronation of the king or his son as the successor to the throne, in the case of the royal wedding (as dowry for the queen) and weddings of royal daughters and sons. The amount of the tax was stipulated in the simple manner as not exceeding 16 groschen per field (hide) without detailed specification of the land type. This provision, however, was explicitly included in the privilege as special favour of the king (not as an ancient right confirming existing practice), which already in 1330s allowed John of Luxembourg to collect tax in the amount of 28 groschen per field.27 The third group concerned property rights. The nobility raised a requirement for adaptation of the king’s right to escheat. The aristocrats required hereditary rights to be extended to daughters and further the right of free handling with assets in the form of liberal testament without special consent of the king. The nobility considered these rights ancient, later cancelled, rights and requested their renewal. The king again met the requirements of the nobility only partly and as his special favour. The hereditary right was extended to daughters and assets without heirs were to be inherited by the closest relatives up to the fourth level of kinship. However, testaments still required the king’s consent.28 The fourth group of John’s privileges concerned offices. The original aristocratic draft conceived this provision very widely. The king was to be bound to reserve all land administrative and

  26 Regarding the search for justice at the provincial courts see Dalibor Janiš, ‘Nalézání práva a zemské soudnictví v českých zemích’, in Libor Jan and Dalibor Janiš et al., Ad iustitiam et bonum commune. Proměny zemského práva v českých zemích ve středověku a raném novověku (Brno, 2010), pp. 23–46.  27 Koss, Zur Kritik, p. 93; Chaloupecký, ‘Inaugurační diplomy’, pp. 94–6; Spěváček, Jan Lucemburský, pp. 154–5; Bobková, Velké dějiny, IVa, pp. 27–8.  28 Koss, Zur Kritik, p. 93; Chaloupecký, ‘Inaugurační diplomy’, pp. 96–7; Spěváček, Jan Lucemburský, p. 155.

King, estates and the Czech Crown  87

royal court related offices for domestic officials, excluding foreigners. Foreigners were not to hold any estate in the country, including castles and offices generating income. The privilege was eventually confined to a brief provision by which King John promised to only inaugurate Bohemians and Moravians, i.e. members of the locally resident noble families, to income-generating offices.29 The content of the draft and the final privilege clearly points to the diplomatic negotiations between the nobility and King John. The older as well as newer literature repeatedly reminds that the privileges of 1310 and 1311 basically only confirmed the rights claimed by the Bohemian and the Moravian nobility at that time. The documentary form, however, meant clear formulation of these rights in the binding written form and definitions of certain basic relations between the sovereign and the nobility, or the land community.30 The provisions concerning tax collection and offices are further repeated in several other documents for the Bohemian and Moravian nobility and issued in connection with tax collection (1323, 1327, 1331, 1339).31 The son of King John of Luxembourg, Charles IV, Roman king and recently crowned heir of the Kingdom of Bohemia, returned from a triumphal journey to the imperial towns to the Czech Lands in mid February 1348. Then he devoted the spring and the summer to intense statesman activities and building of autonomous power of the Czech state.32 On 7 April 1348 he issued a series of fourteen festal charters (some of them in a second version with the Gold Bull), by which Charles tried to fix and anchor the Central European state called Corona regni Bohemiae.33 Eleven of the charters were issued by Charles as Roman king and confirmed older privileges granted to Bohemian kings by Roman kings and emperors in the years 1158–1298. It needs to be emphasized that these charters were not mere confirmations. Charles attached to the confirmation of the Gold Bull of Sicily of 1212 important provisions extending the hereditary rights to the throne to royal daughters and added an article

 29 Koss, Zur Kritik, p. 93; Chaloupecký, ‘Inaugurační diplomy’, pp. 98–9; Bobková, Velké dějiny, Vol. IVa, pp. 28–29.   30 For more on this see Antonín, ‘Formování’, p. 234; Mezník, Lucemburská Morava, pp. 17–18.  31 Paul Chlumecky and Josef Chytil, eds., Codex diplomaticus et epistolaris Moraviae, VI: 1307–1333 (Brünn, 1854), pp. 37–8, n. 49; p. 175, n. 234; pp. 250–51, n. 323; Josef Emler, ed., Regesta diplomatica nec non epistolaria Bohemiae et Moraviae,Vol. IV: 1333–1346 (Pragae, 1892), pp. 272–3, n. 693; Chaloupecký, ‘Inaugurační diplomy’, pp. 95.  32  František Kavka, Karel IV. Historie života velkého vladaře (Praha, 1998), pp. 129–39; Ferdinand Seibt, Karel IV. Císař v  Evropě (1346–1378) (Praha, 1999), pp. 154–84; Jiří Spěváček, Karel IV. Život a dílo (1316–1378) (Praha, 1980), pp. 206–10, 262–327; Josef Šusta, Karel IV. Za císařskou korunou 1346–1355. České dějiny II/4 (Praha, 1948), pp. 82–5.   33 ACRB, II, pp. 39–69, nn. 49–62. Regarding establishment of the Bohemian Crown Lands see Lenka Bobková, 7. 4. 1348. Ustavení Koruny království českého. Český stát Karla IV. (Praha, 2006); eadem, ‘Koruna království českého za vlády Lucemburků’, in František Šmahel and Lenka Bobková, eds., et  al., Lucemburkové. Česká koruna uprostřed Evropy (Praha, 2012), pp. 124–140; Joachim Bahlcke, ‘Corona, corpus, constitutio, confederatio. Verfassungsideen und Politikmodelle im spätmittelalterlich-frühneuzeitlichen Böhmen’ Mitteilungen des Instituts für österreichische Geschichtsforschung, 113 (2005), pp. 90–107.

88  Jana Janišová and Dalibor Janiš

on potential election of Bohemian king. Similarly, the other literarily quoted texts of the confirmed privileges included various amendments and explanations.34 In the context of these eleven charters the king also issued a general privilege by which he confirmed ‘all privileges, rights and liberties’ obtained by the Bohemian kings from Roman kings and emperors. The privilege thus renewed all of the abovementioned privileges as a whole, at the same time serving as a kind of assurance in case of the existence of other rights and privileges about which no written documents were available in the royal archives or which were neglected by mistake.35 The privileged rights and position of the Bohemian king and inhabitants of his kingdom were included in Chapter Eight of the Gold Bull (Bulla aurea) by Charles IV of 1356, considered the first legal code of the Holy Roman Empire. The Bull defined the basic rules of jurisdiction concerning the whole population of the Kingdom of Bohemia who were not to be judged outside the frontiers of the kingdom in any legal cases whatsoever. Exclusive jurisdiction of domestic courts, especially the Provincial Court of Justice, was emphasized by the provision that no appeal against the decisions of the courts of the Kingdom of Bohemia may be filed with any foreign court. This confirmed complex and exclusive sovereignty of the courts of justice of the Kingdom (privilegia de non evocando et appellando).36 The question of the relationship between the Bohemian king and the local nobility was again opened in the period of reign of Charles’ son Wenceslas IV (1378– 1419). The king had serious conflicts with the noble opposition. One of the main reasons for the conflicts was his latent indifference in relation to government of the Kingdom of Bohemia and the Roman Empire, which resulted in a struggle within the Luxembourg dynasty itself. The grouping of the major noble families of the country headed by his brother and Hungarian King Sigmund of Luxembourg and Moravian Margrave Jobst of Luxembourg, formed in the years 1393–1394, did not try to dethrone Wenceslas IV at this stage. The lords followed their political interests by defending the ‘regional good’ with reference to the authority of provincial law, or the Provincial Court of Justice.37 Some time later the unified nobility even arrested King Wenceslas IV for a couple of months. At the turn of 1394 and 1395 the unified nobility, headed by Jobst of Luxembourg, reinfored their unity by further contracts. In May 1395 King Wenceslas IV was forced to confirm a series of provisions newly codifying relations between the king of Bohemia and the local

 34 Kavka, Karel IV., p. 134; Spěváček, Karel IV., pp. 268–70.   35  ACRB II, pp. 39–41, n. 49.  36 Zeumer, ed., Die Goldene Bulle, pp. 22–24; Ulrich Eisenhardt, ‘Die Rechtswirkungen der in Goldenen Bulle genannten privilegia de non evocando et appellando’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung, 86 (1969), pp. 75–96.   37 Regarding the details of the progress of the conflict see František M. Bartoš, České dějiny II/6. Čechy v době Husově 1378–1415 (Praha, 1947), pp. 113–230; Jiří Spěváček, Václav IV. 1361–1419. K předpokladům husitské revoluce (Praha, 1986), pp. 230–58; Mezník, Lucemburská Morava, pp. 258–66; Václav Štěpán, Moravský markrabě Jošt (1354–1411) (Brno, 2002), pp. 343–96; Robert Novotný, ‘Spor Václava IV. s panstvem’, in František Šmahel and Lenka Bobková, eds., et al., Lucemburkové. Česká koruna uprostřed Evropy (Praha, 2012), pp. 664–74.

King, estates and the Czech Crown  89

nobility. This significant document formulated claims of the aristocracy for coreigning the kingdom and some reservations to the way of governance by King Wenceslas. This document was further extended by the charter of April 1396, concerning land offices and the royal council.38 The documents clearly show that higher nobility firmly asserted their position and interests. Typically, the individual provisions emphasize continuity with earlier development. It is beyond any doubt that in this case the Czech nobles virtually applied their right to resistance against the king, which was not codified anywhere in the local legislation and privileges. On the formal level the nobility supported their claims by claiming that they were in the public interest, expressed by the local term ‘common good’ (bonum commune), in relation to valid provincial law. These were values earlier mainly defended and represented by the sovereign. But as the estate system developed this principle began to be understood as superimposed to the king, who, together with the Estates, was bound to support the ‘common good’. Thus, the Estates began being actively involved the land administration and in the case of violation of these rules by the king virtually claimed to be entitled to apply a right to resistance and force the king to respect the rights and liberties of the country.39 King Wenceslas IV clashed with the high nobility again in the first years of the fifteenth century and this conflict further depended the disputes between members of the Luxembourg dynasty. The power of the king was significantly weakened in the Kingdom of Bohemia.40 After Wenceslas’ death in 1419, when his brother and heir of the throne, Sigmund of Luxembourg, wanted to take over the reign in the country, new power conditions were already established in the Czech Lands in connection with the outbreak of the Hussite revolution. Sigmund’s hereditary right to the throne was not originally questioned by the Estates community but the Hussite nobility and burghers submitted to him a list of requirements conditioning his inauguration. The requirements concerned administration of the country and operation of the provincial law. In the first place there were strong religious requirements which Sigmund did not want to and could not accept without becoming an opponent to the Council of Basel and the pope, which he did not intend to become.41

  38 František Palacký, ed., Archiv český čili staré písemné památky české i moravské (= AČ), I (Praha, 1840), pp. 56–8, n. 5; Vincenc Brandl, ed., Codex diplomaticus et epistolaris Moraviae, XII: 1391–1399 (Brünn, 1890), pp. 286–8, n. 309. To the content see Spěváček, Václav IV., pp. 246–8, 256–7; Novotný, ‘Spor’, pp. 671–2.  39 To the term ‘common good’ see Winfried Eberhard, ‘“Bonum commune” v konkurenci mezi monarchickou vládou a stavovskou společností’, Český časopis historický, 102 (2004), s. 449–474. The development to the estates monarchy recently outlined by František Šmahel, Husitské Čechy. Struktury, procesy, ideje (Praha, 2001), pp. 475–94.  40 Spěváček, Václav IV., pp. 329–65; Bartoš, České dějiny II/6, pp. 181–215.   41 František Palacký, ed., AČ, III (Praha, 1844), pp. 206–8, n. 13; Petr Čornej, Velké dějiny zemí Koruny české, Vol. V: 1402–1437 (Praha – Litomyšl, 2000), pp. 215–8; František Kavka, Poslední Lucemburk na českém trůně. Králem uprostřed revoluce (Praha, 1998), pp. 28–31; Mezník, Lucemburská Morava, pp. 416–7; Petr Čornej, ‘Zikmundův boj o otcovu korunu’, in František Šmahel and Lenka Bobková, eds., et al., Lucemburkové. Česká koruna uprostřed Evropy (Praha, 2012), pp. 732–7.

90  Jana Janišová and Dalibor Janiš

Sigmund of Luxembourg was accepted as king in the Margraviate of Moravia towards the end of 1419, but this inauguration was later rejected by the Hussite party with reference to the earlier practice according to which the King of Bohemia was to be accepted and crowned in Prague first. Since February 1420 Sigmund used the title of King of Bohemia and in the context of the crusade against the Hussites in Bohemia had himself crowned Bohemian king in July of the same year.42 But already in April 1420 leading representatives of the Czech estates community issued a manifesto by which they refused obedience to Sigmund as Bohemian king. The document stated that he had not been elected king by the Bohemian aristocrats and had not been crowned and was considered an enemy to the Kingdom (this fact was documented by nine points). Sigmond’s hereditary rights to the Crown were not taken into account and the Bohemian throne was to be granted solely by election.43 The Land Diet held in June 1421 in the Bohemian royal town of Čáslav adopted a long resolution whose main point was refusal of Sigmund of Luxembourg as Bohemian sovereign. Fourteen articles concerned Sigmund’s hard proceeding against Hussites and violations of liberties of the Estates and the Kingdom. The Estates required remedy from Sigmund, for according to the Provincial Diet resolution there was a chance that the decision about acceptance of Sigmund as Bohemian king might be changed.44 The Provincial Diet in Čáslav was also attended by representatives of Hussite nobility from Moravia, who refused to revoke their obedience to Sigmund immediately after having duly accepted him as the sovereign of their country (Margrave of Moravia) in late 1419. In June 1421 at the Provincial Diet in Brno, the Moravian nobility refused to revoke their obedience to Sigmund and thus detached themselves from the Bohemian Utraquist nobility.45 The way to the Bohemian throne only opened to Sigmund of Luxembourg at the end of the Hussite revolution. In March 1435 at the Provincial Diet held in Prague the Bohemian Estates stipulated conditions for his inauguration. Each of the Estates had their own requirements. The requirements formulated by the Estate of Boroughs even included a provision stipulating the optional right of resistance against the king and his officials in the case of their violation of the require religious rules.46 Sigmund of Luxembourg in principle accepted these conditions in his ‘Great Privilege of Freedoms’, issued on 20 July 1436 in the Moravian royal town

 42 Kavka, Poslední Lucemburk, pp. 38–42, 71–2.  43 AČ III, pp. 210–12, n. 16; Kavka, Poslední Lucemburk, pp. 49–52.  44 AČ III, pp. 226–230, n. 24; pp. 230–2, n. 25; Čornej, Velké dějiny, V, pp. 296–300; František Šmahel, Husitská revoluce. Vol. 3: Kronika válečných let (Praha, 1996), pp. 77–90; Kavka, Poslední Lucemburk, pp. 91–4; Ivan Hlaváček, ‘Husitské sněmy’, Sborník historický, 4 (1956), pp. 78–84; Jiří Kejř, ‘České sněmy husitské doby’, in Václav Vaněček, ed., Česká národní rada, sněm českého lidu (Praha, 1970), pp. 92–102.  45  Čornej, Velké dějiny,V, pp. 299, 458–463; Mezník, Lucemburská Morava, pp. 419; Josef Válka, Středověká Morava (Brno, 1991), pp. 120–24.   46 AČ III, pp. 419–421, n. 10; František Palacký, ed., Urkundliche Beiträge zur Geschichte des Hussitenkrieges in den Jahren 1419–1436, V   ol. II (Prag, 1873), pp. 440–1, n. 940; Šmahel, Husitská revoluce, 3, p. 305.

King, estates and the Czech Crown  91

of Jihlava. The content in fact represented electoral capitulation47 conditioning his inauguration as Bohemian king by the Bohemian Estates. The individual provisions mainly concerned compliance with the recently executed Compactata of Basel, which became the legal basis of religious conditions in the Czech Lands (legalisation of the Utraquist religion in the country).48 The document only marginally tackled political rights and Sigmund generally confirmed all earlier estate and provincial privileges.49 On 14 August 1436 he was inaugurated as Bohemian king and representatives of the Estates took a vow of loyalty to him. He was not crowned again for the Utraquist Estates acknowledged his coronation of July 1420.50 The proposed electoral capitulation for Sigmund’s successor, Albrecht of Habsburg, of 1437 repeated the basic provisions of Sigmund’s Great Privilege. Political rights of the Estates are formulated generally with the dual power of the king and the Estates mainly reflected in the concluding articles. According to their wording all matters concerning the crown were to be discussed by King Albrecht with the Provincial Diet.51 Basically identical formulations are also included in the electoral capitulation submitted to his son Ladislaus the Posthumous in 1453 before his coronation in Prague.52 Earlier electoral capitulations are also referred to in the confirmation of provincial liberties and privileges issued on 15 May 1461 by King Georg (Jiří) of Poděbrady. The text of the privilege is relatively brief and mainly focuses on confirmation of the Compactata, with the political rights of the Estates only being confirmed as a whole without any further details.53 For the whole period of his reign King Georg of Poděbrady had to face strong opposition of Catholic nobility, which formed a union against the king in 1465. The aristocrats reproached the sovereign for violation of liberties of the Estates and required participation in the rule of the Kingdom.54 In reaction to the election of the Hungarian King Matthias Corvinus as Bohemian counter-king King Georg asserted succession of Vladislaus of Jagiellon, who was elected in 1471, subsequently confirming extensive electoral capitulation. In addition to confirmation of earlier provincial and estate freedoms the initial articles of the capitulation

  47 On electoral capitulations in the countries of Central Europe see Rudolf Rauscher, Volební kapitulace a korunovační reversy panovníků ve státech střední Evropy (Bratislava, 1925).  48 Regarding the Compactata of Basel see František Šmahel, Basilejská kompaktáta. Příběh deseti listin (Praha, 2011).   49 AČ III, pp. 446–9, n. 21; Kavka, Poslední Lucemburk, pp. 202–3; Šmahel, Husitská revoluce, 3, pp. 311–13.  50 Kavka, Poslední Lucemburk, pp. 207–8.   51 AČ III, p. 459–460, n. 30; Rudolf Urbánek, České dějiny III/1. Věk poděbradský I. (Praha, 1915), pp. 271–3.   52 František Palacký, ed., AČ IV (Praha, 1846), pp. 413–15, n. 1; pp. 416–19, n. 2; Rudolf Urbánek, České dějiny III/2.Věk poděbradský II. (Praha, 1918), pp. 683–6.  53  Jaromír Čelakovský, ed., Codex iuris municipalis regni Bohemiae, Vol. I: Privilegia měst pražských (Praha, 1886), pp. 731–2, n. 354a; Rudolf Urbánek, České dějiny III/3. Věk poděbradský III. (Praha, 1930), pp. 362–3.  54 Petr Čornej and Milena Bartlová, Velké dějiny zemí Koruny české, Vol. VI: 1437–1526 (Praha – Litomyšl, 2007), pp. 227–50; Josef Macek, Jiří z Poděbrad (Praha, 1967), pp. 128–169; Urbánek, České dějiny III/3, pp. 515–94; idem, Husitský král (Praha, 1926), pp. 122–56; Jaroslav Boubín, Česká “národní” monarchie. K domácím zdrojům a evropskému kontextu království Jiřího z Poděbrad (Praha, 1992), pp. 85–95.

92  Jana Janišová and Dalibor Janiš

emphasized liberal election of the king by the Estates and confirmation of the Compactata.55 The wording of this electoral capitulation is then briefly repeated in a similar document issued in the name of the future King Louis (Ludvík) in 1509 as well as in the electoral capitulation of Ferdinand I of Habsburg, who had it issued as a written document in the Latin (1526) and later in the Czech version (1528).56 While the reign of the Jagiellon kings was connected with reduction of the power of the sovereign, in the Czech Lands in addition multiplied by the fact that the king did not stay in the country for years, inauguration of the vigorous Ferdinand I considerably changed power structure in the Bohemian Crown Lands.57 The very discussion about the final wording of the electoral capitulation represented the first political clash between the new sovereign and the Estates.58 Latent political tension was created between the king and the Estates, culminating in the 1540s by the first uprising of the Estates.59 This uprising of the Estates in 1547 strongly affected the form of the Estate system in Bohemia (but not in Moravia). The immediate cause of the uprising was the king’s mandate of 12 January 1547 about mobilisation of the provincial army to be used by the king for a military campaign in the Empire. A polemic evolved between the Estates and the king about whether the mandate was announced in compliance with the Bohemian provincial law. Both parties appealed to the legislative formulations in the basic codification of the Bohemian provincial law, the Vladislaus Provincial Code of 1500.60 The king cited the article on assistance against hostile attacks of the country while the Estates referred to the article on conditions of

 55  Čornej and Bartlová, Velké dějiny, VI, pp. 250–72, 403–37; Macek, Jiří z Poděbrad, pp. 206–9; Urbánek, Husitský král, pp. 256–258; AČ IV, pp. 444–55, nn. 10–11; Josef Macek, Jagellonský věk v českých zemích (1471–1526). Vol. 1: Hospodářská základna a královská moc (Praha, 1992), pp. 180–262.  56 Zdeněk Veselý, ed., Dějiny českého státu v dokumentech, (Praha, 1994), pp. 142–3; Sněmy české od léta 1526 až po naši dobu (= SČ). I. 1526–1545 (Praha, 1877), pp. 38–48, n. 24; pp. 77, n. 34.  57  Jaroslav Pánek, ‘Regierungsstrategie und Regierungsformen Ferdinands I. in den böhmischen Ländern’, in Martina Fuchs et  al., eds., Kaiser Ferdinand I. Ein mitteleuropäischer Herrscher (Münster, 2005), pp. 323–37; idem, ‘Ferdinand I. – der Schöpfer des politischen Programms der österreichischen Habsburger?’, in Petr Maťa and Thomas Winkelbauer, eds., Die Habsburgermonarchie 1620 bis 1740. Leistungen und Grenzen des Absolutismusparadigmas (Stuttgart, 2006), pp. 63–72; Josef Válka, ‘Dialog krále se stavovskými obcemi o způsobu vládnutí. Ferdinand I. a počátky absolutismu I’, Časopis Matice moravské, 124 (2005), pp. 429–449.  58 Josef Janáček, České dějiny. Doba předbělohorská 1526–1547, I/1 (Praha, 1968), pp. 51–4.   59 Karel Tieftrunk, Odpor stavův českých proti Ferdinandovi I. léta 1547 (Praha, 1872); Jaroslav Pánek, Stavovská opozice a její zápas s Habsburky 1547–1577. K politické krizi feudální třídy v předbělohorském českém státě (Praha, 1982), pp. 18–34; Josef Janáček, České dějiny. Doba předbělohorská 1526–1547, I/2 (Praha, 1984), pp. 215–335;Winfried Eberhard, Monarchie und Widerstand. Zur ständischen Oppositionsbildung im Herrschaftssystem Ferdinands I. in Böhmen (München, 1985), pp. 410–501; Joachim Bahlcke, Regionalismus und Staatsintegration. Die Länder der Böhmischen Krone im ersten Jahrhundert der Habsburgerherrschaft (1526– 1619) (München, 1994), pp. 158–68; Petr Vorel, ed., Stavovský odboj roku 1547. První krize habsburské monarchie (Pardubice – Praha, 1999); idem, Velké dějiny zemí Koruny české, VII: 1526–1618 (Praha – Litomyšl, 2005), pp. 168–204; Josef Válka, ‘Konflikt české zemské obce s králem 1546–1547. Ferdinand I. a počátky absolutismu II’, Časopis Matice moravské, 125 (2006), pp. 33–48.   60  Regarding the Provincial Codes see below.

King, estates and the Czech Crown  93

military assistance of the Estates. Opposition developed against the king including not only the aristocracy but also the towns headed by Prague. The Estates regarded the royal mandate as a gross breach of their privileges and in February 1547 established a union of Estates, which required the king to summon the Bohemian Provincial Diet. Ferdinand refused the requirement of the Estates and the summoning of the Diet to Prague in March of the same year turned into a serious clash with the royal power.61 Although the Estate community was convinced about legitimacy of their claims following from the wording of the regional liberties, they at the same time realized that the legislative framework for enforcement of these rights and liberties and therefore resistance against the sovereign (ius resistendi) was virtually missing. For that reason a wider offensive for defence of Estates rights was required and correction of political condition of the country needed to be attempted. The Provincial Diet produced a remarkable document, considered one of the climaxes of the politics of the Bohemian Estates before 1620.62 The Estates formulated there all their objections against the governance of Ferdinand I, which contradicted Estates rights and liberties. At the same time the document formulated requirements for extension of the power of the Estates. All those provisions were exclusively based on political and legal framework for religious issues were to be addressed by a separate Provincial Diet. A key role of the provincial (land) institutions – the Provincial Court of Justice and the Provincial Diet – was acknowledged as the main forum for negotiations between the sovereign and the Estates. All substantial matters concerning the country and the Estates were to be subject to consent of the Provincial Diet. The Diet could be summoned, in urgent cases, even without consent of the king, and Estate bodies authorised to summon it were explicitly listed. One of the articles emphasized that the king of Bohemia was to take an oath to the Bohemian Estates only and to no-one else, especially not to the pope (with references to the earlier, negative policy of the popes against Bohemian King Georg in the latter half of the fifteenth century).63 Although a number of the articles are formulated as a political programme, with requirements addressed to the king and asked to be fulfilled, others are explicitly normative and may therefore be considered Diet resolutions in the proper sense of the word.64 Members of the union of Estates were aware of the fact that their position was illegal in many respects, despite the fact that they considered their proceeding

 61 SČ II, pp. 118–74, nn. 25–52.   62 Regarding the Estate system in the Czech Lands see Jaroslav Pánek, ‘Proměny stavovství v Čechách a na Moravě v 15. a v první polovině 16. století’, Folia Historica Bohemica, 4 (1982), pp. 179–217; idem, ‘Republikánské tendence ve stavovských programech doby předbělohorské’, Folia Historica Bohemica, 8 (1985), pp. 43–62; idem, ‘Politický systém předbělohorského českého státu’, Folia Historica Bohemica, 11 (1987), pp. 41–101;Vorel, Velké dějiny, pp. 88–110.   63 The text was published by Tieftrunk, Odpor, pp. 364–84.  64 Dalibor Janiš, ‘Stände versus Herrscher: Widerstandsrecht und Landrechte in den Böhmischen Ländern’, in Václav Bůžek, ed., Ein Bruderzwist im Hause Habsburg (1608–1611). Opera Historica 14 (České Budějovice, 2010), pp. 295–98.

94  Jana Janišová and Dalibor Janiš

as legitimate defence of estates liberties. An important fact was that the resistance was joined by representatives of all three Estates and in great numbers (for example about seventy per cent of the nobility).65 Military campaigns of the royal army led the Bohemian Estates to the decision to also mobilise the provincial army and thus the right to resistance was also applied on the military level.66 In April 1547 numerous representatives of the Estates met in Prague and King Ferdinand I in his message to the meeting clearly expressed his attitude to all steps taken by the Estate union, which he said was illegal. However, the defeat of the German Protestants in the Holy Roman Empire soon resulted in disintegration of the Czech uprising as well. Leading representatives of all three Estates were punished by a special tribunal in a proceeding held in July and early August 1547, but the consequences of the defeat most strongly affected the burgher estate.67 The king was well aware that the level of the punishment should not create conditions for further potential uprisings. Significant consequences of the uprising of the Estates on the political and legal level included revision of the Bohemian Provincial Code, which was issued in a new significantly revised version in 1549.68

Estate system, codification of provincial law and legislative stipulation of liberties in the fifteenth–seventeenth centuries The earlier legal system was based on customary law and court precedents. Mediaeval, and for a long time also early modern law was in addition largely fragmented. All these circumstances in fact prevented development of unified codes with uniform wordings which might be newly formulated regardless the valid legislation and practice. Mediaeval legislative documents, including the provincial law (ius terre), had to respect the tradition, and the ancient nature of the prevalent customary law. Late mediaeval legislation therefore followed earlier development and only in singular cases created new standards, mainly concerning public order and safety.69 However, even the new provisions lacked a number of elements of modern law concept as a set of generally binding legislative standards. Only authentic,

  65 For more regarding the involvement of the Estates in the resistance struggle see Petr Vorel, ‘“Přátelské snešení stavův českých” z března 1547 a jeho signatáři’, in Petr Vorel, ed., Stavovský odboj roku 1547. První krize habsburské monarchie (Pardubice – Praha, 1999), pp. 81–121. Regarding the relations of the Bohemian nobility to King Ferdinand I see Václav Bůžek, ‘Integrationsmöglichkeiten böhmischer Adeliger am Hof Ferdinands I.’, in Martina Fuchs et al., eds., Kaiser Ferdinand I. Ein mitteleuropäischer Herrscher (Münster, 2005), pp. 339–57.  66 Janáček, České dějiny, I/2, pp. 264–65; SČ II, pp. 168–74, n. 52.  67 SČ II, pp. 284–542, nn. 101–191; Janáček, České dějiny, I/2, pp. 299–332; Josef Válka, ‘Trest a obnova pořádku. Normalizace. Ferdinand I. a počátky absolutismu III’, Časopis Matice moravské, 125 (2006), pp. 343–64.   68  For more on this see below.  69 For more on this compare Wilhelm Brauneder, ‘Zur Gesetzgebungsgeschichte der niederösterreichischen Länder’, in Wilhelm Brauneder, Studien I: Entwicklung des Öffentlichen Rechts (Frankfurt a. M., 1994), pp. 456–62.

King, estates and the Czech Crown  95

legislatively binding text allowed for accurate interpretation and amendments in the defined manner.70 Significant legislative sources which appeared in Europe in the late Middle Ages and accompanied history of legislation until the modern codifications of the nineteenth and twentieth centuries, included sets of domestic law of the individual countries, naming very early use of the revolutionary invention of the print in late Middle Ages.71 At the turn of the fifteenth and sixteenth centuries printed sets of legal documents, often called Provincial Code (Landesordnung), also appeared in the Bohemian Crown Lands as well as in the wider Central European area. The attempts at codifying the provincial law were first observed in the territory in the thirteenth century, while shorter compilations of legal provisions demonstrably date back to the eleventh and twelfth centuries. The appearance of the individual printed legislative documents was very varied, from prints of individual provisions via various private records (legal books) to more extensive codifications whose provisions often remained part of valid law until the modern times.72 In the Czech Lands unified Provincial Codes (zřízení zemské in Czech) were established rather early – at the turn of the fifteenth and sixteenth centuries. The key resource for Bohemian provincial law is represented by the Vladislaus Provincial Code of 1500, which all later Bohemian Provincial Codes were based on. This Code is the earliest printed codification in all lands of the Bohemian Crown and represents one of the significant documents of autonomy of the Estates in the history of the Czech state. The Provincial Code was initiated by the nobility, who in 1487 came up with the requirement to compile all judicial findings and privileges concerning Bohemian provincial law in a single code. Ten years later, in 1497, the requirement of new codification was re-established with consent of King Vladislaus II of Jagiellon and the royal towns. Despite the common document of all three Estates and the king of 1499 (so-called Zůstání prešpurské – Bratislava Agreement) the final draft was only approved at the Provincial Diet in Prague in March 1500 and codified in the middle of the same year and printed regardless the rights of the royal towns and without the royal consent. For the formal point of view the Vladislaus Provincial Code is a collection of findings of the Provincial Court of Justice, resolutions of the Provincial Diet and royal statements, mostly presented at Provincial Diets, without any systematic structuring. A number of judicial findings and Diet resolutions taken over to the Provincial

 70 Hans Hattenhauer, Evropské dějiny práva (Praha, 1998), pp. 284–8; Rudolf Hoke, Österreichische und Deutsche Rechtsgeschichte (Wien – Köln – Weimar, 1996), pp. 99–105.   71 Timo Holzborn, Die Geschichte der Gesetzespublikation – insbesondere von den Anfängen des Buchdrucks um bis zur Einführung von Gesetzesblättern im 19. Jahrhundert (Berlin, 2003), pp. 69–97.   72 Armin Wolf,‘Die Gesetzgebung der entstehenden Territorialstaaten’, in Helmut Coing, ed., Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte, I: Mittelalter (1100–1500) – Die gelehrten Rechte und die Gesetzgebung (München, 1973), pp. 517–65; Gerhard Köbler, ‘Recht, Gesetz und Ordnung im Mittelalter’, in Karl Kroeschell and Albrecht Cordes, eds., Funktion und Form. Ouellen- und Methodenprobleme der mittelalterlichen Rechtsgeschichte (Berlin, 1996), pp. 93–116.

96  Jana Janišová and Dalibor Janiš

Code were relatively new, created soon before compilation of the codification, mainly in late 1480s and in the course of 1490s.73 The second (incomplete) edition of the Provincial Code dates from 1530 and was compiled with the assistance of King Ferdinand I.74 The composition and especially the content of the third release of the Bohemian Provincial Code of 1549 was already significantly different from the earlier versions, for it was compiled after the defeat of the uprising of the Estates in 1547. The changes mainly involved strengthening of the position and rights of the sovereign wherever the provincial law permitted that. The sovereign himself supported the efforts to change the Provincial Code, as he wanted to use it to assert his political programme announced shortly after the defeat of the uprising of the Estates at the Provincial Diet in 1547. Ferdinand I tried to make use of his power advantage and re-codify the Provincial Code as soon as possible.75 According to the stipulation in the Provincial Code the power of the sovereign was to be only restricted by orders, rights, liberties, privileges and constitutions, i.e. the positively expressed (written) legislation. The king reserved an exclusive right to summon Provincial and Regional (shire) Diet and appoint provincial officials and justices. Another article banned unions and other agreements of the Estates. The provision was to prevent any opposition of the Estates and violation of the ban was punished by beheading. In addition to these and other articles strengthening royal rights the Provincial Code also preserved many articles concerning the position and the rights of the Estates. For example, the position of the Provincial Court of Justice, which was an exclusively Estate (aristocratic) institution, remained unchanged. The dualist model of division of power between the king and the Estates was fixed by other important articles concerning liberal election of the king, the ban on appointing foreigners to local offices and exclusive competences of the Chancellery at Court of Bohemia. The Provincial Code of 1549 also included a provision concerning religion in the sense of mutual respect between the Catholic and Protestant faiths.76 The Bohemian Provincial Code was reissued in 1564, shortly after death of King Ferdinand I.77 The Order basically preserved the previous code system but the

  73 For details on the origin of this codification see Petr Kreuz and Ivan Martinovský, eds., Vladislavské zřízení zemské a navazující prameny (Svatováclavská smlouva a Zřízení o ručnicích). Edice (Dolní Břežany, 2007), pp. 11–84; Ivan Martinovský, ‘Vznik a počátky Vladislavského zemského zřízení’, in Karel Malý and Jaroslav Pánek, eds., et al., Vladislavské zřízení zemské a počátky ústavního zřízení v českých zemích (1500–1619) (Praha, 2001), pp. 85–100; Dalibor Janiš, ed., Práva a zřízení Markrabství moravského z roku 1545 (Pokus moravských stavů o revizi zemského zřízení) (Brno, 2005), s. 33–9.  74 Jaroslav Pánek, ‘Land Codes of the Bohemian Kingdom in Relation to Constitutional Changes in Central Europe on the Threshold of the Early Modern Age’, Historica, 9 (2002), pp. 7–39; Janiš, ed., Práva, pp. 40–6.  75 Jaroslav Pánek, Stavovská opozice a její zápas s Habsburky 1547–1577 (Praha, 1982), pp. 25–6, 35–6; idem, ‘Land Codes’, pp. 12–14.  76 Janiš, ed., Práva, pp. 41–44; idem, ‘Stände’, pp. 299–301.  77 Josef Jireček and Hermenegild Jireček, eds., Codex juris bohemici. Vol. IV/1: Jura et constitutiones regni Bohemiae (Pragae, 1882), s. 497–703.

King, estates and the Czech Crown  97

major articles were moved to the very beginning of the codification. Reassertion of influence of the Estates is symbolised by the article about royal election, included as the very first Article A 1, followed by the royal oath (Article A 2). This is followed by a series of articles about powers of the king, ban of misappropriation of the Crown assets, and matters where the powers of the king should be limited and finally by articles about religious faith. Further important provisions such as the provision about free finding of justice, quotations of earlier court decisions and legislative powers of the Provincial Diet were placed at the very end of the code, like in the case of the codification of 1549.78 In the Margraviate of Moravia an important role on the way towards a binding printed regional law code was performed by two significant elements – the Landfriede and the Tovačov Lawbook. Landfriede (i.e. contract for the peace in the country) became a fixed part of the provincial law and the Estate system in Moravia as of the late fourteenth century. It represented a significant legal institute taken over from the Western European environment.79 Landfrieden in Moravia developed into the form of a contract between the Estates and the king as a basis of the provincial law. They stipulated important rules concerning peace and safety of the land. An important principle on which the Landfriede was based was the obligation of members of the Landfriede to help each other and protection of rights and liberties. The content of the Landfriede was stabilised in Moravia in 1484 and its wording was repeated with just minor deviations by Landfrieden of 1496, 1505, 1516 and later.80 Renewal of operation of the Moravian Provincial Court of Justice after the long period of wars and uprisings in early 1480s led to establishment of the legal book, which mainly described operation of the basic regional institutions – the authorities, the Provincial Court and the regional land register (zemské desky, Landtafeln).81 The origin and composition of the Tovačov Lawbook follows earlier traditions of mediaeval legal books – it is the work of a single author, in this case the Moravian Lord Lieutenant Ctibor of Cimburk and Tovačov, containing his own formulations as well as taken over texts of court decisions and Diet resolutions and texts of royal and other charters.82 The Tovačov Lawbook was not published in the printed format, probably because

  78  Ibidem, pp. 502–509, 686–687.  79 Srov. Elmar Wadle, Landfrieden, Strafe, Recht. Zwölf Studien zum Mittelalter (Berlin, 2001); Hans Angermeier, Königtum und Landfriede im deutschen Spätmittelalter (München, 1966).   80 Dalibor Janiš, ‘K úloze institutu landfrýdu v moravském zemském právu na prahu novověku (Vznik a vývoj landfrýdů a role panovníka)’, Folia Historica Bohemica, 25 (2010), pp. 7–28; Jana Janišová and Dalibor Janiš, Zemské zřízení Markrabství moravského z roku 1516 (Počátky kodifikace zemského práva na Moravě) (Olomouc, 2013), pp. 22–3, 34–46.  81 On Tovačov Lawbook František Čáda, ‘Kniha Tovačovská’, Studie o rukopisech, 6 (1967), pp. 1–52; idem, ‘Kniha Tovačovská – základy jejího textu’. Studie o rukopisech, 9 (1970), pp. 1–56; Janišová and Janiš, Zemské zřízení, pp. 16–22; Josef Válka, ‘Ctibor Tovačovský a Morava jako model stavovské země’, in František Hýbl, ed., Morava na prahu nové doby (Přerov, 1995), pp. 22–36.  82 Karel Josef Demuth, ed., Kniha Tovačovská aneb Pana Ctibora z Cimburka a z Tovačova zemského hejtmana markrabství Moravského sepsání obyčejů, řádů, zvyklostí starodávných a práv markrabství Moravského (Brno, 1858).

98  Jana Janišová and Dalibor Janiš

the collection was originally compiled for just a narrow circle of representatives of Moravian noble families as a ‘lesson’ on rudiments of Moravian provincial law. The introductory chapters of this legal book are devoted to the question of the relation between the provincial (land) community of the Estates and the sovereign. The book describes conditions for acceptance of a new king in the Margraviate of Moravia, the position and role of regional offices as well as the method of confirmation of the provincial privileges by every new king. The text includes significant provisions concerning the autonomous position of Moravia and its Estate representatives and an article formulating the ‘freedom’ of the Moravian Provincial Court of Justice. This court was considered a completely autonomous institution of the regional jurisdiction fully controlled by the nobility and significantly affecting the form of the Moravian provincial law.83 Thus, the Tovačov Lawbook, since its very origin, performed the role of the Moravian Provincial Code and on the legal and political level reflected standpoints and opinions of the Moravian provincial (land) community. As has already been mentioned, this legal book was used until the Battle of the White Mountain (1620, the end of the Estates monarchy) and a number of its articles were even taken over to later resolutions of the Moravian Provincial Diet. Tovačov Lawbook became the key resource for compilation of the extensive printed Moravian Provincial Code of 1535. About one third of the articles included in the new code were taken over from the very Tovačov Lawbook. Also the following edition of 1545, issued by the Estates without consent of the king and therefore not used in practice, included a number of other articles of the Tovačov Lawbook by which the Code was extended. Thus, the proportion of the provisions based on the Tovačov Lawbook was further increased. Out of the more than two hundred and fifty articles of the Provincial Code of 1545 more than one hundred were taken over from or at least significantly affected by the relevant provisions of the legal book by Ctibor of Cimburk and Tovačov.84 The earliest Moravian Provincial Code was published in 1516. This was a short print including the text of the Landfriede of 1516, provisions of police nature (safety in the country) and further regulations concerning the Provincial Court of Justice and process and property law.85 Compilation of the already more extensive Provincial Code of 1535, initiated by the Moravian Estates around or before 1530 was connected with a number of different opinions of King Ferdinand I of Habsburg on the proposals of the Estates. The resulting Provincial Code, due to the royal opinions, did not include any articles defining the basis of the Estate system in Moravia and the relation between the Estates and the king. Most provisions related to process law, i.e. Provincial Court of Justice, which was also reflected in the title of the code: Zřízení Markrabství moravského o soudu zemském (Order of Margraviate of Moravia on Provincial Court

  83  Ibidem, pp. 26–7, 120.   84  For more on the origin and content of this establishment see Janiš, ed., Práva, pp. 66–74.   85  For more on its origin see Janišová and Janiš, Zemské zřízení, pp. 28–73.

King, estates and the Czech Crown  99

of Justice).86 Important articles of the Tovačov Lawbook on liberties of the Estates could not be asserted to the Provincial Code by the Estates, for the sovereign did not consider this legal book binding for himself. This represented a significant weak point of this legal resource – unlike Bohemia, where the Vladislaus Provincial Code was binding for King Ferdinand I due to the consent expressed by Vladislaus II of Jagiellon of 1502. Only the revision of the Moravian Provincial Code in 1540s contained several articles from the Tovačov Lawbook added there by the Moravian Estates, including two significant provisions about liberties of the Margraviate – the articles entitled Že Margrabství moravské svobodné jest (That Liberty of Margraviate of Moravia Exists) and the not less important O svobodě v soudu panském (About Liberty in Provincial Court of Justice).87 Further negotiations of the Moravian Estates with Ferdinand I about the revision of the Provincial Code were protracted and the king rejected the proposals of the Estates connected with royal rights.88 In 1562 Ferdinand I achieved what he wanted, that the newly issued Moravian Provincial Code was in fact nothing more than a reprint of the Code of 1535, extended with just a couple of articles insignificant from the viewpoint of the royal power. Also later the issue of revision of the Moravian Provincial Code frequently appeared on the agenda of the Moravian Provincial Diets.89 The last revision of the Moravian Provinical Code before the Battle of the White Mountain (1620) was issued in 1604.90 In the years 1607–1608 an uprising of the Estates burst out, focused against Emperor Rudolf II. This uprising was connected with radicalisation of the political and religious atmosphere in the Bohemian Crown Lands, and with dissatisfaction of part of the Estates with the rule of Rudolf II and with the ambitions of his brother, archduke Matthias. It was Matthias, for many years in dispute with brother Rudolf, who represented an important ‘legalisation’ element in the uprising against Emperor Rudolf II. The disputes among the Habsburgs were transformed into a

 86 For more on the establishment of the Provincial Code of 1535 and sources for the individual articles see František Čáda, ed., Zemské zřízení moravské z roku 1535 spolu s tiskem z roku 1562 nově vydaným (Praha, 1937), pp. XXVI–LI.  87 Janiš, ed., Práva, p. 101, art. 2; p. 107, art. 5; František Čáda, ‘Moravští stavové v  boji o svá práva (Historie jednoho článku zemského zřízení)’, in Miscellanea historico-iuridica (Praha, 1940), pp. 24–35.  88 The characteristic of the policy of Ferdinand I towards the Estates was published by Pánek, ‘Regierungsstrategie’, pp. 323–337.   89 For more on the attempts at the revision of the Provincial Code see Tomáš Knoz, ‘Žerotínovy glosy k moravskému zemskému zřízení z roku 1562. Osobní prvky v zemské legislativě a příprava zemských zřízení v prostředí žerotínské Moravy’, in Libor Jan and Dalibor Janiš et al., Ad iustitiam et bonum commune. Proměny zemského práva v českých zemích ve středověku a raném novověku (Brno, 2010), pp. 116–129. For more on the resources for the Provincial Code see also Jana Janišová, ‘De iure nostro. Právní spis Karla staršího ze Žerotína’, in Libor Jan and Dalibor Janiš et al., Ad iustitiam et bonum commune. Proměny zemského práva v českých zemích ve středověku a raném novověku (Brno, 2010), pp. 73–78.  90  Zřízení zemské Markrabství moravského, s povolením jeho milosti císařské etc. a s poručením všech čtyř pánův stavův znovu vytištěné (Olomouc, 1604) – see edition Jana Janišová, ed., Zřízení zemské Markrabství moravského z roku 1604 (Praha, 2015).

100  Jana Janišová and Dalibor Janiš

crisis in late 1607 and Matthias in connection with Hungarian and Austrian Estates chose the way of open conflict aimed at dethroning of Rudolf II.91 Thus, the Estates acquired the right to decide about the person of the sovereign, which was the principle which the Habsburgs opposed since the inauguration of Ferdinand I to the Bohemian and Hungarian throne. In early February 1608 the Hungarian and the Austrian Estates established a union (‘confederation’), openly focused against Rudolf II, although ‘officially’ established to assure the peace treaties of 1606. The imperial court underestimated the opposition of the Estates in Moravia, which in spring 1608 joined the confederation of Estates.92 Moravian Estates considered their action as the defence of Moravian provincial liberties and treated it as being in accordance with Moravian provincial law, as they referred to the relevant article of the Landfriede, concluded in 1579 with Rudolf II.93 Moravian Estates joined the confederation of Estates and encouraged the Bohemian and the Silesian Estates to take the same step, without success. The subsequent military campaign of Matthias, focused on the Czech Lands, culminated with a contract between the two Habsburgs executed in Libeň (near Prague) on 25 June 1608. Although the radical wing of the Estates wanted to dethrone Rudolf II completely, the Bohemian and the Silesian Estates were satisfied with issue of the Charter on Religious Freedoms of 9 July 1609. This document legalised nonCatholic religions in the territory of the Kingdom of Bohemia.94 Negotiations on the extension of the confederation of Estates onto the other regions of the Bohemian Crown Lands failed. The mutual relationship of Bohemia and Moravia was established by a contract of 26 May 1611.95 After the invasion of the army of the Bishop of Passau to Bohemia in 1611, Czech Estates reassessed their original standpoint and Rudolf II was dethroned at the General Assembly of the Bohemian Crown Lands in the same year. On the days preceding the coronation of Matthias he released the Estates of the Crown Lands from their oaths and liabilities and thus ceased to be Bohemian king.96 Only further developments connected with the outbreak of the Czech Estate uprising led to fulfilment of the efforts of the confederation and to stipulation of not only the relations between the lands of the Bohemian Crown based on the Estate principle but also the relationship between the sovereign and the Estates based on the same principle. On the basis of the Confederation of 31 July 1619

 91 Josef Janáček, Rudolf II. a jeho doba (Praha, 1987), pp. 388–406;Vorel, Velké dějiny, pp. 411–46.  92 František Kameníček, Zemské sněmy a sjezdy moravské. Jejich složení, obor působnosti a význam od nastoupení na trůn krále Ferdinanda I. až po vydání Obnoveného zřízení zemského (1526–1628), Vol. I (Brno, 1900), pp. 50–5.   93  Ibidem, p. 399.  94 Jiří Just, Rudolfův majestát 9. 7. 1609. Světla a stíny náboženské svobody (Praha, 2009).  95 Josef Válka, Morava reformace, renesance a baroka (Brno, 1996), pp. 88–9.  96 Jan Bedřich Novák, Rudolf II. a jeho pád (Praha, 1935), pp. 499–516; Vorel, Velké dějiny, pp. 452–3; Janáček, Rudolf II., pp. 490–2.

King, estates and the Czech Crown  101

the Bohemian throne became fully electable with the voting right allocated to the Estates of all Bohemian Crown Lands. Election or coronation of a new king before the death of the existing king was banned and the oath taken by the Estates explicitly applied to the particular king. In the case of violation of the freedom of religion or any other article of the Confederation by the king the Estates were to be absolved of their oaths and endowed with the right of resistance against the sovereign. This procedure against the king thus became legal and could not be considered offence against the royal majesty (crimen laesae maiestatis).97 Thus, the Confederation for the first time in the history of Bohemia explicitly codified the right of the Estates to resistance against the sovereign (ius resistendi) – which made the power of the Estates superimposed to the power of the king.98 The General Assembly of the Bohemian Crown Lands passing the document also decided about dethroning of Ferdinand II of Habsburg. The legal justification was a little fragile, supported mainly by the approved articles of the Confederation. The Moravian and Silesian and Lusatian Estates hesitated about the decision but eventually joined the Bohemian Estates in dethroning Ferdinand. Legislative stipulation of superimposition of the Estates over the sovereign and therefore of the right to resistance only had to wait for the very end of existence of the Estates monarchy.99 The defeat of the uprising of the Estates in the Battle of the White Mountain in 1620 terminated the series of the political programmes of the Estates, formulated in the Czech Lands in the course of the sixteenth and early seventeenth centuries and culminating in the period of the uprisings in the above-mentioned Bohemian

 97 The Czech text was published by František Kameníček, Zemské sněmy a sjezdy moravské. Jejich složení, obor působnosti a význam od nastoupení na trůn krále Ferdinanda I. až po vydání Obnoveného zřízení zemského (1526–1628), Vol. II (Brno, 1902), pp. 649–9, n. 32. For more on survival and editions of the individual texts see Bedřich Jenšovský, ‘O stavovských konfederacích v českém povstání (Poznámky diplomatické)’, in Bedřich Jenšovský and Bedřich Mendl, eds., Sborník prací věnovaných řediteli dru Janu Bedřichu Novákovi k šedesátým narozeninám (Praha, 1932), pp. 495–505; Josef Válka, ‘Konfederace z roku 1619 ve vývoji teritoriální a náboženské struktury České koruny’, in Karel Malý and Jaroslav Pánek, eds., et al., Vladislavské zřízení zemské a počátky ústavního zřízení v českých zemích (1500–1619) (Praha, 2001), pp. 430–45.   98 Compare Winfried Schulze, ‘Estates and the Problem of Resistance in Theory and Practice in the Sixteenth and Seventeenth Centuries’, in Robert J. W. Evans and Trevor V. Thomas, eds., Crown, Church and Estates. Central European Politics in the Sixteenth and Seventeenth Centuries (London, 1991), pp. 158–75. For more on political thinking in the Czech Lands see Stanislav Sousedík, ‘Jan Jesenský jako ideolog stavovského povstání’, Filosofický časopis, 40 (1992), pp. 69–81; Vladimír Urbánek, ‘Simeon Partlicius a jeho příspěvek k politickému myšlení doby předbělohorské. Typologie válek a právo na odpor’, Studia Comeniana et Historica, 29 (1999), n. 62, pp. 61–75; Jaroslav Pánek, ‘K úrovni českého politického myšlení na počátku novověku’, Časopis Matice moravské, 117 (1998), pp. 453–64.   99 For newer information about this see Ivana Čornejová and Jiří Kaše and Jiří Mikulec and Vít Vlnas, Velké dějiny zemí Koruny české, Vol. VIII: 1618–1683 (Praha – Litomyšl, 2008), pp. 36–42.

102  Jana Janišová and Dalibor Janiš

Confederation of 1619.100 The quick and complete defeat of the uprising of the Estates was also the absolute end of the Confederation. The Post-White-Mountain period is connected with strong enforcement of the sovereign power – the absolutist state model so widely criticised in literature.101 The strongest expression of this process on the legal level certainly is the publication of the Renewed Provincial Code (Verneuerte Landesordnung) for the Kingdom of Bohemia in 1627 and for the Margraviate of Moravia in 1628.102 Thus, less than a decade after approval of the Bohemian Confederation a legal document appeared in the Czech Lands whose main principles represents kind of an opposite pole to its main ideas: the power of governance in the wider sense is closely connected with the sovereign; the role of the Estates is significantly weakened and in many cases reduced to mere formal, or static one. The Catholic religion becomes the monopolistic religion allowing for no exceptions. Although both Renewed Provincial Codes, with very close contents, represent one of the key legal resources for the study of the history of the Czech Lands in the seventeenth and eighteenth centuries, insufficient attention has been paid to them in the historic and especially legal history literature.103 Many of the scattered opinions are often superficial without any deeper knowledge of the issue and sometimes only contain a negativist, often emotionally coloured assessment. Preparations for the revision of the legislative basis of the Czech Lands were already commenced by Emperor Ferdinand II of Habsburg in late 1620. The prepared measures were to concern religion, law, military and financial affairs and also revision of privileges of the Estates. The emperor emphasized that the Estates lost all their rights and liberties due to the right of the war (jure belli) – i.e. as a consequence of the defeat of their uprising.104 This theory about lost rights was later applied in the sense that all liberties and privileges could be regarded by Ferdinand II as cancelled but that he left certain privileges to the Bohemian and Moravian Estates for special reasons. After this, the emperor pragmatically got rid of unacceptable documents and, by confirmation of further existence of the remaining privileges, tried to establish a certain continuity with the previous legal situation (before ‘hideous

100 Cf. Jaroslav Pánek, ‘České stavovské vize střední Evropy (Od protiturecké aliance k  evangelické konfederaci)’, in Marcel Kosman, ed., Kultura polityczna w Polsce III.Wizje przysz(ości (Poznań, 2000), pp. 102–17. 101 The discussion on absolutism has most recently been summarised (with extensive bibliographical references) by Tomáš Knoz, ‘Absolutismus nebo “absolutismus”? K dějinám jednoho pojmu’, Časopis Matice moravské, 121 (2002), pp. 451–83; Josef Válka, ‘Středověké kořeny mocenského dualismu panovníka a obce (Historiografické aspekty diskusí o “absolutismu”)’, Časopis Matice moravské, 123 (2004), pp. 311–335. Cf. Heinz Duchhardt, Das Zeitalter des Absolutismus (3rd edn., München, 1998). 102  For newer information about this also cf. Hans Wolfgang Bergerhausen, ‘Die „Verneuerte Landesordnung” in Böhmen 1627: ein Grunddokument des habsburgischen Absolutismus’, Historische Zeitschrift, 272 (2001), pp. 327–51. 103 Edition: Hermenegild Jireček, ed., Obnovené právo a zřízení zemské dědičného království Českého 1627 (Praha, 1888); idem, ed., Obnovené zřízení zemské markrabství Moravského 1628 (Brno, 1890). 104  Josef Kalousek, České státní právo (2nd edn., Praha, 1892), pp. 400–1.

King, estates and the Czech Crown  103

rebellion’).105 Moravia is a good example of the proceeding of the emperor. In June 1628 the Provincial Diet in the royal town of Znojmo officially announced the Renewed Provincial Code for Moravia and Ferdinand II submitted to the Moravian Estates a summary confirmation of their rights and liberties dated 26 June 1628. In its introduction he emphasized participation of Moravia in the uprising of the Estates (‘hideous rebellion’) and its subsequent conquering by military power, which in his opinion led to serious consequences in the form of loss of all privileges of the Estates – but regarding loyalty of certain inhabitants of the country he left certain privileges in legal force (unless contradicting the Renewed Provincial Code).106 Emperor Ferdinand II did not want to punish his adherents who remained loyal to him throughout the uprising period by removal of all privileges from the Estates. And as mentioned in the text, the confiscated estates (manors) in Moravia were also donated after 1620 to various courtiers of Ferdinand, his officials or commanders of the army, who thus extended the Moravian Estate community. It is important to note in this context that it was in this time when a significant stage of confiscations was accomplished for their standards were already codified and direct participants in the uprising were punished or had emigrated from the country.107 Thus, Ferdinand’s confiration was addressed to the new community of the Estates, deprived of undesired persons. And last but not least the royal confirmation reminds of the successfully continued re-Catholisation of the country.108 Thus, Ferdinand II out of his imperial and royal power109 confirmed all privileges, rights and liberties concerning individual or all Estates. Unlike the Bohemian confirmation, the Moravian confirmation, the wording of which was virtually identical, was extended with the list of all 140 confirmed charters of privileges of 1212 to 1617, which were at the same time returned to the Moravian Estates at the respective Provincial Diet.110 The summary confirmation of privileges was the only way, for the content and real relevance of the individual documents could not be realistically assessed: the interpretation was especially difficult in the case of the earliest documents whose mediaeval life and institutional reflections hardly corresponded to the situation in the former half of the seventeenth century. The issue of validity of the individual provisions of the liberties of the Estates and the regional liberties conditioned by the will of the sovereign was thus resolved relatively easily by stating

105  Ibidem, p. 404. 106 The confirmation was issued in two originals in Czech and in German language – Moravský zemský archiv v Brně [Moravian Land Archive in Brno], Collection A 1 – Stavovské listiny, inv. n. 1130 (Czech); inv. n. 1131 (Germ.). List of confirmed privileges in Kalousek, České státní právo, pp. 603–17. 107 See Tomáš Knoz, Pobělohorské konfiskace: moravský průběh, středoevropské souvislosti, obecné aspekty (Brno, 2006). 108  Cf. František Matějek, Morava za třicetileté války (Praha, 1992), pp. 61–196. 109 The privileges were explicitly confirmed by the imperial and the royal power for the reason that in addition to the document issued by Bohemian kings Ferdinand II as Roman emperor also confirmed earlier privileges granted by Roman emperors. 110 Kalousek, České státní právo, pp. 603–17.

104  Jana Janišová and Dalibor Janiš

that all that did not contradict the Renewed Provincial Code or was not changed by Ferdinand II in any other way remained valid. On the legal level this meant that the provisions of the Renewed Provincial Code governed over all earlier standards of the ‘state’ law. At first sight this clause may appear too free and allowing for different interpretations in the case of doubt about which of the provisions remained valid and which did not. However, the wording of the relevant articles of the Renewed Provincial Code concerning royal power (and indeed also the actual position of Ferdinand II) rather clearly suggests that such interpretation was again reserved for the sovereign alone.111

Excursus: privileges for Olomouc bishopric in the sixteenth century Privileges and freedoms also applied to church institutions already from the Middle Ages, in the case of the Czech Lands especially to the main Olomouc Bishopric.112 The relation of the Olomouc Bishop to the Bohemian King, the position of the Bishopric within Moravia and within the Bohemian Crown Lands as a whole and especially the relations between the bishop and the Moravian Estate community became one of the main points of the Moravian interior politics of the sixteenth century. The legal position of the Olomouc Bishopric was based on a number of privileges granted to the bishops as early as in the course of the twelfth and thirteenth centuries. The oldest privilege, concerning immunity and the coin regulation, was obtained in 1140s by bishop Henry (Jindřich) Zdík. Further significant privileges were granted by the Bohemian kings to the bishopric in the years 1207, 1234 and 1256. The privileges concerned, inter alia, the right to free election of the bishops by the chapter and jurisdiction over people settled at the episcopal estates. These early privileges, later repeatedly confirmed, reflected the significant position of the Olomouc Bishopric in Moravia and in the Czech state as a whole.113 In the course of the twelfth and thirteenth centuries the Olomouc Bishopric acquired extensive estates (manors) where the feudal system was established by Bishop Bruno of

111 Cf. ibidem, pp. 439–443; Dalibor Janiš, ‘Postavení a činnost moravského zemského sněmu po roce 1620 (K institucionálním proměnám českého státu v Obnoveném zřízení zemském)’, in Karel Malý and Ladislav Soukup, eds., Vývoj české ústavnosti v letech 1618–1918, (Praha, 2006), pp. 80–111; Jiří David, ‘Moravské stavovství a zemské sněmy ve druhé polovině 17. století’, Folia Historica Bohemica 24 (2009), pp. 111–63. 112 Olomouc was (next to the royal city of Brno) the largest royal city in the Margraviate of Moravia and there was the official seat of bishops at the cathedral of St. Wenceslas (today Archbishopric Olomouc). 113 Regarding the early history of the bishopric see new information in Jana Hrbáčová and Marek Perůtka, eds., Jindřich Zdík (1126–1150). Olomoucký biskup uprostřed Evropy (Olomouc, 2009); Jan Bistřický, ‘Zdíkovy listiny’, Český časopis historický, 96 (1998), pp. 292–306.

King, estates and the Czech Crown  105

Schauenburg as one of the pillars of power of the bishops of Olomouc.114 The power increase of the Olomouc bishops in the early periods was accomplished in 1348, when the bishop became direct vassal of the Bohemian king and the Bohemian Crown Lands.115 The significant position in the structures of power and Estate structures of the Margraviate was maintained by the Olomouc bishop throughout the Hussite revolution and the temporary decrease of significance of Bishopric in the late fifteenth century.116 The position of the Olomouc bishops in this period is also reflected in the Moravian provincial law described in the above mentioned legal book of Ctibor of Cimburk and Tovačov, where the position of Olomouc bishops is stipulated by a separate provision.117 Economic and political stabilisation of the Olomouc Bishopric at the beginning of the episcopate of Stanislaus Thurzo of Bethlenfalva (1496–1540) was soon destabilised by the increasing requirements of the bishops for extension of their rights and powers in the Margraviate of Moravia as well as their efforts at internal reinforcement of their feudal system. Despite the general decline of the feudal systems in the sixteenth century the feudal constitution of the Olomouc Bishopric further strengthened their positions. The Olomouc bishops held special seats at the Moravian Provincial Court of Justice and at the Provincial Diet, often influenced occupation of regional offices, possessed extensive manors and his own judicial apparatus, headed a separate feudal structure, represented spiritual authority for the whole country, acted as trustees of emperors or worked as diplomats in their service.118 On 22 September 1531 the Olomouc bishop Stanislaus Thurzo executed a contract with the Moravian Estates,119 finally stipulating exclusion of the

114 Regarding episcopal estates and the feudal system see Libuše Hrabová, Ekonomika feudální državy olomouckého biskupství ve druhé polovině 13. století (Praha, 1964); Miloslav Sovadina, ‘Lenní listiny biskupa Bruna’, Sborník archivních prací, 24 (1974), pp. 426-460; Dalibor Janiš, ‘Lenní systém olomouckého biskupství za episkopátu Dětřicha z Hradce (1281–1302). K problematice lenních a lokačních listin’, Časopis Matice moravské, 116 (1997), pp. 325–46; Jana Janišová and Dalibor Janiš, ‘K proměnám lenního systému olomouckého biskupství za episkopátu kardinála Františka z Dietrichsteina’, in Kardinál František z Ditrichštejna a jeho doba. XXIX. Mikulovské sympozium 2006 (Brno, 2007), pp. 287–99. 115  For more on this issue see below. 116 Antonín Roubic, ‘Olomoucké biskupství ve druhé polovině 15. století’, in František Hýbl, ed., Morava na prahu nové doby (Přerov, 1995), pp. 94–103; Tomáš Baletka, ‘Olomoucké biskupství v době sedisvakance. Osoby a instituce ve víru vzájemných interakcí (1482–1497)’, in Pavel Krafl, ed., Sacri canones servandi sunt. Ius canonicum et status ecclesiae saeculis XIII–XV (Praha, 2008), pp. 540–4. 117  Demuth, ed., Kniha Tovačovská, pp. 121–2. 118 For general information regarding the position of Olomouc bishops in early modern age see Kameníček, Zemské sněmy, II, pp. 106–14; III (Brno, 1905), pp. 2–29; Rudolf Zuber, Osudy moravské církve v 18. století, Vol. I (Praha, 1987), pp. 11–48. 119 Moravský zemský archiv Brno, Collection A1 – Stavovské listiny, inv. n. 637. Edition of charter: Kameníček, Zemské sněmy, II, pp. 577–9, n. 9.

106  Jana Janišová and Dalibor Janiš

directly administrated manors of the Olomouc Bishopric from the jurisdiction of the provincial law and their subordination to the feudal court. Jurisdiction of the Provincial Court of Justice was preserved, though, in the case of disputes concerning allodial estates held by the bishop. Similarly, the bishop’s servants and vassals had to testify at the Provincial Court of Justice. The person and the estates of the bishop not entered in the land register were not subject to the jurisdiction of the provincial law, though. Disputes concerning these were to be settled by the feudal court in the bishop’s residential town of Kroměříž. The contract was included as an addendum to the Moravian Provincial Code of 1535 and taken over into all its later editions of 1545, 1562 and 1604.120 The contract explicitly exempted just the directly administrated manors, that is, the estates the bishop managed at his own cost, and not the feudal estates. A certain discrepancy between the legal standard and the practice was noted by nearly all bishops of Olomouc one by one in the latter half of the sixteenth century. Thus, the disputes between the Moravian Estate community and the bishops of Olomouc concerning this issue are frequently included in the agenda of the Moravian Provincial Court of Justice and the Moravian Provincial Diet too.121 This situation was only partly consolidated by bishop Stanislaus Pavlovský of Pavlovice (1579–1598).122 The decision of the Provincial Diet held in Olomouc in January 1582 cancelled special types of petitions against he episcopal vassals. In the case of any future dispute with a vassal, courtier, serf or official of a bishop or the need for their testimony the petitioners had to address the feudal court in Kroměříž from then on.123 Part of this resolution of the Provincial Diet was also included in the new edition of the Provincial Code of 1604.124 The first visible success of bishop Pavlovský was a strong impulse for offensive policy against the Estates and the emperor. The self-asserting proceeding of the bishop in the question of assertion of the rights of the Olomouc Bishopric, supported by the awareness of the compulsory gratitude of the sovereign for the extensive merits in the Polish policy of the Habsburgs and the awareness of being the most powerful Catholic institution in Moravia, was crowned with success in August 1588. Emperor Rudolf II by

120  Čáda, ed., Zemské zřízení, pp. 182–6, art. 138; Janiš, ed., Práva, pp. 228–30, art. 259; Zřízení zemské Markrabství moravského, s povolením jeho milosti císařské etc. a s poručením všech čtyř pánův stavův znovu vytištěné (Olomouc, 1604), pp. CXLIII-CXLV. 121 Jana Janišová, ‘Privilegium Rudolfa II. pro olomoucké biskupství z roku 1590. Právní argumentace biskupa Stanislava Pavlovského’, Folia Historica Bohemica, 27 (2012), pp. 43–4. 122 For new information about the personality of bishop Stanislaus Pavlovský see Jaroslav Pánek, ‘Olomoucký biskup Stanislav Pavlovský z Pavlovic. Duchovní kníže na prahu rekatolizace českých zemí’, in Ondřej Jakubec, ed., Stanislav Pavlovský z Pavlovic (1579–1598). Biskup a mecenáš umírajícího věku (Olomouc, 2009), pp. 15–31, there the references to the older literature. 123 Moravský zemský archiv Brno, Collection A 3 – Stavovské rukopisy, inv. n. 3, Památky sněmovní, fol. 249v–50r. 124  Zřízení zemské (1604), pp. CXXVIII–CXXIX.

King, estates and the Czech Crown  107

his charter renewed use of the princely title by the Olomouc bishops and improved the coat of arms of the bishopric.125 The official renewal of the long refused princely title was to be just the first of many steps towards reinforcement of the position of the episcopacy in Moravia. New requirements of Stanislav Pavlovský were voiced as soon as the following year. Emperor Rudolf II, despite his original views that the new privilege would be issued at the cost of the royal regulations and liberties of the Margraviate, eventually confirmed acceptance of all requirements of the bishop in full. On 14 July 1590 the emperor as the Bohemian king issued a charter126 by which he allowed Olomouc bishops to seal Moravian Landfrieden for their vassals who only held feudal estates and constituted their own army in the case of war. The emperor also newly extended the jurisdiction of the feudal court to include disputes concerning serious criminal offences and honour. The possibility of appeal towards the Bohemian king against unfavourable resolutions of the disputes was preserved. In the same way the Kroměříž court was to deal with complaints of the serfs of the feudal estates against their feudal lords. In the privilege for the bishop the emperor repeated the declaration of the right to use the princely title, the exemption of the directly administrated and feudal estates from the jurisdiction of the Moravian Provincial Court of Justice, autonomy of the feudal court and its jurisdiction over not only the episcopal vassals, but also persons settled at episcopal estates or in episcopal services. The sovereign also explicitly stated that the above-mentioned provisions were binding for all Estates in the Bohemian Crown Lands under defined penalty. Thus, the bishop of Olomouc, on the basis of the privileges of 1588 and 1590, became the second highest post after the emperor in the Margraviate of Moravia.127 Immediately after issue of the privilege the first protests appeared, both on the part of the vassals of the bishop and on the part of the Estate community, especially the Moravian nobility. The episcopal vassals were afraid of sanctions from the Moravian regional governor in the case of their non-attendance of the Provincial Diet, non-sealing of the Landfrieden in person, or absence from proceedings concerning disputes about honour before the Moravian Provincial Court of Justice. The vassals said that the disputes concerning honour had always been judged by this court and that the bishop should renegotiate this with the Estates. Changes in the position of the episcopal vassals in relation to the provincial law were so essential that the vassals themselves stated in discussions about the new formulation of the printed feudal rights that the legislators should wait for the new issue of the

125 Karel Müller, ‘Privilegium Rudolfa II. pro olomoucké biskupy z r. 1588’, Zpravodaj klubu genealogů a heraldiků Ostrava, 36 (1988), pp. 11–4; idem, ‘Oslavná latinská báseň na nový znak olomouckého biskupství z roku 1588’, in Ivana Koucká, ed., Laudatio brevis. Sborník věnovaný Doc. PhDr. Stanislavu Sedláčkovi (Olomouc, 2004), pp. 169–75. 126 Zemský archiv Opava [Land Archive Opava], subsidiary Olomouc, Collection Lenní dvůr Kroměříž II, Pergamenové listiny, inv. n. 327, sg. T I a 3a. 127  Janišová, ‘Privilegium’, pp. 46–7.

108  Jana Janišová and Dalibor Janiš

Provincial Code (already under preparation at that time), to reflect the emerged condition. The Estates then opposed virtually the whole content of the privilege.128 None of the disputable issues were satisfactorily resolved before the uprising of the Estates (1619–1620). Especially under the episcopate of Franz Cardinal of Dietrichstein, who continued the self-asserting penetrative policy of his predecessor, bishop Stanislaus Pavlovský, the disputes intensified even further, to then culminate at the Moravisan Provincial Diet in 1612.129 The privilege of Rudolf II of 1590 was a relatively big intervention in the Moravian provincial law and some of its provisions remained questionable for a long time, while others, despite the opposition of the Estates, were fully implemented. The Olomouc Bishopric enjoyed considerable strengthening of its rights mainly thanks to bishop Stanislaus Pavlovský, who as a good jurist was able to convince the sovereign about many questions and as a good pragmatic politician was able to implement his diplomatic success in practice. We may assume that many arguments bishop Pavlovský used in his negotiations with the emperor were taken over from his predecessors, especially from the learned founder of the Olomouc university, bishop William Prusinovský of Víckov.130

Czech historiography of the nineteenth century and idea of Czech state The question of legal privileges concerning the Czech Lands and their population appeared in the nineteenth century as one of the main themes of the emerging Czech historiography. This interest of Czech historians, whose historic thought was already modern and critical, was more than scholarly and academic. It was closely connected with the nineteenth century Czech politics striving at constitutional changes in Austria (since 1867 Austria-Hungary). It is not surprising in this context that a number of historians, such as for example František Palacký (1796–1876), were also outstanding politicians.131 Formation of the modern Czech nation was set in the wider context of emancipation of more European nations. The first stage of this process commenced in the last quarter of the eighteenth century in connection with defence of the Czech language, which was to be restored in its role as the language of Czech intelligentsia. Development of science and education performed a significant role. The Czech

128  Ibidem, p. 46. 129 Vincenc Brandl, ed., Sněm držaný léta 1612. Ze zápisů Karla z Žerotína (Brno, 1864), pp. 25–29, 72–76; Jana Janišová, ed., Šlechtické spory o čest na raně novověké Moravě. Edice rokové knihy zemského hetmana Václava z Ludanic z let 1541–1556 (Brno, 2007), pp. 116–20. 130  Janišová, ‘Privilegium’, pp. 59–60. 131 Briefly on Czech historiography František Kutnar and Jaroslav Marek, Přehledné dějiny českého a slovenského dějepisectví. Od počátků národní kultury až do sklonku třicátých let 20. století (Praha, 1997), pp. 197–362. On F. Palacký recently Jiří Kořalka, František Palacký (1798–1876). Der Historiker der Tschechen im österreichischen Vielvölkerstaat (Wien, 2007).

King, estates and the Czech Crown  109

society also resisted centralisation of the Habsburg monarchy based on reforms of Empress Maria Theresia and her son Joseph II. The Czech statehood became one of the major issues of the first half of the nineteenth century. In 1526 the lands of the Bohemian Crown became part of the large Central European monarchy of the Habsburg dynasty (which may be called personal union).132 After the loss of Lusatia in the mid-seventeenth century and most of Silesia in the mid-eighteenth century the Bohemian Crown only consisted of two large territories – the Kingdom of Bohemia and the Margraviate of Moravia. The systematic administrative separation of the two countries (two Provincial Diets, two supreme administrative land offices) connected with centralisation and legal unification of the monarchy in the 18th and the former half of the nineteenth centuries resulted in factual cessation of independent Czech constitution, at the same time being a disintegrating factor of the constitution of the modern Czech nation.133 In the course of the nineteenth century Czech political and intellectual representation strived at assertion of constitutional autonomy of the Czech Lands. The efforts were based on the concept of historic Czech constitutional law, perceived as the valid legal basis of formally uninterrupted existence of the Czech state from the Middle Ages to the mid-nineteenth century. On the formally legal level the concept was represented by the sum of older legislative regulations, privileges and customs stipulating the position of the Czech state (the Bohemian Crown Lands) as a whole, of its individual parts (lands) and their relations, including the basic regional institutions and institutions of the kingdom (the sovereign, the Estates, the Provincial Diets etc.).134 The question of Czech constitutional law combined scholarly–historiographic, legal and political aspects, being the basis of argumentation of Czech politicians striving to restore the Czech state in the latter half of the nineteenth century. The earlier concept of Austro-Slavism, addressing the position of Slavonic nations in the Habsburg monarchy, considered restoration of the Czech state within the existing Habsburg monarchy. Constitutional development was, however, accomplished by establishment of the dual Austro-Hungarian monarchy in 1867. The Czech Lands did not receive independence within the new constitutional structure and only became individual (administrative) regions represented in the Austrian Parliament – Imperial Council (Reichsrat). These

132 See Robert John Weston Ewans, The Making of the Habsburg Monarchy 1550–1700 (Oxford, 1998). 133 Jaroslav Pánek and Oldřich Tůma et al., A History of the Czech Lands (Prague, 2011), pp. 283–9. 134 On the general characteristics of provincial and Estates freedoms recently Winfried Eberhard, ‘Landesfreiheiten und Freiheit der Krone in den böhmischen Ländern 1547 und 1619. Zur Innovationsfähigkeit ständischen politischen Denkens’, Zeitschrift für Ostmitteleuropa-Forschung 57 (2008), pp. 62–80; Václav Bůžek and Zdeněk Vybíral, ‘Freiheit in Böhmen und Mähren zwischen Hussitismus und Dreißigjährigem Krieg’, in Georg Schmidt, G. et  al., eds., Kollektive Freiheitsvorstellungen im frühneuzeitlichen Europa (1400–1850) (Frankfurt am Main, 2006), pp. 239–50; Joachim Bahlcke, ‘‚Libertas’-Vorstellungen in der ständischen Gesellschaft Polens, Böhmens und Ungarns’, in Halina Manikowska and Jaroslav Pánek, eds., Political Culture in Central Europe (10th–20th Century). Part I: Middle Ages and Early Modern Era (Prague – Warszaw, 2005), pp. 163–77.

110  Jana Janišová and Dalibor Janiš

constitutional changes changed – or rather destroyed – legislation forming the constitutional basis of the Bohemian Crown. In the last decades of existence of the Habsburg Monarchy a fundamental discrepancy emerged between the progress of the Czech nation and its legislative position within the Austrian constitutional structure. On the political level the constitutional and nationalist requirements were followed by efforts at assertion of liberal civil rights, equality and freedom. The idea of an independent Czech state was only materialised in 1918 by establishment of Czechoslovakia, being, however, based on the concept of natural law (right of the nations to self-determination) and on the constitutional level rather based on the legislatively non-standardised Czech constitutional tradition than on a direct formal legislative relation to the earlier (mediaeval and early modern) Czech state – the Bohemian Crown Lands.135 While the concept of Czech historic constitutional law faced on the political level often incompatible ideas of the individual representatives or social groups and in the wider context also the reality of the Habsburg Monarchy and Europe of the nineteenth century, on the level of historiography it gave birth to more or less successful attempts at evaluation of the history of the Czech state and its legislative (constitutional) basis. In this context the first profound and critical evaluation of earlier documents concerning the legislative basis of the Czech state, regional and estate privileges or legislative codifications (especially Provincial Codes) was done.136 These works were followed by already modern syntheses of the history of Czech law, mainly focused on development of public law (ius publicum), that is, the history of constitution, public administration and judicature.137

Conclusion The privileges and freedoms carried in the Middle Ages and the early modern times by the aristocracy as the political ‘nation’ represent a theme to which Czech historiography has paid increased attention since the nineteenth century. This is because they were closely related to the constitutional efforts of the Czech political representation fulfilled by the establishment of the independent Czechoslovak state in 1918. In the early Middle Ages political rights of the emerging nobility were anchored in the political practice and in customary law. The key role was played by the right to free election of the Czech sovereign. The establishment of

135 Jiří Kořalka, Češi v habsburské říši a v Evropě 1815–1914. Sociálněhistorické souvislosti vytváření novodobého národa a národnostní otázky v českých zemích (Praha, 1996), pp. 83–137; Pánek and Tůma et al., A History, pp. 313–73. See also the individual contributions in the volume Karel Malý and Ladislav Soukup, eds., Vývoj české ústavnosti v letech 1618–1918 (Praha, 2006). 136 Hugo Toman, Das böhmische Staatsrecht und die Entwickelung der österreichischen Reichsidee vom Jahre 1527 bis 1848 (Prag, 1872); Kalousek, České státní právo. 137 Jaromír Čelakovský, Povšechné české dějiny právní (2nd edn., Praha, 1900); Jan Kapras, Právní dějiny zemí Koruny české (3 vols., Praha, 1913–1920); Bohumil Baxa, Dějiny práva na území republiky československé (Brno, 1935); František Čáda, Povšechné právní dějiny československé (Brno, 1947).

King, estates and the Czech Crown  111

the regional Estate community in the thirteenth century brought about the first written confirmation of liberties of the Estates in the form of the inauguration diplomas of John of Luxembourg of 1310 and 1311. The nobility and later the other Estates (royal towns and the clergy) created in the fifteenth and sixteenth centuries a powerful counterpart to the sovereign and thus the Bohemian state was governed by the dual power model, the so-called imperium mixtum. For the whole pre-White-Mountain period liberties and privileges were a source for settlement of conflicts between the Estates, between the Estates (the regional community) and the sovereign or between the individual lands of the Bohemian Crown, represented by the communities of Estates. The written privileges, however, cannot be considered a reflection of all legal and political principles on which the Estate system in the Czech Lands was based. Many of the elements of the Estate establishment only existed in the non-written, customary-law form and therefore often gave rise to the above-mentioned disputes between the Estates and the king. The Estate system had to face many upheavals (uprisings in Bohemia in 1547) and ceased to exist after the defeat of the uprising of the Estates in 1620, when the dual model of power distribution between the king and the Estates was replaced with the state model connected with the emerging absolutism.

112  The Czech sources

The Czech sources The selected legal sources for the history of liberties and freedoms in the Czech lands (from the thirteenth to the seventeenth centuries)1 Jana Janišová – Dalibor Janiš The Golden Bull of Sicily – 1212, September 26th, Basel The privilege of Emperor Friedrich II of Sicily (1212–1250) granted to the Bohemian King Přemysl Otokar I (1192–1193, 1197–1230) for the first time explicitly stipulated the relationship between the Czech lands and the Holy Roman Empire. The Emperor, inter alia, confirmed the heredity of the Bohemian royal title, the free choice of the ruler in the Kingdom of Bohemia and also the integrity and borders of the Czech state. Edition: Václav Hrubý, ed., Archivum Coronae regni Bohemiae, I: 1086– 1346 (Pragae, 1935), pp. 6–8, n. 3 (an original Latin text). we also inaugurate and confirm him King thus approving his holy and dignified inauguration. We grant him and his successors the Kingdom of Bohemia [ . . . ], wanting each of them [i.e. the Czech nobility] who will be elected King to come to us or our representatives and accept the royal insignia in an appropriate manner. We also permit him and his successors to keep all boundaries belonging to the Kingdom however alienated. We also grant him and his heirs right and power to inaugurate bishops in his kingdom.

Inaugural diplomas of King John of Luxembourg – 1310/1311 The newly elected Bohemian King John of Luxembourg (1310–1346) confirmed to the Bohemian and Moravian nobility and clergy their rights and customs. They included the basic privilege in the context of provincial freedoms and freedoms of the Estates. The translation is based on the original privilege granted to the Moravian nobility on 18 June 1311. Edition: Rudolf Koss, Zur Kritik der ältesten böhmisch-mährischen Landesprivilegien (Prag, 1910), pp. 87–92, n. 1 (an aristocratic proposal

 1 The study was implemented with generous support of the Grant Agency of the Czech Republic (Grantová agentura České republiky) as part of Grant Project No P405/12/0639.

The Czech sources  113

of the privilege); pp. 92–4, n. 2 (an original copy for the Moravian nobility of 1311, June 18th, Brno); pp. 94–96, n. 3 (a confirmation of the privilege for the Czech nobility of 1348). We, John, [ . . . ], promise to all princes, spiritual and secular, barons, aristocrats, clergy and all those who are subordinate to our power in our kingdom, in Bohemia and Moravia, to firmly adhere to all their rights and customs taken over from us and our predecessors and to keep them intact. We also want this seal to confirm all their privileges received from our predecessors. [ . . . ] we promise out of our lenience not to collect any taxes or collections called “ber”,2 with the exception of our weddings or weddings of our children, i.e. sons and daughters. In these cases only we may collect tax from them. Further, to make citizens of our kingdom to be obedient we promise them that no office called “suppe” 3 in Moravia will be entrusted to anyone but a native-born Moravian. In addition, in reply to the general request of parents that their heritage be passed onto their offspring, we generously agree with these estates, if to be passed onto us, to be passed onto their children, i.e. sons and daughters, or sons of brothers, up to the third generation. Let the only exception be confiscations for crimes in which case the estates will be passed onto our chamber. [ . . . ] we further stipulate, out of lenience, [ . . . ] that princes, barons and nobles of our Kingdom of Bohemia and Margraviate of Moravia, who loyally promised to help us defend the borders of the Kingdom of Bohemia and Margraviate of Moravia against anyone, are not bound to participate in conquering any foreign country against their will. And finally as concerns tax, generally called “ber”, they will only be collected in the aforementioned cases and in addition on the occasion or our coronation as King of Bohemia. We do not wish its amount to exceed one lot4 of silver from one hide.5

Compacts of Basel – 1436, July 5th, Jihlava The Compacts of Basel were the outcome of negotiations between the 17th Ecumenical Council in Basel and the Bohemian Utraquists and officially announced in the Moravian royal town of Jihlava. The Compacts

 2 Ber, i.e. berně (from the Czech verb bráti (= take)), a general tax paid sovereign over the country.  3 Suppa (from the Czech (Slavic) noun župa), an office joined with incomes (beneficium).  4  Lot, weight measure (Bohemian lot = 16.056 g; Moravian lot = 17.5 g).  5 Laneus, in Czech lán, hide, measurements in the Czech lands from 44 to 67 acres.

114  The Czech sources

in their adapted form approved the basic Hussite programme, i.e. the Four Articles of Prague of 1420. The Compacts assured the legal coexistence of two religions – Catholic and Utraquist – in Bohemia and Moravia in the fifteenth and sixteenth centuries. Edition: František Palacký, ed., Archiv český, III (Praha, 1844), pp. 398–412, 421–426, 442–444; František Šmahel, Basilejská kompaktáta. Příběh deseti listin (Praha 2011), pp. 99–124 (critical notes on the text). As concerns the content of the first Article [concerning receiving Communion under boths kinds] the following has been agreed: The abovementioned Bohemians and Moravians, who actually acknowledge religious unity and peace and who conform to the faith and customs of the general church, except for the method of the Holy Communion, will practice Holy Communion under boths kinds in the manner stipulated by Jesus Christ our Lord, and the Church, his genuine bride. [ . . . ] The ambassadors of the Holy Council will command out of the power of the Holy Council that all individuals of whatever estate or title refrain from preventing these Bohemians and Moravians from practising their Holy Communion under boths kinds as stated, from reproaching them for this and from insulting their dignity in any manner whatsoever. The same will be done by the Holy Council after announcing the right to free selection of the method of the Holy Communion as mentioned above. [ . . . ] As for sin prosecution and punishment [ . . . ] We therefore insist that following the wording of the Holy Scriptures and teachings of holy doctors the below is to be preserved by the Christians: All deadly sins, especially those manifested publicly, must be prosecuted, punished and eradicated according to the Divine Law and provisions of holy doctors in a reasonable scope. However, the power to punish sinners does not belong to private individuals but to those with jurisdiction over them [i.e. the sinners] and their courts according to the legislative stipulations and the rule of justice. As for spreading the Gospel, we [i.e. the Bohemian Utraquists] have compiled an article of the following wording: “Let the Gospel be freely and openly advocated by priests and duly appointed deacons.” It needs to be assured that the word “freely” is not understood as unbound and harmful freedom which even you do not want, as you have stated multiple times. We insist that according to the words of Divine Law and the teachings of holy doctors the following is to be observed: The Gospel is to be spread by experienced and competent priests and deacons of the Lord to be appointed by their superiors. They should deliver their sermons orderly and sincerely and defend the authority of the Pope, who

The Czech sources  115

according to the teaching of Church Fathers is the first in the governance of all things. [ . . . ] clergymen not belonging among monks or who have not bound themselves to be monks by promise, can possess estates, the heritages of their fathers or other persons, if bequeathed to them, and further properties acquired by legal ways, i.e. by donation, purchase or craft operation. Second: the church can possess and hold estates, movable and real, houses, yards, villages, towns, castles, cities in private and secular ownership. [ . . . ] ecclesiasts are to duly administer church properties entrusted to their administration by stipulations of the Holy Fathers. Church possessions should not be held or claimed by other persons against the letter of the law. [ . . . ] As only when all struggles in the questions of faith are ended in God´s mercy and the beneficial peace commences for the preservation of which much efforts must be exercised, both parties must refrain from all manifestations of violence. This also concerns other cases not related to faith [ . . . ]. Let these disputes end in amicable agreement [ . . . ]. Ambassadors of the Holy Council will provide all guarantees for the peace to be confirmed and preserved. The Holy Council will arrange the compilation of special charters issued by the Council for all governors and surrounding communities [i.e. states]. The ambassadors will also arrange for other necessary matters and issue charters with seals for the Kingdom of Bohemia and Margraviate of Moravia. Peace will be announced and instructions will be issued for its observance. All necessary for the assurance of the peace and unity will be pursued.

Great Privilege of Freedoms of Sigismund of Luxembourg – 1436, July 20th, Jihlava The Holy Roman Emperor and Bohemian King Sigismund of Luxembourg (1419–1420, 1436–1437) confirmed to the Bohemian and Moravian Estates their older provincial privileges and privileges of the Estates. Electoral capitulation allowed Sigismund after the Hussite Wars and religious armistice (see no. 3) to return to the Bohemian throne, from which he had been removed by the Hussites in 1420. Edition: František Palacký, ed., Archiv český, III (Praha, 1844), pp. 446–9, č. 21. In the name of the Lord, Amen. We, Sigismund [ . . . ]. 1. First that the Kingdom of Bohemia executed contracts with the Holy Council of Basel and its legates. We will observe these contracts and our successors will too, especially as concerns

116  The Czech sources

prosecution of all publicly committed deadly sins in the country [ . . . ]. 8. The Bohemian Crown, charters, privileges and land and court registries6 and other jewels of the Czech Kingdom which we exported abroad from Bohemia will be kindly returned and we wish them to be returned. All this is to be stored, with consent of the council [the Estates], in one place in Bohemia to be preserved here for us and for future Bohemian Kings. 9. We further want to kindly confirm to them [i.e. the Estates] their freedoms, orders, rights, privileges and charters. We wish to comply with all this. [ . . . ] 12. We further want the Bohemian offices to be staffed with Bohemians and not with foreigners. In the surrounding countries belonging to the Kingdom of Bohemia [i.e. Moravia, Silesia and Lusatia], what has been stipulated in the charters and privileges of our father in glorious memory [i.e. Charles IV]7 and other Bohemian kings is to be observed. [ . . . ] all of the above is hereby promised to the lords, to Prague, to knights, to esquires and to the towns of the Kingdom of Bohemia and Margraviate of Moravia by our imperial word to be strongly observed without violations.

The liberty of the Margraviate of Moravia (article from the Tovačov Lawbook, fifteenth century) The lawbook of the Moravian Lord Lieutenant Ctibor of Cimburk and Tovačov8 in one of its articles stipulates the autonomous position of Moravia within the Lands of the Czech Crown. Edition: Karel Josef Demuth, ed., Kniha Tovačovská aneb Pana Ctibora z Cimburka a z Tovačova zemského hejtmana markrabství Moravského sepsání obyčejů, řádů, zvyklostí starodávných a práv markrabství Moravského (Brno, 1858), pp. 26–7.

 6 Land registry, in Czech zemské desky (literally Land tables), special legal manuscripts including 1. the land registry of real estates owned hereditary, 2. resolutions of the Land Diet and 3. decisions of the Provincial Court. Court registry, in Czech dvorské desky (literally Court tables), special legal manuscripts including the registry of royal feuds and decisions of the Royal Court.  7  The Bohemian King Charles IV (1346–1378, Roman Emperor from 1355).  8 The Lord Lieutenant (in Czech zemský hejtman, in German Landeshauptmann), supreme provincial official, the representative of the King in the Margraviate of Moravia. Ctibor of Cimburk and Tovačov, a member of the important Moravian noble family, was the Moravian Lord Lieutenant in 1469–1494.

The Czech sources  117

The Margraviate of Moravia is free. As follows from the aforementioned old customs, this country has always been free, however separated from the Kingdom [of Bohemia] and the [Czech] Crown in the past, and has never been subject to any other sovereign or country. Like the Bohemians, the lords, knights and clergy do not take oath to their ruler [i.e. the King of Bohemia]. They only make a simple promise of obedience to their sovereign and his legal heirs and only in their country, in Moravia, and nowhere else. The promise is also made by the towns, in addition to the oath according to the custom. The country also has its independent law without any obstacles granted by its sovereign without the option of appeal [by the Provincial Court] to the Emperor or the King.

The Letter of Disposal of Royal Chamber property – 1499, November 12th, Bratislava (Preßburg) The Bohemian King Vladislaus II of Jagiellon (1471–1516) promised, also in the name of his successors, to the Bohemian Estates that without the advice and consent of the Bohemian Provincial Diet he will not pledge, donate or sell any estates belonging to the royal chamber and situated in the lands of the Czech Crown. Edition: František Palacký, ed., Archiv český, V (Praha, 1862), pp. 500–501. We, Vladislaus, [ . . . ] including the future Bohemian Kings, will not henceforth from the present day pledge any of the royal property, donate to heirs, or lend any amounts [of money] or extend the existing loans. We will not do this without the consent of the whole Bohemian land. Also, the castles we hold today and will hold in the future will not be burdened with any legal burden in favour of anybody. If we or any future Bohemian kings want to pledge any castles, cities, towns or villages for the sake of the country, we will only be able to do this with the advice and consent of the whole country and not in any other way. If we or our successors, Kings of Bohemia, pledge anything without the advice and consent of the whole country, then all these donations, sales, pledges, leases and cash loans are hereby announced invalid forever. All royal charters issued in the aforementioned matters for anybody, are and will be null and void. At the same time, we and our successor Bohemian Kings are entitled to pay off pledged royal estates, but only with the amounts stipulated by the respective pledge contracts. These pledges may not be extended by us nor are we entitled to borrow additional money with these pledges estates as collateral.

118  The Czech sources

The Letter of Majesty on the unity of the Czech crown – 1510, January 11th, Prague The Bohemian King Vladislaus II of Jagiellon confirmed to the Bohemian Estates older privileges of Bohemian Kings and the integrity of the lands of the Czech Crown. Edition: Josef Kalousek, České státní právo (2nd edition, Praha, 1892), pp. 574–6. We, Vladislaus, [ . . . ] announce to all by this charter that we have carefully studied the liberties and privileges of the Kingdom of Bohemia to learn that the Emperor and Bohemian King, our great grandfather, the glorious Emperor Charles IV,9 extended the Czech Crown in his time as the sovereign of Bohemia. The Margraviate of Moravia, the Upper and the Lower Silesian Princedom, the Margraviate of the Upper and the Lower Lusatia and other territories in the German lands were forever annexed to the Kingdom of Bohemia. These lands are to be preserved in unity and integrity with the Kingdom of Bohemia without any interruption or alienation by the Bohemian Kings in compliance with the aforementioned privileges and charters. [ . . . ] and we, for good and proper reasons, have decided as follows: Lands belonging to the Kingdom of Bohemia may not be separated and alienated. Also, the royal castles and incomes belonging to the Kingdom may not be separated or alienated by us or any future Bohemian Kings, as already confirmed by royal charter [see no. 5]. [ . . . ] To assure that the aforementioned lands and princedoms remain part of the Czech Crown without change, the offices of governors10 in these lands [ . . . ] should only be occupied by Bohemians and no other nations or languages.

Lex fundamentalis (Freedoms of Estates) of Ferdinand I – 1526, December 15th, Prague Newly elected Bohemian King Ferdinand I of Habsburg (1526–1564) confirmed to the Bohemian Estates the rights and liberties of the Kingdom of Bohemia. Edition: Sněmy české od léta 1526 až po naši dobu. I. 1526–1545 (Praha, 1877), pp. 272–4, n. 189 (original Latin text); Josef Kalousek, České státní právo (2nd edition, Praha, 1892), pp. 579–80.

 9  The Bohemian King Charles IV (1346–1378, Roman Emperor from 1355). 10 Hejtman, Hauptmann, i.e. royal official; representative of the sovereign in the country. See note 8.

The Czech sources  119

We, Ferdinand, [ . . . ], announce to all by this charter: We have promised that the validity of the compactata agreed and concluded between the Hole Council of Basel and the glorious Kingdom of Bohemia and Margraviate of Moravia will be reestablished and actually observed [ . . . ] and if anybody might want to be against it we [i.e. the king] are liable to protect them against each such person. We will also agree with the Holy Father the Pope about them to be truly confirmed to the Bohemians and the Moravians. [ . . . ] We have further promised to keep and protect the Czech Crown and also to observe the rights, orders, privileges, freedoms, stipulations and donations and all other good old customs belonging to the lords, knights, cities of Prague and other towns and the whole community of the Kingdom. We especially want to comply, until our death, with all charters issued by the glorious King Otokar, King John, Emperor Charles, King Wenceslas, Emperor Sigismund, King Albrecht, King Ladislaus, King George and King Vladislaus.11 We wish to observe and protect them without resistance and confusion. [ . . . ] We have further promised to take sovereign power over the Kingdom of Bohemia and to preserve the ancient rules and customs of the Kingdom of Bohemia. We have further promised not to inaugurate foreigners in provincial, court, municipal and church ecclesiastical and secular offices but only Bohemian nationals. We will not donate or entrust to foreigners for administration any castles or towns of the Czech Crown. This may only be done with advice [of the Estates]. [ . . . ] We have further promised to preserve for each of the Estates [i.e. lords, knights, towns] their rights, orders, privileges, liberties, customs, donations etc. as they belong to each of them.

The liberty of the Provincial Court in the Margraviate of Moravia (an article of the Moravian Provincial Code from 1545) In 1545, the Moravian Estates issued new Provincial Code, including an article on the powers of the Provincial Court of Justice. The autonomy

11  The Bohemian Kings: Přemysl II Otokar (1253–1278), John of Luxembourg (1310– 1346), Charles IV (1346–1378, Roman Emperor from 1355), Wenceslas IV (1378–1419), Sigismund of Luxembourg (1419–1420, 1436–1437, Roman Emperor from 1433), Albrecht II of Habsburg (1437–1439), Ladislaus the Posthumous (1453–1457), George of Poděbrady (1458–1471) and Vladislaus II of Jagiellon (1471–1516).

120  The Czech sources

of the Provincial Court and free legislation reflected the autonomy of the Margraviate of Moravia. Edition: Dalibor Janiš, ed., Práva a zřízení Markrabství moravského z roku 1545 (Pokus moravských stavů o revizi zemského zřízení) (Brno, 2005), p. 107, art. 5. About Liberty in the Provincial Court of Justice This liberty consists in that the [lords sitting in court] are not governed in their decisions with the written law but only with their ancient legal customs. And further also with what the parties to the dispute submit to the court, on the basis of which they will tell truth from the lie and find justice. They will only judge on the basis of their opinion and good conscience. They can change, cancel or amend provisions of their [provincial] law as free men but only on condition of general accord. Important matters also require consent of the King. Under the rule of King George12 the lords began to take an oath, which had not been required before. And this was established for good reasons. The lords are also granted the liberty to provide legal advice to other countries, which will be explained in detail below.

The liberties of Estates in the Kingdom of Bohemia (an article from the Resolution of the Bohemian Provincial Diet – 1547, March 17th, Prague) The Bohemian Estates assembled at the Provincial Diet in Prague in 1547 adopted a resolution including a number of points limiting royal power. The uprising of the Estates was defeated, though, and the militant members of the Estates were punished by King Ferdinand I of Habsburg in the same year. Edition: Sněmy české od léta 1526 až po naši dobu, II: 1546–1557 (Praha, 1880), pp. 154–5. About the Freedom of the Estates in the Kingdom of Bohemia As our liberties are great, His Majesty the King should only apply against any citizen of any Estate in the Bohemian Kingdom in any matter (including outright rebels and criminals) legal means in front of the competent Provincial Court of Justice or another court of justice. Depending on which court has been competent to decide

12  The Bohemian King George of Poděbrady (1458–1471).

The Czech sources  121

in the matter of the person since times immemorial. Also, every citizen [i.e. member of Estates] of this Kingdom can file a petition to the Provincial Court against His Majesty the King. And so His Majesty the King shall not sanction any citizen belonging to any of the three states [i.e. lords, knights and royal towns], but shall proceed according to the letter of the law as stipulated. The decisions of the court of justice shall be respected both by His Majesty the King and the other party to the dispute. [ . . . ] About Provincial Diets If His Majesty the King wants to summon the Provincial Diet, all Articles should be entered in the letters summoning the Diet, explicitly and comprehensibly. This is to make clear what the Diet will deal with. The letters shall be sent to all Estates of the Kingdom of Bohemia for the individual regions to be able to appoint their representatives to personally attend the Diet. [ . . . ] His Majesty the King shall not issue any mandates or orders affecting the rights and privileges of the Estates against the decisions of the Provincial Diet and against the liberties of the Estates.

The Letter of Majesty on religious freedom – 1609, July 9th, Prague Holy Roman Emperor and Bohemian King Rudolf II (1576–1611) confirmed the freedom of faith to the Bohemian Estates. This also applied to non-privileged villeins. Protestants had their Bohemian Confession (Confessio Bohemica) confirmed in the form promised orally by Rudolf´s father, Holy Roman Emperor and King Maximilian II (1564–1576), in 1575. Until then only the Utraquist religion was legal (see no. 3, 4, 8); other non-Catholic faiths were not. On 20th August 1609 Rudolf II issued a similar Letter of Majesty for Silesia. Edition: Jiří Just, 9. 7. 1609 Rudolfův majestát. Světla a stíny náboženské svobody (Praha, 2009), pp. 133–41. We, Rudolf the Second, [ . . . ] And we wish this Kingdom to be governed with love, concord, peace and good understanding among all three Estates for now and for future times, both those who practice the Holy Communion with consecrated bread only and those who take the consecrated bread and wine, as often mentioned, our loyal and kind subjects. To develop and preserve general peace, every party should be allowed to practice its religion whose redemptive power it confesses and believes in freely and without constraint. [ . . . ] And as the party receiving the Holy Communion of consecrated bread only practises its religion freely and without constraint and

122  The Czech sources

the party receiving the Holy Communion of consecrated bread and wine does not prevent the former from this, let this be equal for both parties. That is why we grant our permit and right to the aforementioned unified Estates receiving the Communion of consecrated bread and wine, i.e. the lords, the knights including Prague, Kutná Hora and other cities and their villeins [ . . . ] to be free to practice their Christian religion in any place [ . . . ] with preservation of their clergy and church orders they preserve and will preserve among themselves [ . . . ]. Also, none of the higher free Estates should be deprived of their religion from today on. Also, Lords of the Land, spiritual and secular, should not interfere in this against cities, towns and rural villeins. Nobody may be forced to adopt the religion of the other party. [ . . . ] No measure against the aforementioned religious peace and the provisions concerning the Estates receiving the Communion of consecrated bread and wine may be taken by us and our successors, Bohemian Kings, that might create the slightest obstacle to or change of this status. Any such provision is hereby claimed to be null and void. For this reason we also cancel any previous orders and mandates against the party receiving the Holy Communion of consecrated bread and wine and claiming to be the Bohemian Confession.

The Second Apology of Bohemian Estates (1618) A political paper issued by the Protestant Bohemian Estates as a defence of their uprising against the Emperor. The Catholic party was accused of violating the Letter of Majesty on religious freedom (no. 11), of adopting illegal measures against the Protestants, of influencing the Emperor and of preparing a coup against non-Catholics. The first version was printed in May, the second, extended version in December 1618. Edition: Vácslav Šubert, ed., Apologie druhá stavův Království českého, tělo a krev Páně Ježíše Krista pod obojí spůsobou přijímajících (Praha, 1862), pp. 1–6. [Bohemian Estates defend their attitudes:] I. All the Estates did at that given moment was done out of necessity due to the great and unbearable oppression and injustice in their Christian religion and to avert future evils and even worse matters. II. The Estates never even considered any new developments or changes offending the Royal Majesty.

The Czech sources  123

But one thing is well known and that is that the inhabitants of this country have always had two different confessions. One party receives their Holy Communion of consecrated bread while the other party receives the Communion of consecrated bread and wine. For this reason the following was stipulated in the Land Code in the previous years: As for the two religions with Holy Communion of consecrated bread and wine or bread only, they should never oppress each other and should always be one as good friends. One party should not defame the other and they should not act to their mutual public disgrace. His Majesty the King on his coronation has publicly sworn to all Estates of all religions and promised to observe all orders, rights, privileges, liberties and good old customs. According to this, the ancestors of the party receiving the Communion of consecrated bread and wine have always behaved as if the other party were their close relatives and friends. And this is still true today. Although the number and power of the Estates belonging to the party receiving the Communion of consecrated bread and wine have always been weaker, none of them have ever tried to violate the Provincial Code to the detriment of the party receiving the Communion of consecrated bread only.

The Bohemian Confederation – 1619, July 31st, Prague The Bohemian Confederation was accepted by the Protestant Estates at the General Assembly of the lands of the Czech Crown as the basic law of the Czech Crown. The main principles included freedom of religion stipulated by the Letter of Majesty of 1609 (see no. 11), and further, the principles of equality of lands and election of the king. The confederation was established as a consequence of the uprising of the Estates and ceased to apply after its defeat in 1620. Edition: Minulost našeho státu v dokumentech (Praha, 1971), pp. 112–32. 1. For the Almighty Lord to grant his mercy and blessing, for this unity was concluded mainly for the sake of protection of the religion. For this reason the individual lands have agreed that all individuals belonging to the Christian Protestant community shall act in compliance with their Protestant belief and lead a Christian life without visible sins, offences and hypocrisy. [ . . . ] 7. Above all the King shall confirm without any reservations and secondary interpretations all charters and permits concerning religion. 30. If the King, despite all our hopes, decide to do anything against the free practise of religion and against the unity and this

124  The Czech sources

confederation and these lands are thus forced to defend themselves, then all Estates of these united kingdoms and lands will immediately be absolved of their oaths. None of what they will choose to do after that shall be considered an insult to the royal majesty.

The basis of absolutism in the Renewed Provincial Code – 1627/1628 Holy Roman Emperor and Bohemian King Ferdinand II of Habsburg (1617–1618, 1620–1637), after the defeat of the Bohemian Estates uprising in 1620, issued revised Provincial Code – Verneuerte Landesordnung (Bohemia 1627, Moravia 1628). This code closed the process of changes to the governmental system, restricted liberties of the Estates and stipulated an absolutist regime. The code applied as the basic constitutional law until 1848. Edition: Hermenegild Jireček, ed., Obnovené právo a zřízení zemské dědičného Království českého 1627 (Praha, 1888), pp. 8–19, 32–5. A.I. Concerning Inheritance of the Czech Throne [ . . . ] The Kingdom of Bohemia and its related countries were clearly brought to sorrow and poverty by the recent uprising. The hereditary right of the royal dynasty [i.e. Habsburgs] was unjustly questioned and a new king was elected illegally.13 As follows from the aforementioned Golden Bull14 and other privileges in their original sense, the Estates and other citizens of the Kingdom of Bohemia are not entitled to elect the King if any heir of the royal dynasty is alive, whether of male or female gender, or if his or her birth is expected. The election is only allowed if the heir waives his or her right to the throne, and/or if the heir is not mentally capable to reign [ . . . ] and has no offspring or hope for any offspring. [ . . . ] And therefore we establish and order that if anybody of our subjects of any Estate, position or profession now or in the future attempts an illegal election of the sovereign [ . . . ] he or she shall be deemed an offender with the crime of insult of the royal majesty and the crime of rebellion and shall be punished with loss of honour, life and property. A.IV. How Provincial Diets are to Be Held Only we and our successors, the Bohemian Kings, possess the right to specify the date of the General Provincial Diet and also

13  Frederick V of the Palatinate, King of Bohemia 1619–1620. 14  See charter no. 1 and its confirmation – a charter (Golden Bull) of the Bohemian King Charles IV from 7th April 1348 – Václav Hrubý, ed., Archivum Coronae regni Bohemiae, II: 1346–1355 (Pragae, 1928), pp. 43–7, n. 51.

The Czech sources  125

Regional Diets. Nobody else may try to summon a Provincial Diet in the Kingdom of Bohemia [ . . . ] without our permission or the permission of our successors [ . . . ]. Whoever attempts this shall be deemed an offender with the crime of insult of the royal majesty and shall be punished with the loss of honour, life and property. A.VI. Only we and our royal heirs and in our absence our royal delegates (appointed by us for that purpose) shall hold the powers and the right to submit propositions to the Provincial Diet. Nobody else, despite his or her position, shall submit such proposals without our special permission and shall not present anything else, whether orally or in writing, to the Assembled Estates [ . . . ]. A.VIII. We also specifically reserve the right for ourselves and our heirs, future Bohemian Kings, to create law and order in this hereditary Kingdom of Bohemia and do other things belonging to ius legis ferendae, belonging to us as the King. A.XXIII. About Religion As for religion, it is well known that religious differences in this our Kingdom caused wars and other trouble in the past. The Estates receiving the Communion of consecrated bread and wine, under the pretence of protection of their privileges and laws, obtained in whatever way, initiated the most revolting rebellion against us. And when we captured this kingdom [ . . . ] back by military power [ . . . ] we ordered as follows: We order and want [ . . . ] all to the detriment of our Holy Catholic Religion in the form of charters, resolutions of the Provincial Diet, confirmations, privileges and other regulations [ . . . ] to become null and void forever. All who would like to claim anything of this and deal with it again should be considered disruptors of public peace and order and as such should be punished with the loss of honour, life and property. Nobody not being a Catholic should be let in the country or its towns and cities. PREAMBLE TO THE CONSTITUTION OF THE CZECH REPUBLIC OF DECEMBER 1992 Edition: Ústavní zákon č. 1/1993 Sb., ze dne 16. prosince 1992, Ústava Esker republiky (Sbírka zákonů České republiky, Vol. 1993, Section 1, p. 5). We, the citizens of the Czech Republic in Bohemia, in Moravia, and in Silesia, At the time of the restoration of an independent Czech state, Faithful to all good traditions of the long-existing statehood of the lands of the Czech Crown, as well as of Czechoslovak statehood, Resolved to build, safeguard, and develop the Czech Republic in the spirit of the sanctity of human dignity and liberty,

126  The Czech sources

As the homeland of free citizens enjoying equal rights, conscious of their duties towards others and their responsibility towards the community, As free and democratic state founded on respect for human rights and on the principles of civic society, As part of the family of democracies in Europe and around the world, Resolved to guard and develop together the natural and cultural, material and spiritual wealth handed down to us, Resolved to abide by all proven principles of state governed by the rule of law, Through our freely-elected representatives, do adopt this Con­ stitution of the Czech Republic


1. Introduction The development of the nobility’s privileges, and consequently the growth of rights of the nobles in old Poland, had an enormous impact on the country’s constitutional system, as it generated the mechanisms and legal guaranties of the nobility’s monopoly in the exercising of public power. However, the tendency – characteristic of earlier historiography – to limit the significance of the privileges to the impact that they had on shaping the nobility’s hegemony suffers from a certain simplification. The opinion has been prevalent for many years now that the constitutional dominance of the nobles was pernicious to the state since it led to a weakening of central power, and consequently to its paralysis, due inter alia to the negative phenomena detectable in the activities of the Sejm since the beginning of the seventeenth century. While being aware of these negative phenomena, we often forget that this much-criticized Noble Republic, despite the lethargy of its central organs, survived and successfully coped with the seventeenth century’s threats to its frontiers and the wars that it had to wage at that time. Likewise, the Republic was capable, through the Relief of Vienna, of rescuing Europe from the Turkish invasion. The noble character of old Poland did not impede the development of its constitutional system along the lines of what might be called the nucleus of the State of Law (Rechtsstaat).1 The history of the Republic’s constitutional shape before its partitions has been repeatedly explored in detail. Many eminent legal historians have attempted to

  1 H. Olszewski, ‘Polska droga do państwa prawa. Refleksje o kulturze prawnej’ in H. Olszewski, Sejm w dawnej Rzeczypospolitej. Ustrój i idee, vol. 2, Poznań 2002, pp. 524–525.

128  Dorota Malec

depict the nobility’s privileges.2 However, the earlier literature did not provide a full and comprehensive view of all the privileges, nor did it make an attempt to evaluate their significance in their entirety. In recent years it was only Wacław Uruszczak who, as a legal historian, embarked upon a project designed to work out a more comprehensive view of the problem.3 In the previous, often simplified assessment of the significance of the nobility’s privileges, the latter were blamed for weakening royal power and, in the longer term, for causing negative constitutional effects. In that context, historians forgot that the scale of the rights exercised by the Polish nobles was an important magnet that made the union of Lithuania with the Polish Crown so attractive to the Lithuanian and Ruthenian boyars, and after the Union of Lublin of 1569, facilitated the eventual transformation of the state into the Republic of Two Nations.4 It is worth studying the formation of the constitutional principles of old Poland without prejudice. This may be done by applying the European comparative scale for the assessment of the constitutional principles and civil rights in question. The anniversary of the drafting of the Magna Carta provides a good opportunity to view the problem from a broader perspective, and to re-emphasize the fact that in the area of laying the foundations for civil liberties, Poland was not lagging behind, although the liberties that it guaranteed were limited to those enjoyed by the nobles, i.e. to a certain segment of the society of the time. It is already at that point that we should emphasize the particularly early establishment of the rule of personal and property inviolability as guaranteed by the privileges conferred on the estate under discussion. In the Middle Ages the granting of such privileges would not have been possible had there not been the earlier freedom from taxation awarded to the Polish nobles. The freedom had a large impact on establishing the Sejm, as well as the competence of the latter. This observation points to the express analogy between the role played by the provisions of Magna Carta and the influence of these provisions on the rights of the English Parliament to impose taxes, and the significance of the Košice and Nieszawa privileges for the constitutional developments in Poland.5

  2 Among others, M. Handelsman, ‘Przywilej piotrkowski z 1388 r.’, Przegląd Historyczny 1907, vol. 4; K. Goźdź-Roszkowski, ‘Z badań nad nietykalnością majątkową polskiej szlachty. Postanowienia przywilejów z lat 1386-1454’, Studia z Dziejów Państwa i Prawa Polskiego, Kraków – Lublin – Łódź, vol. X; S. Kutrzeba, ‘Przywilej jedlneński i nadanie prawa polskiego Rusi’ in Księga Pamiątkowa ku czci Bolesława Ulanowskiego, Kraków 1911; J. Matuszewski, Przywileje i polityka podatkowa Ludwika Węgierskiego, Łódź 1983; A. Prochaska, ‘Przywilej czerwiński z 1422 roku’, Przegląd Historyczny 1907, vol. 4; S. Roman, ‘Konflikt prawno-polityczny 1425–1430 a przywilej brzeski’, Czasopismo PrawnoHistoryczne 1962, vol. 14; S. Roman, Statuty Nieszawskie, Wrocław 1957; P. Skwarczyński, Z badań nad przywilejami ziemskimi budzińskim i koszyckim, Lublin 1936; Wenceslas J. Wagner, Polish law through the ages: 1000 years of legal thought in Poland, Stanford, 1970.   3 W. Uruszczak, ‘Species privilegium sunt due, umum generale, aliud special. Przywileje w dawnej Polsce’, Studia z dziejów państwa i prawa polskiego, vol. XI, 2008, pp. 19–38. This work has been used as the basis for preparing the present paper.   4 W. Uruszczak, Species . . . p. 26.   5  C. Kosikowski, E. Ruszkowski (red.) Finanse publiczne i prawo finansowe, 3rd ed., pp. 47.

Nobility’s privileges and civil liberties in old Poland  129

2. The types of privileges introduced in old Poland: their legal characteristics As throughout Europe at the time, the development of rights and the guarantees arising from them in Poland were bound up with the attempts of the privileged estate to influence the scope and competence of central power which frequently, in return for the support rendered to it, was determined to make some concessions for the benefit of some individuals, and sometimes the larger groups or estates into which society was divided. In old Poland the privileges played a significant role as both a source of law and an instrument of policy. Likewise they stimulated economic changes and were an important element of the Treasury’s income.6 Historians agree that the starting point in the construction of the Noble Republic’s constitutional system was the Košice Privilege of 1374. This was issued by Louis d’Anjou, King of Hungary, in order to secure the succession to the throne of Poland for one of his daughters.7 However, we should remember the line along which the earlier monarchical privileges had evolved in Poland. They started with the privileges conferred on individuals. These became popular during the period of feudal disintegration, and were mostly issued for the benefit of individual persons and organizational units. The beneficiaries were usually secular landlords, Church units, towns or the Jewish population.8 The largest group of the individual privileges were those of the immunity type, including authorizations to those whom they were granted to found towns and villages. Although they were conferred on the individually designated parties, they regulated in a permanent way the legal status of a larger group of people. The first privileges of the Piast ruler’s epoch were treated as personal obligations assumed by the monarch. Therefore, a change on the throne deprived the privilege of its binding force.9 The new ruler could, however, reconfirm the privilege, which he frequently did in return for a fee paid to him on that occasion. In the course of time it became a regular practice to submit the privileges issued by his predecessors to the new ruler and request that they should be confirmed.10 The group of individual privileges included numerous immunity privileges that exempted those on whom they were conferred from the burdens of the ius ducale, or awarded those privileged the right to assume jurisdiction on the territory covered by the immunity. The scope of the privileges could vary; they could be of an individual or general nature.The latter could apply to a larger group or have a larger territorial reach. In this last group the provincial privileges are those that deserve some attention. These were granted to a specific estate (nobility, clergy, townsmen) inhabiting the area of an entire

  6 W. Uruszczak, ‘Species privilegium sunt due, unum generale, aliud special. Przywileje w dawnej Polsce’, Studia z dziejów państwa i prawa polskiego, vol. XI, Kraków – Lublin – Łódź 2008, p. 20.  7 J. Matuszewski, Przywileje i polityka podatkowa Ludwika Węgierskiego, Łódź 1983, p. 12.  8 J. Bardach, Historia państwa i prawa Polski, t. I do połowy XV w., Warszawa 1964, p. 160.   9 W. Uruszczak, Species . . . p. 21. 10 W. Uruszczak, Species . . . p. 21.

130  Dorota Malec

province (land). The first among this type of privileges was the one issued by Prince Władysław Laskonogi in 1228 at Cienia, which applied to the Cracow Province. In the Privilege the Prince obligated himself to observe the privileges and to govern in compliance with the advice given to him by the feudal lords and bishops. He also promised to refrain from oppressing anybody and levying taxes that were not owed. It is worth noting that from the mid-thirteenth century, it became a customary norm that without the consent given by the landlords, usually at the wiec (a provincial rally), no taxes should be levied.11 The next significant Privilege granted to an entire province was that issued in 1291 at Lutomyśl. It was issued by Wacław II for the Cracow and Sandomierz Provinces.The ruler made the grant on the occasion of his assuming power in Małopolska. What is worth emphasizing is the difference between the addressees of the two Privileges. While the Privilege of Cienia applied to the feudal and spiritual lords, the one issued at Lutomyśl applied also to townsmen.This last Privilege also contained a promise by the ruler to abstain from levying new and non-owed impositions. Both the individual as well as the general privileges, including the provincial ones, provided those to whom they applied with specific rights that could not be infringed by the governing authorities. Any departure from the privilege provisions required the consent of those to whom the privilege applied. It is noteworthy that the popularization of privileges meant that those to whom they applied were all members of the estate of knights, and not only the magnates. This, in its turn, meant that in the Polish situation, no upper nobility separated itself from the rest of the nobility brethren. Apart from the privileges granted to the knights/nobles, there were also those issued for the clans of the knights. They were sometimes issued for more than one clan. This holds true of the privilege granted to the Toporczyk and Stare Konie clans by Casimir the Great in 1366.12 This kind of privilege was more frequent in the Mazovian principalities. On the other hand, one might also find privileges issued collectively for the benefit of the Church by the rulers of several provinces. This is found in the case of the privilege issued by Leszek Biały, Konrad Mazowiecki, Władysław Kaliski and Kazimierz Opolski in 1211–15.13 The privileges played a remarkably significant role, not only in the process of forming the state as a monarchy of estates, but also for the social transformations and modernization of the economy in the Piast monarchy. They also laid the foundations for the development of the world of learning, including the teaching of law. Thus, the act that founded the Academy of Cracow in 1364 assumed the form of a privilege. This is worth remembering on the occasion of the six hundred and fiftieth anniversary of the foundation of the Jagiellonian University. In 1535 King Sigismund I raised the status of the Cracow Academy professors to that of the nobles; the privilege that he issued testified to the importance that he attached to education. The problem of privileges granted to the towns of old Poland is a separate question. Towns were corporations that were given the status of carriers of rights, and

11  J. Bardach, op. cit. p. 229. 12 W. Uruszczak, Species . . . p. 21. 13 W. Uruszczak, Species . . . p. 22.

Nobility’s privileges and civil liberties in old Poland  131

the scope of the rights that they exercised was determined by the privileges conferred on them by the ruler, or by their secular or ecclesiastical owners in the case of private towns. Each town relied on its own founding privilege that laid down the basic legal framework for the functioning of the town, as well as of its authorities and inhabitants.14 From the thirteenth century, the German organizational and legal pattern proved to be attractive to the towns of Poland. The filiation system for founding them was also popular. The privileges granted to the towns caused their status (as well as that of their inhabitants) to be quite diverse with respect to other estates, as well as the other burghers within the burgher estate itself. The towns competed with each other for privileges such as their right to impose a duty on travelling merchants to sell the articles that they transported. On the nationwide scale, this rivalry impeded the forming of bonds of solidarity among the burgher estate.15 The most important towns (the capital city of Cracow; also Vilna after the 1569 Union of Lublin, and Lvov from 1658, Kamieniec Podolski from 1670 and Lublin from 1703; and Gdańsk from among the towns of Royal Prussia) were granted noble rights. They could send their representatives (referred to as ablegates) to the Sejm, but the voice of these representatives was limited to municipal questions.16 This was partly caused by the policy of the towns themselves, because they tried to avoid subjection to the Sejm, and partly by the policy of the nobility, who tried to prevent the burghers from exercising full rights while sitting in the house of deputies. Both former and current historiography emphasized the link between the appearance of the provincial privileges and the process of forming the respective estates. The latter ever more frequently appeared as a unit, and demanded new rights for the individuals whom they represented. Upon the state unification which followed the period of disintegration, i.e. from the reign of Casimir the Great, the last ruler of the Piast dynasty on the throne of Poland, apart from Masovia, no individual privileges are detectable any longer. From the mid-fourteenth century the nobles began to obtain general, and not only provincial privileges, for their entire estate. These were applicable to all the nobles in the entire territory of the country; and in fact, they assumed the character of fundamental laws. A separate group of privileges was made up by those of the incorporation type. These were granted to territories that, in a variety of forms, were being incorporated into the state. These privileges concerned the fundamental law which governed the given province or voivodship.17 From the fourteenth century on, such privileges were granted inter alia to the provinces of Lvov (1338–1339), Przemyśl (1387), Podolia (1430), the Oświęcim principalities (1457), the Zator area (1494), Prussia (1454), the Mazovia Principality (1529), and the Podlasie,

14 W. Uruszczak, Historia państwa i prawa polskiego, vol. I (966–1795), Kraków 2010, pp. 89–90. 15 J. Bardach, ‘Sejm dawnej Rzeczypospolitej’ in J. Bardach (ed.), Dzieje Sejmu polskiego,Warszawa 1993, pp. 26–27. 16 I. Lewandowska-Malec, Sejm Walny Koronny Rzeczypospolitej Obojga Narodów i jego dorobek ustawodawczy (1587–1632), Kraków 2009, p. 96 ff;W. Uruszczak, Zasady ustrojowe Rzeczypospolitej Obojga Narodów, Czasopismo Prawno-Historyczne 2008, issue 2, pp. 131–133. 17 W. Uruszczak, Historia . . . , pp. 159–160.

132  Dorota Malec

Kiev and Volhynia voivodeships (1569).18 The acts of the Polish-Lithuanian Union were, in their nature, close to the characteristic status of the incorporation privileges. They in fact were a kind of privilege granted to the population of the Grand Duchy of Lithuania, particularly to the nobility of the area.19 Under both the Piast and the Jagiellonian dynasties, the direct causes of most of the privileges issued were generated by the problems that the ruling dynasty faced. The monarch sought the consent of the entire noble community to secure the succession of his offspring to the throne, to gain the support for wars against enemies or for the implementation of his political plans.

3. The first general (nationwide) privileges: the privileges of Buda and Košice; the nobles’ immunity from taxation The first privilege of a general nature, in the sense of it covering all of Poland, was issued in 1355 in Buda. It was issued not by the monarch who ruled Poland at that time, but by the future King Louis d’Anjou, King of Hungary, who had been nominated to the throne of Poland. Although most of the obligations that the King of Hungary assumed attracted the interest of the nobles and the clergy, nevertheless the privilege was also had an inter-estate character. Its ‘general’ nature was not limited to the territory of the country, since its addressees were many. The privilege contained the general confirmation of rights of the nobles, clergy, townsmen and peasants, while its provisions on the limitation of taxes referred also to the towns.20 Its most significant provision seemed to be the monarch’s promise to abstain from levying taxes other than those levied before the reigns of Władysław Łokietek and Casimir the Great.21 The ruler also promised to resort to his own means of maintenance while travelling. Likewise he guaranteed the nobles the return of the costs they bore while serving in the army beyond the frontiers of the country. The Buda privilege doubtless played a significant role as the first privilege of such a general scope. Yet its content was not so crucial, since its provisions were reflective of the customs established earlier, and which were detectable in the privileges of Cienia and Lutomyśl already discussed.22 A more significant role in shaping the rights of the nobles vis-à-vis the monarch, therefore, was played by the privilege of Košice of 1374. This was issued by Louis d’Anjou of Hungary, who succeeded to the throne of Poland upon the death of Casimir the Great. By granting the privilege, King Louis tried to secure the throne of Poland for one of his daughters. Unlike the case of Buda privilege, in this privilege the nobles were its exclusive addressees. The latter acquired new rights, although the privilege also confirmed the rights of all estates. We should remember

18 W. Uruszczak, Species . . . p. 32. 19 W. Uruszczak, Species . . . p. 32. 20  J. Bardach, op. cit. p. 423. 21  J. Matuszewski, op. cit. pp. 33, 49. 22 J. Matuszewski, op. cit. pp. 34–35; see also M. Bobrzyński, O podziale historii polskiej na okresy, Szkice i studia historyczne, Kraków 1922, vol. I, p. 48.

Nobility’s privileges and civil liberties in old Poland  133

that consenting to one of King Louis’s daughters succeeding to the throne upon his death was an express concession made by the nobles. What did the latter gain on this occasion, and what were the innovations introduced by the Košice privilege? The ruler obliged himself to maintain the territorial integrity of the country and to make steps toward restoring to it the territories that were lost. 23 What was maintained were the nobles’ previous rights to be compensated for the damage sustained by them on occasion of their serving in the army beyond the frontiers of the state, including the payment of ransom for nobles taken captive. These last provisions may be considered to be a limitation of the nobility’s rights guaranteed by King Casimir the Great’s Statutes.24 On the other hand, the duty of the nobles to participate in the construction of castles was reduced. The nobles were obligated to participate in such undertakings if the latter were taken up on their advice and consent. The lines along which the monarch could appoint individuals to official posts were also specified. The aforementioned provisions of the Košice privilege should be regarded rather as a recapitulation of the state of things that had been created earlier, inter alia by other privileges, and therefore these provisions can hardly be viewed as awarding to the nobles – avid as they were for new grants – any new rights. And the price that the monarch had to pay for his daughter’s right to succeed to the throne would not have seemed excessive, had it not been for one provision – the most important, in the opinion of historians – which exempted the nobles from taxes. The previously binding fiscal impositions and taxes were abolished, save for the so-called poradlne paid in the amount of 2 grosze per łan (about 60 acres). From that time on, whenever the monarch needed money, he could impose an extraordinary tax only if the privileged nobles gave their consent to it. The potency of the vote of consent given by the noble was the same, irrespective of his social position. Thus, all members of the estate of nobles were granted the same rights. This privilege was thus a determinant in forming a uniform, equality-based estate of the Polish noble stratum.25 This rule of equality was one of the major constitutional principles of the Republic. It stated that all nobles formally enjoyed the same rights, despite the great variation in their economic status. A few years later, in 1381, the exemption from taxes also began to apply to the clergy.

4. The golden epoch of privileges: the principle of personal and property inviolability While discussing the privileges and the formation of the nobles’ civil rights in old Poland before its partitions, it is worth noting that generally the constitutional system of the state is governed by certain principles, which are not always determined by statutory or customary norms. The outlining of these principles may shed a new light on the constitutional history of the noble Republic. This is exactly what

23  J. Matuszewski, op. cit. p. 60. 24  J. Matuszewski, op. cit. p. 62. 25  J. Bardach, op cit. p. 424.

134  Dorota Malec

Uruszczak tried to do with respect to the constitutional principles of the Republic of the Two Nations after the Union of the Crowns of Poland and Lithuania in 1569. The scope of his research was extended by the study of the Piast period and also that of the Anjou and Jagiellonian epochs.26 He found that the general privileges, as well as the way they were interpreted, had an impact on the formation of the prominent state-governing principles, such as equality among nobles, respect for the law, the nobles’ civil liberties, religious toleration, etc. The next privilege of a general nature, issued by Władysław Jagiełło on the day of his wedding with Jadwiga and his coronation in 1386 (and later repeated in 1388) did not contain any substantial novelties, and basically limited itself to repeating those rights that the nobles already enjoyed. What was new was the definition of the amount of pay due to the noble who served in the army beyond the frontiers of the country. Another innovation was the duty imposed upon the monarch to pay a ransom for the noble who was taken captive within the territory of the country.27 The growth of the nobles’ opposition to the share that the magnates had in the government of the country was inter alia due to the influence of Hussite ideas. This led the nobles to present new demands to King Władysław Jagiello during the socalled ‘Camp Sejm’ held at Czerwińsk. This consequently induced the monarch to make far-reaching concessions for the benefit of the petitioners. As a result, the inviolability of property was established for the first time in Poland’s history. The Privilege introduced a ban on confiscating and seizing the nobleman’s property without due process of law. Though limited only to the nobles in its protective force, the Privilege was nevertheless a milestone in the development of civil rights in that part of Europe, as it prevented the arbitrary confiscation of noble property.28 Among other concessions in this Privilege, one may list the imperative that prohibited the combining of the function of judge with that of starosta (who was a higher provincial dignitary appointed by the monarch). This amounted to a relatively early formulation of the separation of executive power from the judiciary. In the centuries to follow, this separation of the spheres of power characterized the noble judicial system, and was eventually confirmed in 1578 on occasion of forming a fully self-ruling Supreme Court for the nobles, independent of royal power: the Crown Tribunal. The tendency was reflective of the principle of constitutional separation of powers, which was not formally formulated in the modern sense but which was gradually being implemented as a result of specialization in the exercising of state power.29

26 Cf. W. Uruszczak, Historia państwa i prawa polskiego. Tom I (966–1795), Warszawa 2013, 2nd ed., pp. 39–69, 120–156, 190–223;W. Uruszczak, Zasady ustrojowe Rzeczpospolitej Obojga Narodów, Czasopismo Prawno-Historyczne 2008, vol. 2, pp. 125–156;W. Uruszczak, Zasady ustrojowe Rzeczpospolitej Obojga Narodów in J. Przygodzki, M. J. Ptak (eds.) Społeczeństwo a władza. Ustrój, prawo, idee. Wrocław 2010, pp. 23–50. 27  J. Bardach, op. cit. p. 424. 28  More details on the Privilege of Czerwińsk: K. Goźdź-Rokoszowski, Z badań . . . , pp. 15–32. 29 W. Uruszczak, Historia, p. 258.

Nobility’s privileges and civil liberties in old Poland  135

The Czerwińsk Privilege of 1422 expressly tended toward guaranteeing the rights of all nobles, who were simultaneously promised equal treatment.30 Although the Privilege only applied to the members of the nobility, it should be remembered that the latter were a particularly numerous segment of the society. According to various calculations, the nobles made up at least 10 per cent of the entire population, which by the European standards of the time was a remarkable proportion. Soon there followed the enlargement of the demands of the nobles, this time supported by the magnates and the Church, the latter aiming for the weakening of Hussite influence. On the occasion of a rally in 1423, the Warcki Statute was accepted, which confirmed the nobility’s dominant economic position. Soon afterwards, further privileges followed. Their issue was facilitated by the fact that the nobles’ demands were put forth at the time when Władysław Jagiello was trying to ensure the succession for his son. Therefore, the monarch produced a privilege in Brześć Kujawski which was not brought into force at that time but whose provisions reappeared in the Privilege granted in Jedlnia in 1430, and later repeated in Cracow in 1433. These three privileges, whose content resembled one another, made up a totality of the nobles’ achievements at that time. The new rights granted to them considerably enlarged their scope. This was personal inviolability, as expressed by the phrase neminem captivabimus nisi iure victum. From that time on, a nobleman possessionatus could be neither imprisoned nor punished without a judgment issued by the Court. The fundamental content of the privilege was probably introduced on the initiative of Polish supporters of Hussitism, since they were afraid of either being imprisoned or losing their property if they did not comply with the Edict of Wieluń of 1424.31 The rights guaranteed by the Jedlna Privilege were, by 1434, extended through a separate privilege to the nobles inhabiting Galician Ruthenia. This was done despite the opposition of the magnates who tried to preserve their position, which was extra-privileged vis-à-vis the boyars.32 One may observe an express resemblance in the way in which the principle of inviolability was formulated in the above-mentioned privilege and the famous Article 39 of Magna Carta Libertatem, which stated that “no free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land”.33

30 So that all people be subjected to one and the same law and that the judges would not dare apply provisions other than those laid down in the Statutes of Casimir the Great. A. Prochaska, Przywilej czerwiński z 1422 r. Przegląd Historyczny 1907, vol. IV, p. 288. 31  K. Goźdź-Roszkowski, Z badań . . . , p. 19. 32 Also, the nobility of Małopolska were opposed. S. Kutrzeba, Przywilej jedleński i nadanie prawa polskiego Rusi, Kraków 1911, p. 32. 33 The text of Magna Carta: Horst Buszello, Mariusz Misztal, The idea of Europe – Europe as an Idea. A Reader on the question:What is Europe,Wyd. Naukowe WSP Kraków, 1999, p. 145; A. Dziadzio, Historia prawa, Warszawa 2008, s. 167; K. Sójka Zielińska, Drogi i bezdroża prawa, Warszawa 2010, p. 166.

136  Dorota Malec

Historians have also noted the resemblance between the Hungarian Golden Bull produced by King András II in 1222 and Magna Carta Libertatem. There were only a couple of years between the issue of the two documents.34 It is worth noting that protection against illegal imprisonment was not an absolute novelty in the Europe of the time; it had been known in tribal laws, and was expressly mentioned in the Magna Carta of León of 1188, accepted by the Cortes. Likewise, it was referred to in the German Landfrieden.35 According to Boromeo Hoffman, who sought analogies among the European solutions of this period, the rights of the nobles contained in the Brzesko-Jedlnia-Cracow Privilege followed the Hungarian pattern.36 According to the Hungarian Golden Bull, the imprisonment and imposition of penalty was forbidden without a judgment produced by the Court.37 While presenting the nobility’s liberties and their protection in the Encyklopedia Staropolska, Zygmunt Gloger emphasized the differences between Magna Carta, the Golden Bull and the Polish law. He observed that the Polish law on personal inviolability applied only to the nobles.38 At the same time, he added that in view of the numerically large proportion of the Polish nobles, the difference in factual number of those who availed themselves of this kind of protection in England, Hungary and Poland was more theoretical and ostensible than real.39 The Privilege of Neminem captivabimus is partly underestimated and forgotten in the history of European legal culture. Nevertheless, it is worth recalling since it granted rights that were comparable to those granted not only by Magna Carta but also by the later Habeas Corpus Act of 1679.40 This specific right granted to the nobles (not all of them, but only those who were possessionati, i.e. those who owned real property) distinguishes Poland from other European countries, including France where the lettre de cachet allowed the monarch to imprison anyone he wanted on the basis of his personal order, up to the Revolution. Since we are used to treating personal inviolability as one of the most significant natural human rights we should view those who embarked upon formulating this right with particular esteem.41 The discussed privileges, and in particular Neminem captivabimus, also exerted their influence on the shape of judicial proceedings, including the disappearance of some devices of which the voivode disposed, and the disappearance of sanctuary. The law provided for certain circumstances in which it was possible to imprison a noble before a legally valid judgment was passed with respect to him. These were specified in the Warcki Statute of 1423,

34  S. Płaza, Historia państwa i prawa Polski na tle porównawczym, vol. I: X-XVIII w., Kraków 1997, p. 77. 35  K. Sójka-Zielińska, Drogi . . . p. 166. 36  K. B. Hoffman, Historya reform politycznych w dawnej Polsce, Lipsk 1867, pp. 22–23. 37 “Neither we nor our successors shall capture or punish our subjects without first subjecting them to the court and proving them guilty according to law”. K. B. Hoffman, Historya . . . p. 23. 38  Z. Gloger, Encyklopedia staropolska, reprint, Warszawa 1974, vol. I, p. 152. 39  Z. Gloger, Encyklopedia . . . , p. 152. 40 Cf. Encyclopaedia Britannica: “Called neminem captivabimus (comparable to habeas corpus), the measure guarded against arbitrary arrest or confiscation of property, and distinguished between the executive and the judiciary.” 41 W. Uruszczak, Species.., p. 25.

Nobility’s privileges and civil liberties in old Poland  137

and referred to situations when the perpetrator was captured in flagranti delicto. In addition they applied to the cases referred to in the so-called Grodzkie Articles. Such cases fell within the competence of the Borough Courts, among them arson, invasion of a nobleman’s house, highway robbery and rape.42 It is worth noting that in these cases the Borough Court was deemed competent irrespective of the social status of the accused. Although the judiciary of the time was still far from introducing the principle of the equality of everybody before the law, the Grodzkie Articles provided for a substantial exception in this respect, since they ignored the estate affiliation of an individual and the latter’s subjection to a different court depending on this affiliation. The general privileges provided those to whom they were granted with new rights. The exercise of the latter by the privileged depended on the good will of the ruler and his collaborators, since no instruments functioned that might facilitate the implementation of the privileges, or for demanding that they be implemented. It was probably for this reason that the successive privileges were reminiscent of the most important provisions contained in those that had been issued earlier. This manoeuvre was designed to remind the monarch what his predecessors had promised. Anyway, whether the monarch was ready to observe the concessions that he had made in the privilege he issued depended on the actual arrangement of forces on the political scene. The ups and downs of the Brzesko Privilege of 1425 testify to this.43 On the other hand, the fact that certain fragments of privileges repeatedly reappeared facilitated their consolidation in social and legal awareness, and consequently provided them with the characteristics of fundamental law. The general privileges also facilitated the process of unifying the law. Legal differences of territorial type, inherited from the period of the country’s feudal disintegration, were reflected in the laws of large provinces such as Małopolska and Wielkopolska. The statutes issued by Casimir the Great still reflected them, and so the statutes were published in two separate versions for each of the two provinces.44 Beginning with the Buda Privilege the unification of the law progressed. The Košice Privilege and other acts proclaimed by Władysław Jagiełło applied to the entire territory of the Crown, thereby putting all the nobility on the same legal footing. In fact, the idea of uniformity of the law was consolidated by the Statute of Piotrków of 1447, issued during the reign of Casimir Jagiellończyk.45 The idea of uniformity of law had already been articulated earlier, for instance in the aforementioned Privilege of Czerwińsk of 1422.46 The privileges granted by Władysław Jagiełło expressly emphasized the equality of the members of the noble class with respect to the law, and eventually prevented the possibility of forming any upper class of nobiles among this group.

42 S. Płaza, Historia prawa w Polsce na tle porównawczym, vol. 1: X–XVIII w., Kraków 1997, p. 462; J. Bardach, Historia . . . , p. 478. 43  W. Uruszczak, Species . . . , pp. 25–26. 44  S. Roman, Statuty Nieszawskie, Wrocław 1957, p. 187. 45  S. Roman, op. cit p. 187. 46 W. Uruszczak, Historia . . . p. 161.

138  Dorota Malec

5. From the epoch of privileges to the era of noble democracy The possibility of extorting new concessions from the monarch and consequently conferring further rights on the nobles arose during the Thirteen Years War waged by Poland against the Teutonic Knights. In 1454 the nobles of Wielkopolska Province, while rallied as a levy en masse at Cerekwica, extorted a new privilege from the monarch, which was later repeated separately for the benefit of the nobles of Małopolska in Opoki (the so called opockie petyta). As a result, in 1454 the king issued the Nieszawa Privileges, this time separately for the particular provinces and lands. The privileges varied depending on the types of demands put forth by the nobles of each region. From the point of view of further constitutional developments and the dominant position enjoyed by the nobles in the state, of particular importance was the provision in the discussed instrument that prohibited the monarch from issuing any new laws or summon levies en masse without the consent of the nobles as given at the Sejmiks (local assemblies of the nobles). It is worth noting that the formulation of separate privileges for Małopolska and Wielkopolska was a departure from the general tendency toward the unification of law. Likewise, it decentralized the legislative practice, a decentralization which survived until the end of Casmir Jagiellończyk’s reign.47 The provisions of the Nieszawa Privileges became a milestone in the development of noble democracy. The Nieszawa Privileges contained the premise of the emergence of the House of Deputies (i.e. the lower house of the Sejm) composed of the representatives of particular provinces as elected at the local assemblies of the nobles, called the Sejmiks. This would lead to the forming of the bicameral General Sejm.48 Apart from the royal statutes and the laws (referred to as konstytucje) adopted by the Sejms, the privileges made up the most significant source of ius commune, which was a commonly applied law that was uniform for the entire state. The idea of ius commune, beginning in the fifteenth century, expressed the community spirit as penetrating the ranks of the nobles. This idea coexisted with the ideas of communitas and respublica, and won out in the next century when the name Rzeczpospolita (the Republic) was applied to refer to the state at the time. The very notion of Rzecz­ pospolita became a special category in the political and legal thought of the time.49 While boosting the importance of the nobles who thus possessed prominent rights distinctly defined by the monarch, the privileges were one of the factors that influenced the formation of the bicameral parliament. Its origin is supposed to be

47  S. Roman, op. cit, p. 188. 48  H. Samsonowicz, Historia Polski do roku 1795, Warszawa 1990, p. 110. 49 W. Uruszczak, Species . . . p. 27; see also H. Olszewski, ‘Rzeczpospolita. Przyczynek do dziejów ideologii polityczno-prawnej w dawnej Polsce’ in Sejm w dawnej Rzeczpospolitej. Ustrój I idée. Studia I rozprawy. Poznań 2002, vol. 7; D. Pietrzyk-Reeves, ‘O pojęciu “Rzeczpospolita” (res publica) w polskiej myśli politycznej XVI wieku’, Czasopismo Prawno-Historyczne 2010, z. 1, p. 46;T. Ambroziak, ‘Rzeczpospolita w litewskich instrukcjach sejmikowych w latach 1587–1648. Próba analizy terminologicznej’, Czasopismo Prawno-Historyczne 2013, z. 2, p. 193.

Nobility’s privileges and civil liberties in old Poland  139

connected with the integration that followed the death of Louis d’Anjou.50 During the reign of Władysław Jagiello the first General Sejm (conventum generale, parlamentum generale) emerged, which representatives of the towns and delegates from the ecclesiastical chapters would also attend. They were treated as representatives of the Kingdom’s estates. Those who attended them made up a third, and sometimes less, of those who were entitled to attend, although the resolutions taken on such occasions were binding on everybody.51 When the most important matters were debated, it was deemed necessary – due to the imperfect representation of those who might be interested – to consult the opinion and to obtain the consent of the nobles as articulated at their Sejmiks. The Sejmiks’ consent was particularly important in view of what the Nieszawa Privileges guaranteed, since the latter required that the consent of local assemblies be given for the levying of taxes and the summoning of levies en masse. This in its turn forced the monarch to create a system that would ensure the representation of the nobles and their Sejmiks during the debates of the general Sejm. The earliest allusion to the deputies dates back to 1434, and refers to the Sejm convened on occasion of the coronation ceremony in Cracow.52 The practice of sending the deputies elected to the Sejmiki to the Sejm solidified during the long reign of Casimir Jagiellonczyk; the earliest hint of the deputies attending the Conventio Magna is found in records referring to the Sejm held in Piotrkow in 1459. However, recent research reveals the existence of a Chamber of Deputies in the structure of the Sejm in 1468.53 After that time the noble deputies started to participate permanently in the General Sejms, while the previous Royal Council was transferred into the Senate. The forming of the bicameral Sejm (composed of the House of Deputies and the Senate) did not put an end to the nobles’ struggle for their political rights, the more so because the magnates’ dominant share in the government of the country had not been eliminated. The shaking of the alliance between the nobles and the king, particularly after the defeat suffered by the nobles’ army at Bukovina in 1497, led to the granting of the next privilege, that of Mielnik in 1501, which formulated the developing political system. The privilege granted broader rights to the Senate, consequently diminishing the significance of the House of Deputies. But in the end, the king did not confirm the Privilege, while the Nihil Novi Statute (formally referred to as Konstytucja Nihil Novi) formally awarded both Chambers of the Sejm rights to cooperate in the law-creating process. When the nobles obtained the share in the government of the country guaranteed by the Nihil Novi statute, the need to apply to the king for successive rights to be granted by a further round of general privileges came to an end. This did not mean the monarch ceased exploiting these last-mentioned instruments, but he resorted to the latter to a more limited degree; he confined himself to granting individual privileges.

50  W. Uruszczak, ‘Poselstwo sejmowe w dawnej Polsce’, Czasopismo Prawno-Historyczne 2009, z. 1, p. 50. 51 W. Uruszczak, Poselstwo . . . , pp. 50–51. 52 W. Uruszczak, Poselstwo . . . , p. 51. 53 W. Uruszczak, Poselstwo . . . , p. 52

140  Dorota Malec

Beginning with Władysław III, who succeeded to the throne in 1434, the king confirmed the rights of the estate in a special document that he issued. Due to Władysław III’s minority, the most prominent dignitaries of the State performed the function of guarantors. Their task was to see to it that, upon reaching the age of maturity, the king should issue the appropriate confirmation of the rights of the estates. This was stipulated with the right of the estates to refuse their obedience to the monarch.54 The right of resistance, expressly articulated in the provisions of Magna Carta, may – as can be seen – also be found in the Polish sources. The possibility of renouncing allegiance to the ruler was also formulated earlier, and was inter alia visible in 1351 when the terms on which Louis d’Anjou was expected to succeed to the throne were drafted. All the kings of the Jagiellonian line produced the confirmation privileges when elected to the throne. The general confirmation of the laws of the kingdom, including the general privileges, was of great significance in the formation of the constitutional concept of balanced government.55 The privileges limited royal power, and at the same time they transformed the relationship between the ruler and the nobles into a contractual relationship. Although they were formally a one-sided act, in fact they made up a kind of social contract, and contained obligations that had a bilateral character, the obligations being sometimes supplied with the aforementioned clause on the possibility of renouncing allegiance to the ruler (the right of resistance).56 The provision on renouncing resistance to the ruler may be found in the Privilege of Mielnik of 1501,57 yet as a developed and constant norm (articulus de non praestanda oboedientia), it is already detectable in the Henrician Articles of 1573, as a part of the coronation oath taken by the rulers. In this oath the king obligated himself to observe the law, including the privileges. The significance of the latter as a foundation of the constitutional system of the state and of the noble liberties was re-emphasized after 1573, and also on the occasion of the first free election, which was crucial for the history of Poland’s constitutional system.

6. Privileges and liberties as reflective of the Republic’s constitutional foundations The Henrician Articles were in fact the first Constitution of the state, since they were equipped with all the characteristics of the Constitution in the material sense, and – from the perspective of the law – they had the form of the old Privilege of the Kingdom.58

54  J. Bardach, Historia . . . , p. 438. 55 W. Uruszczak, Historia . . . , p. 160 56  J. Bardach, Historia.., p. 439. 57 Z. Kaczmarczyk, ‘Demokracja szlachecka’ in J. Bardach (Ed.) Historia państwa i prawa Polski,Vol. II: od połowy XV w. do roku 1795, Warszawa 1966, p. 117; W Uruszczak, Species . . . , p. 28. 58 W. Konopczyński called them ‘Konstytucja’; ‘Rząd a Sejm w dawnej Rzeczypospolitej’, nadbitka Pamiętnika V Powszechnego Zjazdu Historyków Polskich w Warszawie, vol. I, referaty, Lwów 1930, p. 201; quoted after Lewandowska-Malec, Sejm Walny Koronny Rzeczpospolitej Obojga Narodów i Jego dorobek ustawodawczy (1578–1632), Kraków 2009, pp. 21–22;W. Sobociński, ‘O ustawie konstytucyjnej państwa polskiego z r. 1573’, Czasopismo Prawno-Historyczne 1948, t. I, pp.75–90;W. Uruszczak, Species . . . , p. 32

Nobility’s privileges and civil liberties in old Poland  141

The contents of the Henrician Articles were a specific summary of the nobility’s freedoms. At the same time, however, the Articles limited the king’s prerogatives;59 the ruler was obliged to convene the ordinary Sejm at regular dates (every two years; an extraordinary Sejm could be convened in an emergency). Also, the Sejm’s term of office was fixed.60 The ruler’s rights were limited inter alia by a ban on his right to call levies en masse without the consent of the Sejm, and another on him resolving questions of war and peace without the consent of the Senate. Moreover, the king was obligated to maintain the so-called kwarciane army (based on a quarter of the taxes from the nobles’ lands), and to be accompanied by a standing Council composed of sixteen senators. As mentioned above, if a ruler violated the Henrician Articles or did not carry out his duties arising from the Pacta Conventa, and if he infringed other legal norms, the nobles could refuse their obedience to him. The Constitution of the Republic – shaped during the long interregnum that followed the death of King Sigismund August, the last of the Jagiellonian line – assumed the form of a mixed system: on one hand the dignity of the king was preserved; he was the ruler elected for life, but on the other hand, the traits of Republican government were discernible in the organization of the state structure. They manifested themselves clearly during the subsequent interregna, and also in the eighteenth-century confederations formed in the Sejms.61 In practice the refusal of obedience to the king, provided for by the Henrician Articles, assumed the form of the rokosz. In the seventeenth century this name was applied to a confederation that was not recognized by the king. As early as the Middle Ages the monarch’s subjects formed confederations designed to achieve specific goals and replace the state authorities by so doing. When the bodies that represented the estates began to emerge the confederations fell into oblivion, but they were reborn in the seventeenth century. At that time the confederations were expected to fill the constitutional gaps during the interregna. Also, due to the weakening of the state’s central power, the nobles resorted to confederations in order to achieve particular goals. The participation in the confederations was voluntary. The act of forming the confederation had to be laid down in writing and entered into the books kept by the courts of law. From the eighteenth century onwards, the Sejms were convened under the bond of confederation. The confederated individuals were bound by the rule of taking decisions by majority vote, which allowed them to evade the rule on unanimity and the threat of applying the liberum veto during the Sejm debates. The Great Sejm convened in 1788 progressed exactly along the lines of confederation, which facilitated various reforms and the adoption of the Constitution of 3 May 1791, the fear of disrupting the Sejm thus being eliminated.62

59 More remarks on the Henrician Articles may be found in S. Płaza, Próby reform ustrojowych w czasie pierwszego bezkrólewia (1572–1574), Kraków 1969; W. Sobociński, ‘O ustawie konstytucyjnej państwa polskiego z roku 1573’, Czasopismo Prawno-Historyczne 1948, vol. I. 60 W. Uruszczak, Historia, p. 223; I. Lewandowska-Malec, Sejm Walny Koronny, pp. 21–22; Z. Szcząska,‘Ustawa Rządowa 1791’ in M. Kallas (ed.), Konstytucje Polski, vol. I,Warszawa 1990, pp. 19–20. 61 W. Uruszczak, Zasady ustrojowe, pp. 142–143. 62 W. Szczygielski, Konstytucja 3 Maja in Konstytucja 3 Maja w tradycji i kulturze polskiej, Łódź 1991, p. 9.

142  Dorota Malec

After 1632, the Henrician Articles were transformed into one act with the pacta conventa, which listed the personal duties that the newly elected king assumed. In this form all the successive rulers who were elected to the throne after Henri de Valois promised under oath to observe the Henrician Articles. Uruszczak’s remark is noteworthy that the pacta conventa and the laws of the Crown, together with the laws adopted at the Coronation Sejms, were sworn by all the subsequent rulers, and until the reign of Stanislaw August Poniatowski they were published under the invariable title of Privileges and Sejm Constitutions.63 It is worth remembering the content of the pacta conventa of Stanislaw August Poniatowski, the last ruler of the Respublica, where the emphasis was laid on the privilege‑based principles of equality of the nobles, and their personal inviolability as well as the inviolability of their property: While considering inter iura cardinalia the prerogative of freedom and the painstaking maintenance of the latter to be the strongest advantage of the Republic, we shall not allow the glare of this freedom to be overshadowed and restrained by any names of families, titles of counts, margraves, dukes, but we will treat all [ . . . ] in the same way in our royal concern, so that the richer not be a burden to the weaker [ . . . ]. This as well as cavemus that neminem captivari nisi iure victum, permittemus. We shall also not allow the estates to be forcibly confiscated unless this is done post indicium et convictionem in a respectable court, nor shall we allow anybody to be deprived of his honour and mentem statuti of Władysław Jagiello.64 In the seventeenth century the concept of cardinal or fundamental laws, understood as the laws of superior and invariable character, began to be formed. These laws could be supplemented by new provisions but not subjected to review. These laws included the Henrician Articles, the pacta conventa, the principles of the free election of the monarch, but also the noble privileges, including particularly those that guaranteed the nobles their personal liability. In 1768 the notion of cardinal laws assumed the characteristic of statutory norms on the occasion of the Sejm’s adoption of the cardinal laws. Apart from the principles arising from the Henrician Articles, the long-sanctified rights of the nobles conferred on them by the general privileges were also listed among them. Therefore, the list included: personal inviolability, the right to hold offices and grants of estates for life, equal treatment of the nobles on occasion of appointing them to offices etc. The reference to privileges was clear: The safety of noble freedoms is sufficiently secured by the statutes issued by Władysław Jagiełło and by the laws of the Republic. While trying to ensure that this safety be left inviolate, we promise that it would be improper to capture any nobleman possessionatus suspected of an offence unless he be first proven guilty, by means of due evidence before a respectable court.

63 W. Uruszczak, Species . . . , pp. 33–34. 64  Volumina Legum, vol.VII, pp. 201–202.

Nobility’s privileges and civil liberties in old Poland  143

Thus, the privileges particularly including personal inviolability were recorded as one of the fundamental principles in the documents which met the requirements of the Constitution in the material sense. In 1775 the cardinal laws which consolidated the Polish constitutional system of the discussed era were supplemented by new norms.65

7. Freedom of conscience and religious toleration It was fairly early – although not directly through privileges – that in the old Republic another important idea was formed which constituted one of the most significant human rights: freedom of conscience and religious toleration. In the Renaissance, the Protestant ideology penetrated Polish minds while the traditional noble privileges, referred to as ‘the golden freedom’, were treated as referring to religious freedom also. While Europe was shattered by religious wars and unrest, the Polish Act of the Warsaw Confederation of 1573 statutorily guaranteed freedom of conscience, and – which is worth emphasizing – it was formulated in a general sense referring to all denominations and to individuals of all estates (although with the reservation of the influence of the nobles on the faith of their subjects). This right, emerging from the tradition of noble freedoms and privileges, is considered to be one of the most significant achievements of the old Republic. The principle of freedom of religion was – as a fundamental rule – introduced into the Henrician Articles and to the content of the coronation oath, as well as to the general confirmation of the laws of the kingdom as made by the successive rulers.66 The principle of freedom of conscience also made up one of the foundations of the Republic as contained in the cardinal laws and in the Constitution of 3 May 1791.

8. The Constitution of 3 May 1791 However, the guaranties of personal inviolability and the inviolability of property and the principle of equality before the law, which had been permanently present in the Polish legal system since the time of the great general privileges, and also the freedom of religion, were liberties exercised by the nobles. And, although Polish/ Lithuanian nobles made up a particularly large social class by the standards of the time, the privileges discussed above left a considerable segment of the population outside the scope of similar protection. The ideas that everybody was equal before the law, and of the liquidation of rights and privileges based on the criteria of ownership, could only arise in the era of the Enlightenment. The ideas of that type became reflected in the political writings of the era of King Stanisław August Poniatowski, and are also discernible in the writings of such authors as Stanisław Staszic and Hugo Kołłątaj. According to what Stanisław Staszic wrote: “No one is born with the privilege to be indivisibly idle or rich, nor to be invariably destined for work and poverty”.67

65  Volumina Legum, Petersburg 1860, vol.VII, 597 (p. 278). 66 W. Uruszczak, Historia . . . p. 200. 67  S. Staszic, Przestrogi dla Polski, Kraków, 1926, p. 20, quoted in W. Uruszczak, Species . . .  p. 36.

144  Dorota Malec

Hugo Kołłątaj, in turn, while speculating on the shape of a good constitution, emphasized that its task was to secure “one fully uniform principle referring to all classes of citizens”.68 However, such ideas could not be fully implemented, even in the era of the reforms carried out by the Four Years’ Sejm of 1788–1792. The reforms carried out by the Great Sejm in 1788–92, and particularly the most significant among them, i.e. the adoption of the Constitution of 3 May 1791, made up a particularly important attempt to rescue the country from the increasingly aggressive policy conducted by the Republic’s neighbours. The latter tried to avail themselves of the weakness of the Republic in order to achieve their own goals. Their intention was proven by the three empires’ partitioning the Republic in 1772. The Governmental Statute, as the Constitution of 3 May 1791 was referred to, introduced fairly revolutionary changes into the constitutional system of the state. These changes reflected the most progressive tendencies of the epoch. Yet in the social system, the Constitution maintained the principle of affiliating the inhabitants to their estates. According to Article II of the Constitution the noble estate, limited to the nobles possessionati, obtained the constitutional guarantees of freedoms, liberties, prerogatives and priority in private and public life. The rights granted to the nobles by general privileges were expressly anchored in social consciousness, which was reflected in the text of the Governmental Statute. Thus according to Article II of the Constitution: Revering the memory of our ancestors with gratitude, as the first founders of our liberties, it is but just to acknowledge, in a most solemn manner, that all the pre-eminence and prerogatives of liberty, both in public and private life, should be ensured to this order; especially the laws, statutes, and privileges granted to this order by Casimir the Great, Lewis of Hungary, Władysław Jagiełło, and his brother Vytautas, Grand Duke of Lithuania; also by Władysław and Casimir, both Jagiellons; by Jan Albert, Alexander, Zygmunt the First, and Zygmunt Augustus, (the last of the Jagiellon dynasty) are by the present act renewed, confirmed and declared to be inviolable.69 Among the aforementioned liberties of particular significance were those separately mentioned in the cited fragment of the Constitution of 3 May, including formal equality (within the estate of the nobles). This fragment stated: We acknowledge the rank of the noble Equestrian order in Poland to be equal to all degrees of nobility wherever used; all persons of that order to be equal among

68  Quoted in W. Uruszczak, Species . . . p. 36 69 The Government Statute (The Constitution of 3rd May) (New Constitution of the Government of Poland established by the Revolution, the Third of May, 1791, The Second Edition. London printed for. J. Debrett, opposite Burlington House, Piccadilly, 1791, reprinted by Kancelaria Sejmu, Wydawnictwo Sejmowe, Warszawa 2011, reissued on the basis of the edition found in the Biblioteka Narodowa (National Library), Warsaw, docket number XVIII.2.3374)

Nobility’s privileges and civil liberties in old Poland  145

themselves, not only in the eligibility to all posts of honour, trust, or emolument, but in the enjoyment of all privileges and prerogatives appertaining to the said order. And again, this act of constitutional rank emphasized the liberties that were most important. These were the personal inviolability of property as shaped by the general privileges conferred on the estates and firmly secured in the Polish constitutional doctrine and practice. The Constitution further stated: and in particular, we preserve and guarantee to every individual thereof the personal liberty and security of territorial and moveable property, as they were formerly enjoyed; nor shall we even suffer the least encroachment on either by the Supreme national power (on which the present form of government is established), under any pretext whatsoever, contrary to private rights, either in part or in the whole. How highly the discussed liberties ranked was confirmed by successive references to them in the constitutional provision. The text stated: consequently we regard the preservation of personal security and property, as by law ascertained, to be a bond of society, and the very essence of civil liberty, which ought to be considered and respected for ever. It is in this order that we repose the defence of our liberties and the present constitution: it is to their virtue, valour, honour, and patriotism, we recommend its dignity to venerate, and its stability to defend, as the only bulwark of our liberty and existence. In the provisions analysed one can find the principal, flagship examples of slogans from the French Declaration of the Rights of Man and the Citizen. These were freedom, equality and property. In the Polish circumstances, the protection of these values was guaranteed exclusively to that part of the society which the Constitution calls citizens. These were the nobles possessionati. Naturally, this remarkably limited the scope of those to whom the guarantees could apply to. However, it is worth remembering that in the Polish-Lithuanian Republic these guaranties, even if their application was limited only to the nobles, were no novelty, and that for centuries they were successfully availed of by around ten per cent of the entire society. While analyzing the legislative achievements of the Great Sejm, we can find that, despite the conservatism in the social sphere, the scope of those who could avail themselves of the most significant liberties was obviously broadened. This was demonstrated by the Law on Royal Towns of 18 April 1791, which was incorporated into the Constitution and functioned as a component of it. The Law conferred on townsmen some of the liberties enjoyed by the nobility. Thus, the townsmen obtained inter alia such liberties as personal inviolability (neminem captivabimus). Article II of the Law pronounced that the cardinal law of neminem captivabimus nisi iure victum applied to persons that were settled in towns. As in the case of this fundamental privilege for the nobles, thus also exceptions to the

146  Dorota Malec

rule of inviolability were formulated when it began to apply to the townsmen. The rule did not apply to “deceitful bankrupts, those not supplying sufficient bail with the courts, and those captured flagranti delicto”.70 In addition, the resolution of the Police Commission of 1792 expressly stated that the neminem captivabimus principle, understood as a general law, was also expected to apply to the Jewish people inhabiting the royal towns.71 The provisions of that type, when combined with the broad possibilities of ennoblement applicable to the townsmen and civil servants, reduced the previous social barriers based on estate affiliation. These provisions were designed to transform the concept of the noble status by basing it on new requirements: those of property, education or activities for the benefit of society. This would eventually lead to the liquidation of differences based on social extraction. As a result the Republic would “not have the citizens who would disgracefully differ one from another on the basis of their estate affiliation”.72 The fall of the Constitution of 3 May 1791 and the final fall of the Republic in 1795 put an end to further reforms and the possible extension of the noble rights, including basic liberties, to other segments of society. As a result the noble legal privileges survived in the full fundamental significance in which they were originally formulated until the end of the First Republic. Since their issue, over many centuries, they became anchored in social and legal consciousness. They became the major, invariable constitutional and legal principles of the state. Although at the time when they were granted these rights were formally produced unilaterally by the monarch, they were nevertheless the result of a social contract concluded with him. In this contract the scope of mutual obligations and rights was determined. It should not be forgotten that these privileges were not exclusively composed of mere rights conferred on the noble estate, but were also composed of the provisions created to support the state.73 The privileges played a significant role in shaping the constitutional system of the Republic, and the most important among them laid the foundations for the principles of the Constitution of 3 May 1791. On that occasion they assumed a modern content corresponding with the spirit of the Enlightenment. On the other hand, they had come into being much earlier, and they made a considerable contribution to the broadly understood legal culture of Poland and Europe.

70  Volumina Legum, Kraków 1889, vol. IX, p. 216 71 B. Leśnodorski, ‘Reformy Sejmu Wielkiego’, in J. Bardach (Ed.), Historia Państwa i Prawa Polski, t. II: od połowy XV do r. 1796, Warszawa 1966, pp. 528–529. 72  O ustanowieniu i upadku Konstytucji 3 Maja 1791 r., Lwów 1792, p. 107, quot. after B. Leśnodorski, op. cit., p. 530. 73 W. Uruszczak, Species . . . , p. 26.

The Polish sources  147

The Polish sources 1. Landed privilege in Cienia, 1228. In the thirteenth century Poland underwent feudal fragmentation. For the local dukes of the native Piast dynasty the key question in their struggle for supremacy over Poland was to establish their authority in the seniorate Cracow Province. Władysław Laskonogi (Spindleshanks), in order to be elected Duke of Cracow, issued the privilege on May 5, 1228. I, Wladyslaw, duke of Greater Poland, take Boleslaw, the son of my brother duke Leszek, into my fatherly care, so that from this day forth he shall be known as my son, and I appoint him the rightful heir of all my movables and royal estates, according to the oath made by myself and by his father, namely that should one of us die leaving their descendant behind, the other one, remaining alive, should he not have any descendants of his own, shall take them and be for them a true father, making them their one and only rightful heir. In a similar way likewise, and with keeping all the original rights of each one. This I swear to never change. When it comes to the land that my newly found son, Boleslaw, inherited from his father, I pledge to take it into my defence and care and that I shall protect it against anyone with all my power, both personally and with the help of my knights. Also his barons and other noblemen I shall love truly and gracefully support; I shall rule the land and its peoples mercifully and in good faith and I shall renounce any burdens and undue taxes, keeping the rights of everyone of them unchanged. I solemnly forbid unjustly judgements. In accordance with the council of the bishop and barons I shall observe just and fair laws, and I shall order for others to dutifully do the same. And should any one of them, forfeiting respect, disobey, they shall be punished; and should they continue on this ruinous path they shall be deprived of their office. With regards to the Church, established in all Her boundaries, including anything She received on the basis of the old custom or privilege given to Her by my brother Leszek, prematurely departed from this earthy dwelling, I wish to keep without damage, reserving the right to increase Her wealth should I, by the inspiration of our Lord, feel obliged for the salvation of my soul to present Her with more assets. Given in the year one thousand two hundred and twenty eight since the Word became Flesh, during a gathering in Cienia, in the presence of Wincenty, archbishop of Gniezno; Iwon, bishop of Cracow; Pawel, bishop of Poznan; Lifftyd, abbot of Tyniec; Radolf, cantor of Cracow; and Adam, parish priest of

148  The Polish sources

St. Florian; and Jan, archdeacon of Sandomierz; voivodes Pakoslaw of Sandomierz and Marek of Cracow; Msciwoj, castellan of Wislica; and many others. Translated by Weronika and Dean Edmunds from the Polish text published in: Historia ustroju i prawa w Polsce do 1772/1795. Wybór źródeł, ed. Sławomir Godek, Magdalena Wilczek-Karczewska, Warszawa 2006, pp. 28–29. 2. Landed privilege in Lutomysl, 1291. In 1291 Cracow Province was seized by the King of Bohemia, Wenceslas II from the Czech Přemyslid dynasty. This privilege was issued by the newly elected Duke of Cracow in order to gain support for his rule. We Waclaw, by the grace of God king of Czech, Duke of Cracow and Sandomierz, and Margrave of Moravia, wish to inform all, by the means of this letter, that desiring to provide each one of them, but especially the honourable father in Christ, bishop Pawel, and the chapter of Cracow, as well as all clergymen, both those who sacrificed their lives to God in monasteries and laymen, barons, knights, and dwellers, and all others whose loyalty lays with us, and who live within the boundaries of our duchies of Cracow and Sandomierz, to preserve their privileges, and so we gracefully order that they shall freely enjoy the profits coming from their old and due rights, customs, and liberties. Appointments and offices within the duchies or the boundaries of the aforementioned lands we shall grant after duly conferring with the honourable bishop and elder barons of the aforesaid duchies as, we are told, it has been so far in accordance to an old custom. Likewise, keeping with the old customs observed within these lands by our predecessors, the both lawful and real dukes and lords of the duchies in question, we shall pay a salary to all knights from the income and treasure the duchies allocated to this effect and to other issues and needs of those lands. We gracefully will for all sensible donations, to which a proper amount of thought has been put by the benefactors, our predecessors, and which were presented to the clergymen and monasteries of those lands, as well as to the knights, and validated by the aforesaid predecessors privileges, to remain binding and recognised. Apart from this we do not wish to burden them with any new and undue taxes. Furthermore, we do not intend to protect and tolerate plunderers and any other wrongdoers whatsoever, who on our lands rob and bring misfortune to our faithful peoples. Finally we wish for all lords and knights, all clergymen and laymen residing in the aforementioned duchies, to live peacefully and safely in their mansions and villages. To this effect testifies our order, namely to

The Polish sources  149

write down this document and validate it with our seals for ever. Given in Lutomysl by the hands of master Piotr, prothonotary of our Kingdom, canon of Prague and Visegrad, in the year one thousand two hundred and ninety one since the Word became Flesh, on 1 September, IV indiction. Translated by Weronika and Dean Edmunds from the Polish text published in: Historia ustroju i prawa w Polsce do 1772/1795. Wybór źródeł, ed. Sławomir Godek, Magdalena Wilczek-Karczewska, Warszawa 2006, pp. 29–30. 3. Privilege in Buda, 1355. As the last King of Poland from the Piast dynasty, Casimir III the Great, was faced with the problem of the lack of legitimate sons, he established a succession treaty with his nephew Louis I, King of Hungary and Croatia. Louis I, in order to ensure his succession, issued the following privilege on January 24th, 1355. He became King of Poland, upon the death of King Casimir, in 1370. Privilege given by Ludwik, King of Hungary, guaranteeing the rights and liberties and awarding new ones to clergymen, knights and town dwellers who liveth in the Polish Kingdom We, Ludwik, by the grace of God king of Hungary . . ., proclaim to all whom it concerns by the means of this letter that when Jan, castellan of Wojnicz, and Florian, parish priest and chancellor of Leczyce, Piotr, tribunus; and Pelka, subagazo of Cracow, came before our Majesty’s very eyes in the name of all the peoples of the entire Kingdom of Poland and humbly presented their emissary, we, kindly acceding to their request, or rather to the request of the peoples of our Kingdom, wish to make it known and we swear in all honesty, without wish to deceive or mislead them, giving them the word of our royal Majesty that should we by the will of God be predestined to take the main city and the power over the aforesaid Kingdom of Poland then according to the agreement, namely a pact between the most honourable dukes and lords, His Royal Highness Kazimierz of Poland and Karol, once upon a time the King of Hungary and our father, which pact was in our person and in our brothers long ago formed and pronounced, freshly with us renewed, should we the aforesaid main city effectively take then it shall not be allowed, not by us nor by our successors, for tithes or taxes to be taken from the peoples of the aforementioned Kingdom... which would be for any reason, beyond the common custom and against the liberties of the aforesaid peoples . . ., citizens of the Kingdom, of any state and office, taken and executed by the King Kazimierz’s father or the father himself (Kazimierz); instead we shall be wholly satisfied with payments that they, according to the old custom, pay

150  The Polish sources

and with those that belonged or belong to the royal treasury the fact which is known to all. . . . Should we ever travel through lands of the Kingdom then we shall refrain from invading the properties of prelates, churches, monasteries, and other peoples of the aforesaid Kingdom as well as the knights, their free peasants, and mercenaries, we shall not disturb and against their will impose nor make any claims on the occasion of our visit. And should it prove impossible for us to find shelter elsewhere then we promise to replenish our food supplies and all other necessities at our own expense. Finally, should it befall us, or our successors, to organise a military expedition beyond the borders of the aforesaid Kingdom, in such a case most dreadful all damages that may afflict the peoples of the aforesaid Kingdom who paid their services at war to us or to our successors we shall compensate, for such compensation shall be our duty and the duty of our successors. Should we (God forbid!) or our nephew, duke Jan, not live to see our male heir, in such a circumstance all pacts, agreements, orders, imperatives, oaths of loyalty and obedience, and any sort of commitments on the side of the Kingdom of Poland towards us and our successors made by the lords of the aforesaid Kingdom shall cease . . . and also the peoples of this Kingdom shall be absolved from them and from any obligation from them resulting. . . . Given in Buda on the twenty fourth day of January, Anno Domini one thousand three hundred and fifty five. Translated by Weronika and Dean Edmunds from the Polish text published in: Wybór tekstów źródłowych z historii państwa i prawa polskiego, ed. Jakub Sawicki, vol. 1 part 1, Warszawa 1952, p. 68–69. 4. Privilege in Koszyce in the year 1374. As King Louis I had no sons, in order to ensure succession for one of his daughters, he issued the following privilege for the Polish nobility. His daughter Jadwiga was elected the King of Poland after his death. [In the name of the Lord, Amen]. Since it befits for that deeds of sovereigns be duly and inviolably explained both for the remembrance of the future generations as well as to provide an everlasting permanence of certifications, liberties, communities, privileges, documents, and affirmation of pacts, therefore we, Ludwik, by the grace of God king of Hungary, Poland, Dalmatia, etc., wish to inform all, both our contemporaries as well as posterity, that as it is our honest and sincere wish for the Polish Kingdom to last in prosperity and strength, and although we had previously pledged through our famous oaths written down in documents and privileges of the

The Polish sources  151

aforesaid Kingdom of Poland, namely that in an event most dreadful when we should be called to the judgement of our Lord, the Poles ought to posses a male, and under no circumstance a female heir, and that such male heir they were obliged to accept as our successor and heir to the Polish throne, yet finally, given the predicament where there is no male offspring, we have gracefully accepted, with the assent and at the request of barons, knights, lords, and all others, our beloved daughters as our Ladies and successors of the aforementioned Kingdom since their subjects wished and wish for them to take over the helm and receive the Crown of the Kingdom of Poland. However in this case, should we by the grace of God be given a son or sons, one of the male heirs, and should there be none – one of the female heirs – born and living, and from amongst those who are to be born in the future, the son or daughter that should be appointed by us or by the mother and the accomplice of the most gracious and beloved lady the Queen, this our descendant they should acknowledge as our successor. Also the inhabitants of the Kingdom should see it as their duty and obligation to receive them as their only true rulers, our successors, similarly to our barons and lords, dignitaries, townsmen, and all who live within the boundaries of our glorious Kingdom of Poland, who also, according to our will, showed and show them the loyalty due of a vassal. And should he or she – God forbid! –come to the end of their days without seeing an heir of their own, then the second of our sons or daughters are to sit on the throne of the Polish Kingdom and then, similarly to before, their subordinates are to show them loyalty of vassals and they shall make an oath and welcome one of them as our successor, heir, and the rightful ruler. Afterwards and from this moment forth their successors are to inherit the crown of the aforesaid Kingdom of Poland. Yet for as division, split, or any other hardship may come unto this Kingdom as a result of such inheritance we solemnly swear, without deceit and with no intention of treason, under oath, made in accordance to our faith, to keep the Crown of the beloved Kingdom of Poland whole, intact, and undiminished, and for no lands or their parts to entrust into any other hands, leading to Her decrease. On the contrary – we swear to add to Her glory Her and to retrieve any lost [lands], as we did pledge during our coronation, to which pledge we still account for. And since the lords of this sweet Kingdom of ours are overwhelmed with many honourable feelings towards us, which led them to gracefully accept equality of inheritance between our male and female heirs and to agree to recognise them as their rightful rulers, therefore, out of consideration for their faithful service, and due to the kindliness shown towards ourselves and both our male and female offspring on the part of the majority of them, to honour their faithfulness and

152  The Polish sources

due to the fact that in the future they are willing to, with the help of the Lord, offer their service whenever possible and at an appropriate time, holding them in due regard – we absolve and fully relieve all large and small towns, boroughs, landed properties, and villages, citizens of all villages within the boundaries of Kingdom of Poland, those who dwell in landed properties belonging to those barons and all lords from all and particular donations, contributions, taxes and tithes both general and in any way defined as special; it is also our sincere and honest will for them to be entirely free from any works of ancillary nature, burdens, services and hard works connected with expense and personal effort, on the contrary, we wish to be entirely satisfied with only a sign of the supreme power and of their loyalty towards the Kingdom of Poland, namely that each year on the feast of the blessed Marcin the Believer a payment should be made to us and to our successors from each field both either owned or due to the smile of fortune rented, two grosze of the regular currency in circulation within this Kingdom, that it may amount to one Polish grzywna. Here we wish to stress that should the lands of this Kingdom be oppressed and tormented by war then Her lords are expected to come to the rescue and with all their might put an end to hostile attempts. Furthermore, should it during our reign or during the reign of one of our successors befall the aforesaid Lords to leave the boundaries of our beloved Kingdom for a quest, or should they by the twist of faith, with or without us, start a war with any foe during such a quest, and some of them should be taken to captivity of the enemy causing them minor or great loss, we shall present them with full compensation both with regards to their riches and their person. Furthermore, should any old castle demand repair, then at the time of peace it shall be the duty of a burgrave or the owner and the caretaker of such a castle to restore it to its former glory. Should a war break out or in case of a dispute, our boroughs located and existing on the borders of our Kingdom, as well as all the peoples who live in the vicinities of those boroughs, should in unison help to carry out the necessary repairs. And should they will, according to the council and with the approval of barons, to build a new borough for the safety and in the name of protection of the aforesaid Kingdom, then the noblemen are burdened with the duty to assist in said construction. Should we wish to build without the consent and advice of those lords and noblemen, then we pledge to do so at our own expense. We also pledge and swear that such honourable offices and ranks as viovode, castellan, judge, chamberlain, and to them similar, which according to common practice were held for life, we shall not entrust to any strangers, foreign to our land, unless they should reside within the lands of our Kingdome where such noble offices and ranks exist. These we wish to keep entirely without any

The Polish sources  153

alteration, observing their rights as they used to be observed in the times of the most dignified rulers, Wladyslaw, grandfather, and Kazimierz, uncle, our Polish kings. We also swear that no baron, knight, lord, or any other alien or stranger, regardless of their assets, will be made a governor, commonly known as starost, should their blood be not Polish, unless they should belong to the land and to a Polish family, for as long as it has no claims to dukedom. In fact we swear that no castle or fortress of the aforementioned Kingdom of Poland should be given by us to a prince or ruler, or someone with claims to dukedom, to rule and to hold for ever. We then affirm that no boroughs nor towns of the acclaimed Kingdom of Poland that can praise themselves with noble offices and courts, namely Cracow, Biecz, Sacz, Wislica, Wojnicz in the land of Cracow, Sandomierz, Zawichost, Lublin, Sieciechow, Lukow, Radom in the land of Sandomierz, and the borough of Leczyca in the land of Leczyca, further, Sieradz and Piotrkow in the land of Sieradz, in the land of Kujawy – Brzesc, Kruszwica and Inowroclaw, from Greater Poland Poznan, Miedzyrzec, Zbaszyn, Kalisz, Naklo, Konin together with Pyzdry – should fall to no one else but the locals or starosts who reside in our Kingdom. The Remaining boroughs will belong to us and to our successors who will be free to give them to strangers or to whoever they please ruling that burgraves, meaning the bailiffs of the castles, and people who answer to them will have the duty to present themselves before all starosts, judges, and those bearing the office of subiudex of the aforesaid Kingdom and answer to those who have claims against them, as other lords and peoples living under the Crown [. . . . . .] for as long as the case shall not require punishment for bloodshed, since in such cases we and our successors reserve for ourselves the exclusive right to decide. Apart from this, should we or our successors face the need to travel through the Kingdom we promise not to call at barons, knights, lords and their peoples, peasants, and villagers against their will and we shall not allow for anything to be demanded from them on the occasion of our visit; however, should we not be able to find a suitable place to lay our heads for rest then we shall order for food and all other necessities to be provided at our own expense. We also swear and assure that we should keep all the liberties of barons, magnates, lords, towns large and small, villages, landed properties and their peoples and peasants, and that we should not attempt to burden them against those liberties nor shall we allow for anyone else to do so. With regards to any other letters, directives, pacts, documents and liberties, given and awarded on one hand to one party by us or our successors, and on the other hand by the aforesaid barons and lords of the Polish Kingdom, which directly or in any other capacity contradict the claim of our daughters to the throne, we hereby annul, abolish, proclaim as invalid, useless, and of no bearing as

154  The Polish sources

we will for all of them to be deprived of their binding force since from now on only the current documents shall remain in force and for ever. For the tangible evidence of everything that was said above, and for perpetuity, we issued this document, validated by our pendent seal. Written down in Koszyce, on the seventeenth day of September, Anno Domini one thousand three hundred and seventy four, in the thirty first year of our reign. Translated by Weronika and Dean Edmunds from the Polish text published in: Historia ustroju i prawa w Polsce do 1772/1795. Wybór źródeł, ed. Sławomir Godek, Magdalena Wilczek-Karczewska, Warszawa 2006, pp. 32–35. 5. Privilege in Czerwinsk, 1422. During the fifteenth century Poland waged heavy, but mostly successful wars, against the German Teutonic Order in order to regain her Northern provinces seized by the Order in previous centuries. As the Polish army was mostly based on a noblemen levy, it gave them the opportunity to demand new privileges from the kings. This was also the case with the following privilege issued in Czerwińsk by King Władysław Jagiello, prior to the subsequent war with the Order, on July 23rd, 1422. (2). Similarly, for the peoples of our Kingdom to receive from our Majesty a fuller consolation, which would encourage them to, in turn, manifest their full loyalty and service, we swear that from this day forth we shall not take from any of our subjects, regardless of their titles, offices, Estate and rank, their hereditary estates, neither to the Treasury nor into our or our clerks’ disposal, nor shall we employ anyone or execute such actions as a punishment for perpetration of a misdeed or harm caused – unless previously decided by our courts and judges, who shall be called to such service by ourselves and our prelates and lords, and it is them who will carefully consider each case prior to their verdict. (3). From this day forth we shall not deny anyone their humble pledge made before our Majesty, to separate their lands from our villages and heritage, and we pledge not to forcefully join anyone to us. (6). Similarly, as we rule in unity as Supreme Ruler over all lands that are located within the boundaries of our Kingdom, it is, therefore, unjust for our subjects to be exposed to a multitude of courts. It is for this reason that we proclaim that all the peoples of our Kingdom, regardless of their status, honours, and rank, who at present and in the future wish to present their cases in one of our landed courts, be tried under one law, customs, and traditions in all lands of our Kingdom; our judges, therefore, whilst arbitrating in the courts over which they are presiding, shall not dare to introduce any

The Polish sources  155

customs, traditions, and rules other than those listed in the Statute of the Polish Kings and manifested in the traditions of the aforesaid Kingdom, to which they should for ever adhere. And should they rule anything that stands in contradiction to the aforesaid, their sentence shall be void of binding power and shamefully ignored. Given during Colo Campestri, where our soldiers lay on the banks of the Vistula, in the vicinity of the monastery in Czerwinsk of the dioceses of Plock, on the day after the feast of Mary Magdalene, in the year one thousand four hundred and twenty two. Translated by Weronika and Dean Edmunds from the Polish text published in: Historia państwa i prawa Polski. Wybór źródeł X-XX wiek, ed. Lech Grochowski, Andrzej Misiuk, Olsztyn 2003, pp. 31–33. 6. The Jedlna Privilege, 1430 In order to ensure succession for his son. King Władysław Jagiello issued the following privilege on March 4th 1430, which he then confirmed in Cracow on January 9th, 1433. § 16. Next we pledge and guarantee that we will not imprison for misdemeanours or faults any landowner possessing land property and we will not issue an arrest order against him and we will not punish him at all if the court in a judicious way does not prove his guilt and if the judges of the region in which the landowner lives do not deliver him into our hands or those of our starostes. An exception to this, however, will be a man who is caught stealing or committing any other public crime, such as for example arson, murder with malice aforethought, violation of maids and maidens, ravaging and looting villages and similarly those who do not want to pay the necessary bail as appropriate to the greatness of the misdemeanour or fault. We will not confiscate the goods and possessions of anyone unless duly authorised judges present him to us as a man condemned by the court This fragment was taken from the complete translation of the privilege published in: Pomniki praw człowieka w historii. Księga jubileuszowa Rzecznika Praw Obywatelskich, vol. I, ed. by Hubert Wajs, Rafał Witkowski, Warszawa 2008, pp. 85–89. 7. Statute of Nieszawa, 1454. During the Thirteen Years’ War against the Teutonic Order, on November 11th 1454, King Casimir IV Jagiellon issued privileges for Lesser Poland in order to mobilize noblemen which was followed by privileges for noblemen of subsequent provinces.

156  The Polish sources

(1). Firstly we swear giving our Royal word of honour that we shall keep wholly the rights of all peoples of our Kingdom that were granted to them by our predecessors. We shall not order for anyone to be deprived of their wealth and we shall not put anyone in shackles unless proven guilty. (2) We promise that should it ever befall us to go to war beyond the boundaries of our Kingdom, all those who follow in our footsteps we shall remunerate according to their landed rights, namely five grzywnas per each spear; we shall also compensate their losses and captivity, should they experience it, accordingly to what in such cases was granted by our predecessors. (4) Furthermore, as it befits that locals be granted precedence in the consideration of their services and qualities, we therefore promise that high positions and offices in all lands of our Kingdom will be entrusted absolutely to local people of merit, appropriate age, education, and life experience; high positions, thus, shall be awarded to people native of the land where a given position exists and whose hereditary estates are located within the boundaries of the land in question so that there will be no room for muttering and dissatisfaction. (6) As the estates and properties of our royal office were initially awarded not only to ourselves but also to grant protection and safety of the entire Kingdom, we solemnly swear that we shall not put any of the lands or castles, including those inhabited by starosts, in pledge, and should they be unjustly pawned by our nobles then the creditor shall loose whatever they paid for them. (7) We solemnly swear that from this day forth we shall not require payments nor tithes of four or six grosze from the gentry and their peoples but we shall content ourselves with the old practice of receiving two grosze from every field. (9) We also solemnly swear that we shall not issue letters suspending the judiciary or any documents that could prevent or delay the course of justice bringing harm to one of the parties – the defendant or the petitioner; should it, nevertheless, happen that a letter of such nature leaves our office, whether due to one person’s insolent obtrusiveness or for any other reason, it shall be deemed as void and the judges should not feel intimidated on its account when passing judgement. (12) We also declare that our starosts should not pass judgement on every matter, but only in four cases, namely: disruptions at the royal tract, when merchants are being harmed; arson; violent assault on a household, and rape committed against women. (15) We also ordain that every district shall hold a court journal where all the justly passed sentences and the list of all cases shall be written down; and each time when a petitioner comes to court

The Polish sources  157

and presents their case under a certain article, after due hearings and when the sentence is reached, a case shall be written down in the court journal so that in the future, when a similar claim enters the court, a similar verdict can be given. (16) All court proceedings shall follow the statutes written down in the book of our late and much lamented King Kazimierz as well as the statutes written down in Warka. In such proceedings there shall be no adjournments unless in a case of an illness that will have to be confirmed and stated under an oath, however, when a replacement date shall be appointed then it will be the duty of the defendant to attend the hearing at an agreed time. (23) Should anyone facing the majesty of the court be unable to duly give account of their case, or should struggle to speak and be left without a friend who could speak for them, then the court where the hearing takes place is obliged to provide them at their request with a suitable defence counsel. (31) We also solemnly swear that we shall not pass any new acts and we shall not order the gentry to go to war without the approval of general gatherings that are to take place in every land. Translated Weronika and Dean Edmunds from the Polish text published in: Historia państwa i prawa Polski. Wybór źródeł X-XX wiek, Lech Grochowski, Andrzej Misiuk, Olsztyn 2003, ed. pp. 34–39. 8. Nihil Novi Constitution, 1505. Constitution Nihil novi was the statute adopted by the Seym in Radom on May 30th, 1505. Its intention was most likely to enhance the creation of the parliamentary union between Poland and The Grand Duchy of Lithuania.1 Since the laws and general public acts in their nature refer not to a single man but to the nation altogether, therefore, during the current Seym gathered in Radom, together with all of our kingdom’s prelates, councils and landed emissaries, we found it just and right, and accordingly ruled that from this day forth nihil novi (nothing new) shall be ordained, neither by us nor by our successors, without a common agreement of senators and landed emissaries that would constitute a discredit and prove to be a burden to the republic and would bring damage and misfortune upon anyone, or that would lead to the altering of the general law and public freedom.

1 See: Wacław Uruszczak: “Sejm walny wszystkich państw naszych”. Sejm w Radomiu i konstytucja Nihil novi z 1505 roku, available on nihil_novi.htm#_ednref18

158  The Polish sources

Translated by Weronika and Dean Edmunds from the Polish text published in: Historia ustroju i prawa w Polsce do 1772/1795. Wybór źródeł, ed. Sławomir Godek, Magdalena Wilczek-Karczewska, Warszawa 2006, pp. 65. 9. The General Confederation of Warsaw, 1573. In the face of St. Bartholomew’s Day massacre in France and in order to maintain internal peace, especially during the uncertain period of the interregnum, after the death of the last king of the Jagiellonian dynasty, Sigismund II Augustus, the following act of confederation was adopted during a general gathering of senators and representatives of noblemen in Warsaw on January 28th, 1573. We hereby declare to all whom this concerns, ad perpetuam rei memoriam, that in this dangerous time, without a king and sovereign lord in residence, we have tried to assemble everybody urgently at this convention in Warsaw, following the examples of our predecessors, to guarantee among us that the peace, justice, order and the defence of the Commonwealth be maintained and upheld. With this stately and uniform permission, all together and cohesively, in the name of the whole Commonwealth, we do so promise and pledge on our faith, good nature and conscience. Firstly, we will not cause any breaches among ourselves or allow for any dismemberment as in the one and indivisible Common­ wealth, neither will one part choose without the other nor make factione privata with any other. But in this appointed place and time we will gather in a crown assembly and cohesively and calmly effect the act of election in accordance with God’s will until we reach a satisfactory conclusion. Also, we will not allow any lord to make a certain agreement of appointment until the first rights, privileges and freedoms of ours, which we have and which we will present post electionem, be sworn to. And it is to this that he must swear: common peace between divided and diverse people in faith and in religious rites must be maintained and we must never be drawn outside crown boundaries by any custom or royal request and he must never summon a levee en masse or solutione quinque marcarum super hastam without a resolution of the seym. ( . . . ) And since in the Commonwealth there is considerable dissidiumin causa religionis christianae, we will prevent this so that for this reason no harmful sedition between people should arise, which we can see in other kingdoms, and we promise this together, pro nobis et successoribus nostris in perpetuum, sub vinculo iuramenti, fide, honore et conscientiis nostris; although some of us are dissidentes de religione, peace between us will be maintained and for

The Polish sources  159

various faiths and differences in the Churches no blood shall be spilt and we will not punish confiscatione bonorum, with kind heart, carceribus et exilio, and we will not help any sovereignty or office to undertake such a process. And also, should anyone wish to shed blood somewhere, ex ista causa, all of us should stand against it, even if on the pretext of a decree or through some legal ploy, as anyone wishes This fragment was taken from the complete translation of the Confederation act published in: Pomniki praw człowieka w historii. Księga jubileuszowa Rzecznika Praw Obywatelskich, vol. I, ed. by Hubert Wajs, Rafał Witkowski, Warszawa 2008, pp. 106–108. 10. The Henrician Articles, 1573. Prepared during the election seym in May 1573, the Henrician Articles and Pacta Conventa became obviously a point of reference in the further debate on the form of government and noble freedoms. In 1652 Andrzej Maksymilian Fredro, a leading Polish republican thinker, published the historical and political treaty on that key moment in the formation of the system of government of the Polish-Lithuanian Commowealth, entitled: Gestorum Populi Poloni sub Henrico Valesio, Polonorum postea vero Galliae, in which he inter alia described and commented the regulations and followed the debate of that time. (In the text below Fredro’s comments to the Henrician Articles are in italics.) Among the laws the one which should be held in the highest esteem says that: Polish Kings cannot nominate, elect, or point to, or in any other way attempt to have a say who should succeed them to the Polish Crown. This is to ensure the freedom and unreserved right to elect a ruler, after the King should be called to the mercy of the Lord, remained with the Nobles. As if a King chooses their successor during their lifetime then the whole procedure ceases to be free election and becomes inheritance of the crown instead; independent voices of the voters become muffled in servitude, and the sceptre passes from hands to hands not by merit and qualities but by mere consanguinity. Should the election of a new ruler take place before the predecessor’s death, some, ill at ease at his presence; others won over by the dignity of office; and the rest willing to earn recognition for own glory, would cast their votes not to the benefit of the beloved Republic but according to the royal whim; election which takes place after King’s departure from this transitory state is not hindered by any reason allowing true freedom of choice. The King shall not use hereditary titles.

160  The Polish sources

The King cannot receive foreign emissaries or to send his emissaries abroad, nor commit knights to a war without approval from Councillors of both nations. The King may not call to arms without the consent of all states. Juridical decrees he is to pass not freely, led by his own whim, but in respect of the laws and the opinion of the Senators. A Council of sixteen Senators is to be called into being and work at the side of the King giving account of all the proceedings to the Republic of Poland. General Seym is to be called every two years. No offices, riches, ranks nor heritage are to be given to aliens and solely to the native, settled noblemen. The King shall not resort to the use of his private seal; instead he shall use a public seal entrusted to the hands of the Chancellor or Subchancellor. Crowns and public treasuries are to be locked and remain in the caring hands and under the seals of Senators and no one should have access to the aforesaid treasury in their absence. The King shall not marry without the say of the Council and the approval of the Senate, etc. Both Henrician Articles and Pacta Conventa translated by Weronika and Dean Edmunds from the Polish translation of Fredro’s Gestorum . . ., 2nd ed., Gdańsk 1659, by Władysław Syrokomla entitled: Jędrzeja Maksymiliana Fredro Dzieje narodu polskiego pod Henrykiem Walezym królem polskim a potem francuskim, Petersburg, Mohylew 1855, pp. 39–40, 50–51. More complete extracts of the Henrician Articles available at: Pomniki praw człowieka w historii. Księga jubileuszowa Rzecznika Praw Obywatelskich, vol. I, ed. by Hubert Wajs, Rafał Witkowski, Warszawa 2008, pp. 117–121. [ ] 11. Henry of Valois’ Pacta Conventa, 1573. Perpetual peace between the provinces and peoples of France and Poland is to be kept and observed for ever. Should the Kingdom of Poland ever find Herself in tribulation and in order to repel enemy forces She would require a mighty army, the Christian King shall rush to Her aid either with infantry or, shall the Nobles see it fit, support her with his assets. Likewise should France find Herself in trouble – Poland shall lend come to Her aid and assist Her in a similar manner and She will not deny her rescue. In a case of war with the Prince of Moscow four thousand French infantry soldiers, who will be owed six months pay, are to be sent from Poland (accordingly to the demand of the Nobles). The Elected King immediately after his arrival shall commence building at his

The Polish sources  161

own expense the fleet indispensable in the control the Baltic Sea, sailing on Narew, in addition to the purchase of a suitable harbour. His Royal Highness shall find a suitable port on the French coast where Polish goods and merchants may arrive and He shall see to it that the trading procedures are properly established. Each year of His Majesty’s reign, for as long as He is still a pilgrim with us in our earthly exile, he shall pay four hundred and fifty thousand zloty from the income gained from his provinces into the Treasury. Forasmuch as it has pleased the Almighty God to call to his mercy out of this transitory life our Sovereign Lord, King Zygmunt August, all debts that the late and dearly missed King left behind shall be paid off by our new Ruler at his own expense. Cracow Academy shall be by Him restored and its income provided. One hundred young men who receive education either at the aforesaid Academy or in Paris (according to the choosing of the Republic of Poland) His Royal Highness shall kindly support. His Majesty shall not arrive with a party of numerous companions that are to remain in Poland, except for a small group of servants indispensable in everyday life. The above said and everything that the emissaries on behalf of their luminous Rulers in their own tongue pledged, He shall see fulfilled. And all the rights, privileges, liberties, and prerogatives of peoples of every Estate, inhabitants of the Kingdom, and the Grand Duchy of Lithuania, as well as of all the provinces which to the aforementioned Realms belong, for each and every one of them and for all, which were by the luminous predecessors Kings and Dukes granted, or obtained in any other manner, legitimised through long standing use, or approved with unanimous consent from all Estates present at the current election, His Majesty shall keep wholly and intact and by an oath, in an appropriate manner, at His coronation He shall affirm and protect with suitable letters. 12. The Cardinal Law, 1768. Following the Great Northern War, and especially after the War of the Polish Succession, the Commonwealth turned into a Russian protectorate. Russia used the noble freedoms, such as liberum veto, election of the monarch or religious liberty, as the instrument of her influence. In 1768, under Russian pressure, the Seym adopted the Cardinal Law which was guaranteed by Russia. A Separate Second Act, which outlays the perpetual cardinal laws of the most beloved Republic of Poland which under no circumstance should ever be changed, and materias Status, which should be decided solely during free Seym.

162  The Polish sources

I. Legislative power in the Republic of Poland is held by three Estates, namely by the King, Senators and Knighthood, and so it should remain for ever more; and it shall not be reserved to one Estate over the other two, or to two of them over the remaining one; for this reason is will not be heard of that without unanimity and approval of all three Estates any lands or landed estates located within the Kingdom, or royal estates and assets, as well as lands of clergymen and laymen shall be alienated, pawned, shifted, or sold; this is to state the exception of the Interrex period when the aforesaid power lays solely with two remaining Estates, and should these two Estates unanimously vote in materiis Status, and per pluralitatem in economical matters as well as to determine the time of Election of the new Ruler, how long should it take and on which day it shall take place, then such decisions should be binding in the same way as if it was decided by all three Estates. V. Until now it has proven right for the Polish Kings to be chosen by the votes of the Republic and as His Royal Highness, our beloved King Stanislaw August gracefully ruling, was elected by the very same nation, and with the approval of the aforesaid glorious Republic, making an oath to all the peoples by proclamation of his pacta conventa, to which he strictly and honourably holds, therefore on his part there is no danger for the free Election to be disrupted, nevertheless we wish to stress, since there is never enough care and attentiveness for such sweet freedom, that for this reason we wish to solemnly warn and consolidate for the free, unanimous Election of Kings to proceed in the future as it is now legislated, and for succession to the Polish throne to never, and under no pretences be introduced and allowed. XII. Similar equality and religious freedom, described and defined in a separate act, awarded to all Dissenters and non-Uniates Oriental Greeks with noble titles, shall be for ever binding and preserved. XVII. Liberum veto during free Seym, in materiis Status should be fully kept, which matters are to be perpetually decided in unanimity, and through that the right of each member of the Seym to stop activitatis in materii Statis by loudly and firmly stating their opposition en voice or via a manifest, shall for ever remain en force. Translated by Weronika and Dean Edmunds from Volumina Legum, vol. 7, Petersburg 1860, pp. 276–285. 13. Constitution Convictions in crime matters, 1776. One of the most notable examples of Polish Enlightenment was the abolition of tortures adopted by the Seym of 1776. It has been proven on many occasions that the common practice of obtaining confessions by the way of torture is a method most fickle when it comes to convicting wrongdoers, and at the

The Polish sources  163

same time most cruel to prove ones innocence, and since there exist supreme methods described in our common law and state manifests, indicia, in recenti crimine deprehensio, propria oris confessio, inquisitions, as well as other similar matters, which are furthermore just and do not stand in opposition to the common laws. Therefore, we for ever forbid all our jurisdictional Courts, which posses the jus gladii, to prescribe torture in order to obtain confessions and we inform that a punishment tanquam pro crimine awaits all those who this order of ours breach. The aforesaid jurisdictions are therefore obliged to follow the letter of the abovementioned rights regulating convictions in all criminal matters. And should they require perfecting, we promise to amend, rewrite, or acclaim them at the nearest Seym. According to the same rule, death punishment is to be abolished in all Courts and subsellia in criminal matters of witchcraft and in causis maleficii. It is made known also that the Grand Duchy of Lithuania shall, too, respect the aforesaid provisions. Translated by Weronika and Dean Edmunds from Volumina Legum, vol. 8, Petersburg 1860, pp. 546–547. 14 The Constitution of the May 3rd 1791. The catastrophe of the first partition of the Polish-Lithuanian Commonwealth came as a shock to society and accelerated the process of internal reforms. The peak of this process was the activity of The Great Seym 1788–1892 (the Four-Year Seym), during which the Constitution was adopted. Persuaded that our common fate depends entirely upon the establishing and rendering perfect a national constitution; convinced by a long train of experience of many defects in our government, and willing to profit by the present circumstances of Europe, and by the favourable moment which his restored us to ourselves; free from the disgraceful shackles of foreign influence; prizing more than life, and every personal consideration, the political existence, external independence, and internal liberty of the nation, whose care is entrusted to us; desirous, moreover, to deserve the blessing and gratitude, not only of our cotemporaries, but also of future generations; for the fake of the public good, for securing our liberty, and maintaining our kingdom and our possessions; in order to exert our natural rights with zeal and firmness, we do solemnly establish the present Constitution, ( . . . ) Article I. The Dominant National Religion The Holy Roman-Catholic Faith, with all its privileges and immunities, shall be the dominant national religion. The changing of it for any other pesuation is forbidden under the penalties of apostasy: but

164  The Polish sources

as the same holy religion commands us love our neighbors, we therefore owe to all people of whatever persuasion, peace in matters of faith, and the protection of the government; consequently we assure, to all persuasions and religions, freedom and liberty, according to the laws of the country, and in all dominions of the Republic. Article II. Nobility, or the Equestrian Order Revering the memory of our ancestors with gratitude, as the first founders of our liberties, it is but just to acknowledge, in a most solemn manner, that all the preeminence and prerogatives of liberty, both in public and private life, should be insured to this order; especially laws, statutes, and privileges, granted to this order ( . . . ) are by the present act renewed, confirmed, and declared to be inviolable. We acknowledge the rank of the noble Equestrian order in Poland to be equal to all degrees of nobility – all persons of that order to be equal among themselves ( . . . ) and in particular, we preserve and guarantee to every individual thereof personal liberty and security of territorial and moveable property, as they were formerly enjoyed; nor shall we even suffer the least encroachment on either by the supreme national power (on which the present form of government is established), under any pretext whatsoever, contrary to private rights, either in part, or in the whole; consequently, we regard the preservation of personal security and property, as by the law ascertained, to be a tie of society, and the very essence of civil liberty, which ought to be considered and respected for ever. It is in this order that we repose the defence of our liberties and the present constitution: it is to their virtue, valour, honour, and patriotism, we recommend its dignity to venerate, and its stability to defend, as the only bulwark of our liberty and existence. Article IV. Towns and Citizens The law made by the present Diet, entitled, Our royal free towns within the dominions of the Republic, we mean to consider as a part of the present constitution, and promise to maintain it as a new, additional, true, and effectual support, of our common liberties, and our mutual defence. Article IV. The Peasants and Villagers This agricultural class of people, the most numerous in the nation, consequently forming the most considerable part of its force, from whose hands flows the source of our riches, we receive under the protection of national law and government, from the motives of justice, humanity, christianity, and our own interest well understood: enacting, that whatever liberties, grants, and conventions, between the proprietors and villagers, either individually or collectively, may be allowed in future, and entered authentically into; ( . . . ). Thus having insured to the proprietors every advantage they have a right to from their villagers, and willing to encourage most effectually the population of our country, we publish and

The Polish sources  165

proclaim a perfect and entire liberty to all people, either who may be newly coming to settle, or those who, having emigrated, would return to their native country; and we declare most solemnly, that any person coming into Poland, from whatever part of the world, or returning from abroad, as soon as he sets his foot on the territory of the Republic, becomes free and at liberty to exercise his industry, wherever and in whatever manner he pleases, to settle either in towns or villages, to farm and rent lands and houses, or tenures and contracts, for as long a term as may be agreed on; with liberty to remain, or to remove, after having fulfilled the obligations he may voluntarily entered into. Article V. Form of Government, or the Definition of Public Powers All power in civil society should be derived from the will of the people, its end and object being the preservation and integrity of the State, the civil liberty, and the good order of society, on an equal stale, and on a lasting foundation. Three distinct powers shall compose the government of the Polish nation, according to the present constitution; viz. 1st. Legislative power in the States assembled. 2d. Executive power in the King and the Council of Inspection. 3d. Judicial power in the Jurisdictions existing, or to be established. Article VI. The Diet, or the Legislative Power ( . . . ) The law concerning the Dietines, or primary elections, as established by the present Diet, shall be regarded as a most essential foundation of civil liberty. The majority of votes shall decide every thing, and every where; therefore we abolish, and utterly annihilate, liberum veto, all sorts of confederacies and confederate Diets, as contrary to the spirit of the present constitution, as undermining the government, and as being ruinous to society. ( . . . ) Article VII. The King, or Executive Power. The most perfect government cannot exist or last without an effectual executive power. The happiness of the nation depends on just laws, but the good effects of laws flow only from their execution. Experience has taught us that the neglecting this essential part of government has overwhelmed Poland with disasters. Having, therefore, secured to the free Polish nation the right of enacting laws for themselves, the supreme inspection over the executive power, and the choice of their magistrates, we entrust to the King, and his Council, the power of executing the laws. ( . . . ) This translation comes from: New Constitution of the Government of Poland established by the Revolution, the Third of May, 1791, 2nd edition, London 1791. The full text is available at: https://

166  The Polish sources

15. Preamble to the Constitution of the Republic of Poland of 2nd April, 1997 Having regard for the existence and future of our Homeland, This recovered in 1989, the possibility of a sovereign and democratic determination of its fate, We, the Polish Nation – all citizens of the Republic, Both those who believe in God as the source of truth, justice, good and beauty, As well as those not sharing such faith but respecting those universal values as arising from other sources, Equal in rights and obligations towards the common good – Poland, Beholden to our ancestors for their labours, their struggle for independence achieved at great sacrifice, for our culture rooted in the Christian heritage of the Nation and in universal human values, Recalling the best traditions of the First and the Second Republic, Obliged to bequeath to future generations all that is valuable from our over one thousand years’ heritage, Bound in community with our compatriots dispersed throughout the world, Aware of the need for cooperation with all countries for the good of the Human Family, Mindful of the bitter experiences of the times when fundamental freedoms and human rights were violated in our Homeland, Desiring to guarantee the rights of the citizens for all time, and to ensure diligence and efficiency in the work of public bodies, Recognizing our responsibility before God or our own consciences, Hereby establish this Constitution of the Republic of Poland as the basic law for the State, based on respect for freedom and justice, cooperation between the public powers, social dialogue as well as on the principle of subsidiarity in the strengthening the powers of citizens and their communities. We call upon all those who will apply this Constitution for the good of the Third Republic to do so paying respect to the inherent dignity of the person, his or her right to freedom, the obligation of solidarity with others, and respect for these principles as the unshakeable foundation of the Republic of Poland. The complete English text is available at: prawo/konst/angielski/kon1.htm

5 RULING BY LAW AND BY CONSENT Monarchy and noble estate in the Grand Duchy of Lithuania Artūras Vasiliauskas

Introduction The development of political and constitutional arrangements that imposed limits on the monarchical power and provided a framework for personal and political liberties in the Grand Duchy of Lithuania (further: GDL) is closely related to the rise of the noble estate as a fully fledged social force interacting with a monarch in ruling the state. One can risk a statement that in GDL this process was incremental and has started sometime in the fourteenth century, was vigorously expanding from the second part of the fifteenth century and was fully implemented by the end of sixteenth – the beginning of seventeenth century when the third Lithuanian statute was adopted in 1588 and the broad political class among the Lithuanian nobility has been increasingly asserting its active citizenship in the parliamentary system of the Commonwealth of the Two Nations (further: the Commonwealth). The third estate was weak and never played an active political role in the GDL as was usual in Western Europe, and its concerns were mostly confined to acquiring and protecting a Magdeburgian type of self-government in major cities, and up to the reforms at the end of the eighteenth century its voice was practically not heard in general matters of state. In order to demonstrate how political freedoms have developed and their protection has been enshrined by law in GDL, one needs to provide a wider historical background that includes the brief overview of key developments in internal politics and international circumstances. The founding of the Lithuanian state, its early history and its fundamental upheaval caused by the belated adoption of Christianity are crucial in understanding how the need for privileges limiting the monarchical power has emerged and the legal system shaped by these privileges has evolved. The article discusses the origins, codification, protection and the expansion of the principles of freedom that influenced the development of state institutions and

168 Artūras Vasiliauskas

the rise of noble democracy as well as briefly comments upon how these principles are reflected in the historical memory of contemporary Lithuanian society and the constitutional framework of Lithuanian state.1

The emergence of the Lithuanian state Even now the GDL can be located only somewhere at the margins, if not beyond the reach of standard understanding of medieval and early modern European history.2 To the large extent it can be accounted for by the fact that Lithuania, except for the brief period of independence between the two world wars, which was lost in 1940 as a result of Molotov Ribentrop pact, has been absent from the political map of Europe for nearly 200 years, firstly as the part of Tsarist Russia and then, nearly for 50 years under the occupation of Soviet Union. Only for the last 25 years of Lithuania treading the path of re-integration with Europe has it been re-discovering its quest for freedoms and tolerance rooted in the history of GDL while Belarus and Ukraine that also used to be constituent parts of the GDL and emerged as the independent states after the collapse of Soviet Union are engaged in an uneasy search for the historical underpininings of their identity. However, the interest in the GDL is growing not only in international historiography, but has also gained a new momentum in countries directly related to its history – Lithuania, Belarus, Ukraine and Poland. The traditions of academic research into the GDL in these countries have become the basis for the informed discussions on the shared heritage and its impact on the national historical awareness.3 The GDL is the distinct case of peripheral culture, mainly due to its peculiar geographical position that also played a crucial role in its cultural diversity.4 Its inconvenient geographical position and remoteness from main centers of civilization determined the belated arrival of cultural phenomena both the Western Europe and the Byzantium. The written culture, large-scale brick and stone architecture, European state institutions as well as legal and political thought have reached GDL only in the late middle ages. More importantly, Western European culture of Latin Christendom came to the GDL through intermediaries, mostly through Poland and therefore its layer was even thinner, its character even more imitatory than

  1 I am grateful to Mr Vladas Liepuonius, a doctoral student at the History Department of Vilnius University, for his assistance in preparing this article.   2 See however Mathias Niendorf, Das Großfürstentum Litauen Studien zur Nationsbildung in der Frühen Neuzeit (1569–1795) (Wiesbaden, 2006) also available in Lithuanian translation. Hopefully this comprehensive research into a “missing link” between medieval nationes of the GDL and modern nations, signals the growing interest of European historical scholarship into the GDL as a complex sociocultural region with a spectacular record of diversity and intercultural interactions.  3  See Alfredas Bumblauskas (ed.), Lietuvos Didžiosios Kunigaikštijos tradicijos ir paveldo dalybos (Vilnius, 2008) for the debate on the dilemmas of sharing and “dividing” the common heritage of the Grand Duchy of Lithuania among the different nations and cultural traditions.   4 The importance of this is stressed, for instance, by the editors of the influential compendium of GDL culture in their collective preface, see Vytautas Ališauskas, Liudas Jovaiša, Mindaugas Paknys, Rimvydas Petrauskas and Eligijus Raila (eds.), Lietuvos Didžiosios Kunigaikštystės kultūra: tyrinėjimai ir (Vilnius, 2001), p. 7.

Ruling by law and by consent  169

creative and consistent. Besides, the Catholic cultural model coexisted and very soon relegated to the secondary role the Eastern Orthodox Christianity dominant in the Slavonic lands of the GDL that were incorporated during its speedy expansion in the thirteenth and fourteenth centuries. In short, from the end of the fourteenth century the GDL became a true antemurale christianitatis of Latin Europe and the most eastern country of the Central European historical region. As a matter of fact, Lithuania became a historical agent only when it was confronted with a Latin Europe. Up to the thirteenth century this area is only accidentaly mentioned in the Western historical documents. The pagan tribes of the Eastern Baltic began to face genuine pressure from Western Europe from the beginning of the thirteenth century when the process of German colonization in Scandinavia, Poland, Czech lands and Hungary, where it had had a peaceful character since their rulers converted to the Catholicism, expanded to the new territory. However, at this stage the German colonizers did not recognize the right of the pagan rulers to accept baptism voluntarily, treating the newly discovered societies as an object of conquest and domination; the baptism was only a way to formalize this approach.5 In 1201 the bishop of Livonia Albertus had built the Riga castle and the town of Riga began to grow rapidly around it as a centre of Teutonic expansion after he established the order of Sword Brothers, following the model of monastic military orders that were fighting with infidels in Palestine, in the next year. These events not only accelerated the migration of German settlers to Livonia, but also meant that the new well organized and formidable military as well as political force entered the region. Some time later, in 1230 the knights of the Teutonic order of crusaders responded to the invitation of the Masurian Duke Conrad by settling down in the land of Kulm (now Northen Poland) and focusing their aggression primarily against the Western Baltic tribes.6 The Baltic tribes that inhabited roughly the territory of contemporary Lithuania, facing the prospect of conquest by the Crusaders, started to self-organize and unite, gradually creating the early Lithuanian state as a consequence. Another important circumstance affecting the development of the Lithuanian state was the political fragmentation and decline in Poland and Kievan Rus in the thirteenth century that made them attractive and regular targets for raids by Lithuanian war bands. Polish Henryk Łowmiański, in his fundamental study of early Lithuanian society, pointed out that the rise of the monarchy in Lithuania is closely related to its energetic expansion, especially in Rus and the intensive robbery warfare that led to the growth of the professional military class. Its members were not

 5  Edvardas Gudavičius, Lietuvos istorija nuo seniausių laikų iki 1569 metų (Vilnius, 1999) pp. 37–38. See also his exhaustive account of Crucades in the Baltics in the thirteenth century: Edvardas Gudavičius, Kryžiaus karai Pabaltijyje ir Lietuva XIII amžiuje (Vilnius, 1989).   6 In the Lithuanian popular historical memory the term Crusader has nothing in common with the Christian warriors fighting in the Holy land. It is a strongly negative term referring to the enemy who was seeking to exterminate the Lithuanians in the middle ages. Probably the best account of the Teutonic order in the Baltics was written by Hartmut Boockmann, Der Deutsche Orden. 12 Kapitel aus seiner Geschichte (München, 1981), also available in Polish, Lithuanian and Russian translations.

170 Artūras Vasiliauskas

inclined to combine their military activities with labour in agriculture and therefore their maintenace had to be ensured by tributes – the only way of regularly extracting sufficient resources from the population. This sort of coercion required the new level of state organization7. The intensity of raids, choice of targets for robbery and change of alliances depended on the most important proto-aristocratic groupings and social differentiation, as well as a more elaborated social structure, has been emerging as the result of their interactions. These circumstances were favourable for the growing power of provincial dukes and the birth of local aristocracy. In the 1219 peace treaty between twenty-one Lithuanian provincial dukes and the Duchess of Volhynia they were already arranged according to their rank and five of them – Živibundas, Daujotas, Dausprungas, his brother Mindaugas and brother of Daujotas Viligaila – at least according to the chronicle describing the treaty, were singled out as seniors. This important testimony of the emerging Lithuanian statehood reveals the existence of hierarchical division within the ruling elite and the confederal nature of the political formation that was soon set to become a unified state8. The model of confederacy of provincial dukes began to crumble when Mindaugas became the head of his family and after a couple of decades managed to consolidate his power in the whole of Lithuania. His capability to integrate the war bands of other chieftains into his military force was one of the most important causes of his ascendancy. As Łowmiański was adamant to stress, the emergence of the Lithuanian monarchy was not based on the evolution of tribal alliances; on the contrary it was growing from their ruins and its key formative factor was the organization of the military bands.9 Mindaugas also expanded his intensive political and military activities beyond Lithuania: he annexed Yotvingians, the neighbouring Baltic tribe to the south of Lithuania and Novogrodek, an important regional trade centre. However implementation of his and his allies’ aggressive policies, especially consolidation of his power has met with fierce resistance. It was the danger of losing power that led Mindaugas to the decision to adopt Christianity and crown himself the king of Lithuania. In this way he expected not only to eliminate the threat of the Teutonic knights, but also to reinforce the fragile authority of a monarch in the emerging unified state. In 1251 as a result of mediation of the grand master of Livonian order of Sword brothers Andreas von Stirland Mindaugas was baptized and in 1253 the Pope’s appointed bishop crowned him the King of Lithuania, which became the fief of the Holy See. Mindaugas was the first and the last king of Lithuania and his baptism and coronation was the first attempt to integrate the country into Latin Europe. The author of his authoritative biography compares him to Clovis I, the unifier of the Franks under his newly founded Merovingian dynasty, who converted to Catholicism and was baptized in year 496.10

 7  Henryk Łowmiański, Studia nad początkami społeczeństwa i państwa litewskiego, T. 2 (Wilno, 1932), pp. 348–349.  8  Полное Собрание Русских Летописей. Том 2 Ипатьевская летопись (Санкт Петербург, 1908) pp. 735–736.  9 Łowmiański, Studia nad p. 369 Vol II. 10  Edvardas Gudavičius, Mindaugas (Vilnius, 1998) p. 307.

Ruling by law and by consent  171

Scholars are starting to question the usual understanding of the political system of the early Lithuanian state from its formation in the middle of the thirteenth century to the late adoption of Christianity in 1387 as a patrimonial monarchy by demonstrating that the ruler was far from exercising his power in an arbitrary manner. In order to achieve his goals he had to rely on the ascendant higher aristocracy. The latter had good opportunities to assert its influence not least because the order of dynastic inheritance of power has never established itself before Jagiellonian dynasty and different aristocratic groupings could trade their support for favours during the struggles for the throne following the demise of each ruler. In contrast to the Baltic tribes in Prussian and Livonian territories, the Lithuanian nobility at the beginning of the thirteenth century was more differentiated. From the chronicle’s information provided on the aforementioned 1219 Volhynia treaty one can see the more or less formed layer of dukes, who were at the disposal of bigger war bands, who controlled larger territories and who expanded their power networks beyond their provinces by marital alliances. However, the rise of the upper layer of dukes did not displace other groups of lesser nobility and the stratification of noble estate was developing. As in other early “barbaric” societies the Lithuanian aristocracy is constantly depicted by the historical sources as surrounded by “kinsmen and friends” (lat. amici et consanguinei, Germ. vrunde und mage). Although the scarce source material does not name the particular individuals who comprised Mindaugas’ grouping it is obvious that it existed.11 In such group ties between its members were usually strengthened by intermarriage. Thus, alongside vertical subordination grouping’s cohesion was ensured by horizontal ties of amity.12 Most importantly, during the rise of the state this provincial aristocracy gradually transformed itself into a monarch’s aristocracy that was given new opportunities and roles in ruling the state, and a monarch was exploiting this to his advantage by promoting individuals close to him. On the other side a monarch was not able to pursue any more ambitious policies without the support of the aristocracy while ignoring it he even risked to lose his power.

The ruling dynasty After his baptism and coronation Mindaugas’ further efforts to entrench his power were successfully frustrated by the pagan opposition. In 1263 Mindaugas and his sons were murdered and the state was plunged for a few years into the struggle for power. The result of this crisis was the abandonment of Christianity and the subsequent rise of the single ruling dynasty at the end of the thirteenth century. Its emergence is one the most important traits of medieval statehood. The dynasty

11 Artūras Dubonis, Darius Baronas, Rimvydas Petrauskas, Lietuvos istorija: XIII a. – 1385. Valstybės iškilimas tarp Rytų ir Vakarų (Vilnius, 2011) T. 3, p. 246–246. This monograph is a part of the latest multi volume synthesis of the Lithuanian history, but rather than just recounting the established facts and interpretations it ventures into a strongly revisionist account of early Lithuanian statehood and contains a lot of new insights. 12  Ibidem, p. 310.

172 Artūras Vasiliauskas

was given a name of the Gediminids by sixteenth century chronicles in order to give a prominence to its most distinguished early representative Grand Duke Gediminas (ruled in 1316–1341). One of his grandchildren was the Grand Duke of Lithuania and the king of Poland Jogaila (Pol. Jagiełło) who established the Jagiellonian dynasty, one of most powerful in Central Europe in the fifteenth and first half of the sixteenth century. Although Gediminas was held to be the founder of the ruling dynasty the historical sources mention a few grand dukes from his family preceding his reign. However, no clear family connections or the tradition of historical continuity linking the Gediminids to the king Mindaugas were ever uncovered. During Gediminas’s reign one can observe more clearly the interaction between a monarch and the aristocracy, not least because of the broader source material available. The image of the “Grand Ducal Lithuania” fostered by the Lithuanian historical tradition is still powerful today: the fourteenth century and the first three decades of the fifteenth century were the glorious time when Grand Dukes Gediminas, Algirdas (in diarchy with Kęstutis) and Vytautas reigned with confidence and expanded the territory of the country from the Baltic to the Black sea. This line of thinking tends to distinguish sharply between to the period when the Grand Dukes were dominant and the period when the grand aristocracy had risen, emancipating itself from them and establishing its own dominance supplementing a monarch’s rule.13 Such interpretation escalates into the stereotype that during the time of the grand dukes the state was rapidly expanding and growing in might while the gradual empowerment of the noble estate caused the decline, resulting in the parliamentary chaos of noble democracy and the destruction of statehood. However, the more moderate approach suggests viewing the social and political history of the GDL as the duality of monarchical and aristocratic power.14 It is important to stress that even before the emergence of the state the tribal gatherings existed and that in line with established customs were making decisions about war and peace and in general about relations with neighbours.15 During the process of consolidation of monarchical power such gatherings gradualy transformed into assemblies summoned by a monarch. These assemblies were not limiting his power; on the contrary, they were one of the most effective ways to ensure the stability of his rule.16 During the reign of Gediminas one can trace back the recurring pattern of the ruler’s informal consultation with members of the highest aristocracy who were regularly called upon to hold a council on various matters. He, as Mindaugas before him and Jogaila after him, was making decisions on some issues of foreign policy “with

13 Rimvydas Petrauskas, Lietuvos diduomenė XIV a. pab. – XV a: sudėtis, struktūra, valdžia (Vilnius, 2003) p. 9. 14  Ibidem, p. 10. 15 Henryk Łowmianski provides a detailed analysis of the Baltic tribal gatherings: Studia nad vol. II pp. 190–202. 16 Artūras Dubonis, Darius Baronas, Rimvydas Petrauskas, Lietuvos istorija . . . , p. 321.

Ruling by law and by consent  173

the agreement of his sons and all his boiars” and this was more than a formulaic nicety, but reflected political reality, as it happened when he had to appease the AntiCatholic feelings of his councillors during the negotiations with the papal legation in 1324, by persuading the latter to uphold a truce without first effecting his baptism.17 The composition of consultative meetings was decided exclusively by the grand duke and it is clear that, depending on the needs and situation a more narrow circle of individuals was called upon for more regular consultations while the extended assembly were summoned to make the most important decisions. However, it is important to understand that the early monarchy operated not as a territorial state governed by the set of institutions, but as a political formation based on interrelationships between individuals.18 The names of the monarch’s advisors in the fourteenth century occasionally surface in the sources, for instance, Grand Duke Gediminas includes in his circle of advisors not only members of high aristocracy, but also Christian monks, while in the beginning of the fifteenth century Grand Duke Vytautas took a great step towards institutionalizing advisory function by introducing the permanent councillors (in Latin: conciliarius, in german: rat).19 The paucity of historical evidence does not allow us to explore in greater detail how the informal consultation has been functioning but it is clear that although the ruler was in no way formally obliged to consult his decisions with anybody, he often did it, usually within a narrow circle of the most influential or trusted individuals. Also, the rulers and those who aspired to rule began to appreciate the real or enacted support from their subjects as a way to boost their legitimacy. For example in 1398, the Lithuanian aristocrats and nobility gathered in Salynas and declared Grand Duke Vytautas, who was seeking to assert his power in the GDL, their sovereign ruler. Although historians tend to agree that this was rather a spectacle orchestrated by Vytautas himself rather than a genuine political will expressed by independent nobility, the very need to organize it speaks for itself.20 The development of GDL institutions cannot be satisfactorily explained by the evolutionary approach alone tracing back their continuity from the earliest political formations. The political crises and social upheavals also have contributed to their shape. Not a single Gediminide ruler inherited power without the conflict, and that provided additional opportunities for the aristocracy to play an active role in political life. Essentially, all families of the top aristocracy came from one rather well defined region – Lithuania proper, that is, ethnic Lithuanian lands, that comprised only a small part of the hugely expanded state, and were closely interrelated. Therefore, the emergence of more or less integrated and strong aristocratic

17 Stephen Christopher Rowell, Lithuania ascending: a pagan empire within east central Europe, 1295–1345 (Cambridge, 1997) pp. 61–62. 18 Artūras Dubonis, Darius Baronas, Rimvydas Petrauskas, Lietuvos istorija . . .  p. 300. 19  Rimvydas Petrauskas, “Lietuvos didžiosios kunigaikštystės seimo ištakos: Didžiojo kunigaikščio taryba ir bajorų suvažiavimai XIV – XV a.” Parlamento studijos 3 (2005), pp. 13 and 15. 20 The author of the latest Vytautas’ political biography asserts bluntly that the Lithuanian nobility by no means acted spontaneously and was ordered to do it by Vytautas himself see: Jarosław Nikodem, Witold Wielki Książę Litewski (Cracow, 2013), p. 186.

174 Artūras Vasiliauskas

elite precluded the splitting of the GDL despite the frequent quarrels and rifts between the members of the ruling dynasty.21 Unfortunately, one can tell more about the membership of this elite only from the end of the fourteenth century when the written culture was given the huge impetus by the adoption on Latin Christendom. The international situation in Central Europe and the GDL internal tensions aggravated by the increasing and relentless military pressure of the Teutonic knights, justifying their aggression by the ideology of forcible conversion of pagan infidels to Christianity, compelled the Grand Duke Jogaila who had recently acceded to power to explore new solutions that led to fundamental change in years 1385 and 1386. It was a period when three Central European dynasties that had been ruling their countries from the beginings of statehood: the Přemyslids in Bohemia and Moravia, the Arpads in Hungary and the Piasts in Poland died out. This inevitably provoked the intensive search of new dynastic alliances as well as coronations of the foreign rulers, and the dynastic mode of uniting different political entities into larger units under the rule of a single monarch gained new momentum in the region.22

Union of Krėva (Krewo) and the Jagiełłonians After the vicious struggle for power during which his uncle Grand Duke Kęstutis was murdered in captivity and his cousin and Kęstutis’ son Vytautas was forced to flee to the Teutonic order in Prussia, Jogaila who came out of it as a winner was nevertheless acutely aware of his weak position and the necessity to reinforce it. As in the case of Mindaugas the solution was found in the international arena, but this time the Latin Christendom was approached through Poland. Until the Union of Krėva the relationships between Poland and the GDL were limited to episodic marital alliances – one Gediminas daughter was married to Masurian Duke Wacław and another to the son of Polish king Władysław Łokietko and future king of Poland Casimir III the Great – but more often to occasional military skirmishes and border disputes. Therefore, the fact that the monarch of a hardly familiar country with a tenuous record of international recognition became the King of Poland was extraordinary and can be explained only by the political resolve of Polish grandees, especially from the Lesser Poland and the staunch support of Jogaila’s associates. His genealogical link to the extinct Piasts through his grandfather Gediminas’ daughers, the usual argument in dynastic alliances, did not play any role, since most probably contemporaries were not aware about it.23 The Krėva union in 1385 and the marriage of the Grand Duke to Jadwiga, the underage Queen of

21 Artūras Dubonis, Darius Baronas, Rimvydas Petrauskas, Lietuvos istorija . . . , p. 359. 22  Rimvydas Petrauskas, ‘Vengrija-Lietuva-Lenkija: dinastinių unijų paieškos’ in Šventoji Jadvyga ir Lietuva (Vilnius, 2010) pp. 17–18. 23 Artūras Dubonis, Darius Baronas, Rimvydas Petrauskas, Lietuvos istorija . . . , p. 542.

Ruling by law and by consent  175

Poland, a year later had an enormous impact on the whole history of the GDL.24 The Union that united the Polish Crown and the GDL by the person of a single monarch was also a milestone in the relationship between the monarch and his subjects in the GDL. Jogaila commited himself and his associates to adopt the Christian faith in Catholic rite and to baptize his pagan Lithuanian subjects as well as to include (lat. applicare)25 Lithuanian lands into Poland. Soon after coronation he also embarked on legislation that marked the beginning of written European law in Lithuania. His three privileges based on medieval legal tradition issued in February and March of 1387 created new institutional realities and provided existing social ones with formal definitions. Along with establishing the bishopric of Vilnius and granting the Magdeburgian Law to the capital city of Vilnius, he conferred a series of rights to the nobility. The privilege confirmed on February 20 conferred the Lithuanian nobles who were performing the duty of military service and who adopted the Catholic faith the right to inherit and freely possess as well as sell, transfer, exchange, give and donate their patrimonial estates. The privilege stressed that the granting of this right followed the similar Polish laws, since from now on the Lithuanian and Polish nobilities became connected as “the subjects of the single Crown” (“eidem coronae subjectos”). Similarly, the privilege established, according to the Polish model, the office of the territorial judges and bailiffs. Also, the king ceded (“concedimus and donamus”) to the nobles the full right to arrange marriages of their daughters and grand-daughters as well as any other women related to them by blood, including widows according to the Catholic rite.26 Thus, for the first time the monarch has restrained his power over his subjects by defining areas where the law became a higher authority than his will. The rights conferred by this privilege were reaffirmed by the joint privilege of King Jogaila and the Grand Duke Vytautas issued on the occasion of the Horodło Union in 1413 by which the Lithuanian nobility “in order to mark our nobleness” (“ad insigniendum nominis nobilitatis nostre tytulum”) adopted the coats of arms of the Polish nobility which, according to the Lithuanian signatories of the Union, also assisted them in acquiring “liberties, immunities, privileges, exemptions as well as many other benefits and prerogatives”

24 The alternative project, lobbied by Jogaila’s Orthodox Christian mother, of his marriage with the daughter of the Grand Duke of Moscow Dmitri Donskoi with the possible adoption of Orthodox Chirstian faith did succeed. Some scholars assert that this marriage would have contributed to the old foreign policy line of Lithuanian monarchs seeking to make Lithuania the second Kiev. See: Darius Baronas, “Bizantija ir Lietuva. Saugus atstumas, atsargus bendrumas” // Naujasis Židinys – Aidai, No. 2, (2012). 25 The Act of Krėva has become the object of the long lasting discussions on the nature of the Union in Polish and Lithuanian historical literature. Some historians tend to interpret it as the direct proof of GDL’s incorporation into Poland, while others draw attention to the vagueness of the Latin term “applicare” and the legal status of the Krėva agreement implying GDL’s surviving sovereignity. See for example the comprehensive review of the scholarly debates on this subject in Polish and Lithuanian historiography and expounding of the “sovereignist” position by Jūratė Kiaupienė, ‘1385 metai, Krėva: pasiklydę tarp tikrovės ir mito’ in 1385 m. rugpjūčio 14 d. Krėvos aktas (Vilnius, 2002) pp. 39–68. 26 “ See the privilege in Latin in: Adam Tytus Działyński (ed.), Zbior praw litewskich od roku 1389 do roku 1529.Tudzież rozprawy sejmowe o tychże prawach od roku 1544 do roku 1563 (Poznań, 1841), pp. 1–2.

176 Artūras Vasiliauskas

from their rulers.27 This trend, set by the 1387 privilege, was continued by a series of legal acts issued by other rulers during the whole fifteenth century. The Krėva union and the adoption of Christianity made the GDL the integral part of Latin Europe and made the Teutonic order’s ideological claim for conquest untenable while Jogaila as the king was now at the disposal of new material and intellectual resources to entrench his supremacy in the GDL. Although the top-down “modernization” of the state has been initiated by replicating European institutions it does not mean that, as was mentioned above, the aristocracy was oppressed or completely subjected to Grand Duke’s will, rather their interaction was based on mutual dependancies and commitments as was well shown by many researchers.28 The personal union of two countries was not fully implemented during the political lifetime of Vytautas and his immediate successors, not least because of the unsolvable issue of monarch’s residence in the GDL after Jogaila became the king. Although he still belonged to the type of the “itinerant kings”, due to the vast territories and underdeveloped travel infrastructure he was rarely visiting Lithuania, and most probably his wife Jadwyga has never been to Lithuania. The Lithuanian aristocracy was simply not accustomed to such “relationship over distance” and expected a monarch to reside in the country, to have “their master in their own land”.29 Therefore, Jogaila had to delegate his power in the GDL to his representative and in the beginning he relied on his brother Skirgaila. Later Jogaila had to enter into power sharing deals with his cousin Vytautas, who by means of skillful diplomacy, political intrigue and most importantly, his ability to attract the Lithuanian aristocracy to his cause, had managed to build his case for claim to rule the GDL. The support of high aristocratic houses, combined with political consistency, had finally helped Vytautas to become the Grand Duke in 1401, although Jogaila has always remained his overlord and supreme nominal power in the GDL. In the Lithuanian historical tradition and popular memory Vytautas has always been figuring as GDL’s greatest ruler who only because of evil scheming of Polish grandees and accidental death was precluded to crown himself a King of Lithuania while Jogaila has been seen as a traitor who exchanged the sovereignity of the country for a lucrative marriage deal. It has been mentioned already that the Grand Duke Vytautas introduced the institution of permanent councillors. In general Vytautas has started the sweeping institutionalization of the state by creating the system of office holding designed to overcome the shortcomings of governing based on personal connections.

27 “ Actum Principum, Regis Poloniae atque Supremi Ducis Lithuaniae Vladislai Jogaila et Magni Ducis Lithuaniae Alexandri Vytautas”, pp. 37–42, see also “Actum Nobilium Magni Ducatus Lithuaniae”, pp. 29–31 in Jūratė Kiaupienė and Lidia Korczak (eds.), 1413 m. Horodlės aktai (Dokumentai ir tyrinėjimai). Akty Horodelskie z 1413 roku (Dokumenty i studia) (Vilnius/Kraków, 2013). 28 See for instance chapter ‘People of Power – office holders in service of monarchy’ in Lidia Korczak, Monarcha i poddani. System władzy w Wielkim Księstwie Litewskim w okresie wczesnojagiellońskim (Cracow, 2008) pp. 103–123 or the chapter ‘the high aristocracy and the power of Grand Duke’ in Rimvydas Petrauskas, Lietuvos diduomenė . . .  pp. 167–195. 29 Artūras Dubonis, Darius Baronas, Rimvydas Petrauskas, Lietuvos istorija . . . , p. 545.

Ruling by law and by consent  177

On the one hand, sufficient evidence exists to confirm that the monarch’s court officialdom has begun to develop gradually out of ducal military force in the fourtheenth century, however it was was Vytautas who, by replicating to the large degree the structure of the Teutonic order, imbued a monarch’s court with European character. The claim that the grand dukes created the new group of office-holding nobility to undermine the strong position of the established aristocratic houses is too simplistic. At the end of the fifteenth century at the top of the power elite one finds the grandchildren and grand grand children of the grandees who lived in the second half of the fourteenth century.30 Although the monarchs were employing the appointents to offices as one of the levers of their power, it could be entrenched in particular provinces only by support of local elites. The developing system of office holding was rather supplementing and strenghtening than challenging the already existing ties of political and economic dependence. After Jogaila, in line with his Krėva pledge, had baptised the pagan ethnic Lithuanian population of the Grand Duchy in Catholic rite, the issue of another religious division has come to the fore. Although in Europe the GDL was universally perceived as a heathen country ruled by the pagan dukes, the bulk of its inhabitants, including the numerous nobility, were the Ruthenians – the Slavonic people of the GDL – who had adopted the Eastern Orthodox Christianity well before becoming subjects of the Lithuanian grand dukes and who have been peacefully co-habiting with the pagan Lithuanians in the hugely expanded state for over a century. The aforementioned 1387 Jogaila’s privilege did not cover the Orthodox nobility and laid foundations for the long standing friction between it and the priviledged Catholic nobility. This was at least in part rectified by Grand Duke Sigismund’s privilege confirmed on May 6 in 1434. Ironically, Sigismund, who was the only Lithuanian ruler to gain posthumously the reputation of the tyrant oppressing the nobility in the historical tradition seeking to justify his murderers, made the Orthodox Ruthenian nobility, that then constituted the majority of the noble estate in the GDL, equal in rights with the Catholic Lithuanian nobility. The privilege was a result of the internal struggle for power after the death of Grand Duke Vytautas, who left no male heir. Sigismund, the brother of Vytautas, was competing with Švitrigaila, Jogaila’s brother, and was seeking to ensure the support of the Orhodox nobility. Apart from confirming the privileges of earlier rulers Sigismund pledged not to punish dukes and nobles without the due process of law proving their guilt and exempted their peasants from giving harvest tribute (dziakla) to the Grand Duke.31 The Lithuanian nobility did not hesitate to use its consent to the adoption of the Polish Crown by the Grand Duke Kazimierz Jagiellończyk as the bargaining tool that enabled further expansion of its rights in the privilege of May 5 of 1447.

30  Rimvydas Petrauskas, Lietuvos diduomenė p. 213. 31 See the privilege in its original Latin language in Anatolii Lewicki (ed.), Codex epistolaris saeculi decimi quinti (Kraków, 1894) vol. 3 in Monumenta Medii Aevi Historica Res Gestas Poloniae Illustrantia. Tomus XIV, pp. 529–531.

178 Artūras Vasiliauskas

From now on the monarch had to appoint to the GDL offices only the inhabitants of the Grand Duchy as well as give them a priority in appointing to ecclesiastical offices. Nobility was allowed the right of unrestricted travel abroad and was granted the full judiciary authority over their peasants.32 The trend of granting rights to the nobility which by default restrained the monarch’s arbitrary power over them was accompanied by the equally growing trend of consultative politics when the monarch was seeking support for his policies by deliberating them with the members of highest aristocracy or by the summoning of broader assemblies that can be regarded as the precursors of the GDL Parliament – Sejm which fully developed into more or less regularly called gathering of the Lithuanian nobility in the first half of the sixteenth century. The Lithuanian high aristocracy, although present and influential already in the fourteenth century and during the rule of Grand Duke Vytautas has fully risen to prominence only after his death. It played an important role in the political struggles for the Grand Ducal seat in 1430s and unilaterally declared Kazimierz Jagiellończyk, who was sent to the GDL by his brother King of Poland Władysław III as his proxy, the Grand Duke of Lithuania, thus de facto disrupting the Union between Poland and GDL until 1447 when Kazimierz was elected the King of Poland. More importantly, the rise of the aristocracy that by the end of the fifteenth century had evolved into a fully fledged oligarchy and that institutionalized its dominance in the shape of the Council of Lords, is largely accounted for by the long term absences of monarchs who, after the accession of Kazimierz Jagiellończyk to the Poland Crown, over 100 years preferred to reside in Poland. Monarchical power in the GDL in that period can in no way be seen as weak in terms of its prerogatives,33 which included the right to distribute offices and royal estates as well as the supreme judiciary authority. However, the Council of Lords, and, especially, Privy Council, consisting of the top office – holders of the country that was convening on a regular basis and ran the country as the executive arm of the Grand Duke gradually transformed itself into the ruler’s decision making partner. Already in the first code of penal laws of the Grand Duchy of 1468 Kazimierz Jagiellończyk stresses that he passed it after “consultation with dukes and our Council of Lords of the Grand Duchy of Lithuania and all people”.34 However, it is Aleksander’s Jagiellończyk’s 1492 privilege issued upon his accession to his Grand ducal throne that marks the fundamental shift from the principle of consultation, when the monarch seeks advice and support for his policies to the principle of consent when he obliges himself to seek agreement for his decisions. From now on the ruler expressly commits himself to comply with all decisions he made in

32  See the privilege in Old Ruthenian and Latin languages in Zbior praw . . . , p. 28–35. 33 For the latest review of monarchical prerogatives in the GDL see section on Grand Ducal power in Andrzej B. Zakrzewski, Wielkie Księstwo Litewskie (XVI – XVIII w.). Prawo – ustrój – społeczeństwo (Warszawa, 2013), p. 118–130. 34 “с князьми и с паны радою нашею великого князьства Литовьскаго и с всим поспольством согадавши” J. Jurginis and A.Tyla (eds.), Kazimiero teisynas (Vilnius, 1967) Acta Historica Lituanica I, p. 26.

Ruling by law and by consent  179

consultation with the lords councillors in foreign policy and internal affairs and to back down from his plans if they disagree without becoming angry with them (“pro isto super eos commoveri non debemus” article 15). The Council has also received the right of co-decision in appointing and removing officials as well as in managing the treasury.35 The next monarch, Sigismund I the Old, reaffirmed the prerogatives of the Council of Lords and the principle that nothing old can be changed and nothing new can be decided without the lords councillors by article 7 of his privilege confirmed in 1506.36 The principle of consent to royal decisions as well as personal liberties of the noble estate were further entrenched in the first Lithuanian statute, that was drafted in the GDL Chancery, debated and approved in the Lithuanian sejm in 1522 and, after a lengthy process of amendments and improvements, confirmed by Sigismundus the Old on September 29 of 1529. The Statute was a product of immense law-making creativity in the GDL that merged and summarized into the comprehensive legal code the different strands of customary law, Ruthenian legal tradition and the aforementioned privileges of the Grand Dukes as well as the elements of Roman law together with the precedents of contemporary local judiciary practice.37 Its adoption meant that the GDL not only caught up with Poland in codifying law, but also went ahead of its Union partner and in terms of law making achievement became equal to other countries in Central Europe.38 The entire section three of the statute was devoted to the liberties of the noble estate and the obligation of the ruler to maintain and expand the state: “De manu tenendo corpore Magni Ducatus et de libertatibus nobilitatis”. The article 6 of that section provides that Also everything concerning the preservation of land privileges and customs which are described in those privileges is confirmed and established, and we [that is, the monarch- A.V.] shall make and implement new decisions and increases in their number which would assist our and state’s benefit only in the spirit of the old time, and also with the knowledge, counsel and consent of our councils of the Grand Duchy of Lithuania.39

35 See the publication of the privilege confirmed on August 6 in Матвей К. Любавский, Очеркъ Истории Литовско-Русскаго Госудаpства до Люблинской унии включительно (Москва, 1915), pp. 328–334. 36  Ibidem, pp. 334–336. 37 The multiplicity of legal sources and their creative codification in the 1529 statute was stressed by one of the most distinguished Polish historians of medieval and early modern law, who also noted that the efforts to codify the GDL laws were strongly stimulated by the aspiration of its creators to defend the independence of the GDL against the centripetal trends unleashed by the personal union with Poland, see: Juliusz Bardach, Statuty Litewskie a prawo rzymskie (Warszawa, 1999) pp. 22–25. 38 Edvardas Gudavičius and Irena Valikonytė, ‘The Place of the First Statute of Lithuania in the History of the State and the Law’ in Edvardas Gudavičius and Irena Valikonytė (eds.), Pirmasis Lietuvos statutas. The First Statute of Lithuania (Vilnius, 2014) p. 29. 39 Ibidem, Section 3 Article 6, p. 79. This latest edition contains the version of the first Lithuanian Statute in Latin as well as translations to Lithuanian and English. For old Ruthenian, Polish and Latin versions of the statute in parallel see: Stanislovas Lazutka, Irena Valikonytė and Edvardas Gudavičius, Pirmasis Lietuvos statutas (Vilnius, 1991),Vol. II part 1. See article 6 of section 3, pp. 110–111.

180 Artūras Vasiliauskas

The GDL Sejm mentioned in the first statute, to which the broader nobility was invited to take part from 1492 when it elected the new Grand Duke Aleksander was not yet accorded the power of legislation – the defining feature of the parliament and remained in effect the consultative body while the consent was preserved as the sole prerogative of the highest aristocracy and top office holders comprising the membership of the Council of Lords. In fact the statute mentions Sejm only once in passing, again in the context of monarch’s pledge not to act without the consent of the Council of Lords: “And we may not grant privilеges in perpetuity to anyone, anywhere but in conference with our lords of the council at the general diet (in Latin: in conuencione generali, in Old Ruthenian: на вальном сойме) (article 25, section 1 p 61).40 Although the broader nobility was invited to participate in Sejms, they often were not much more than the extended sessions of the Council of Lords. In 1536 Albertas Goštautas, the GDL chancellor, the palatine of Vilnius and the most powerful aristocrat in the country, explained in often quoted and very blunt clarification that: in our state Sejms proceed in a completely different manner [from Poland – A.V.]. Decisions made by his Royal Majesty and the lords shall be necessarily implemented by our nobles. We invite nobles to our Sejms in part out of respect, an on the other side, in order them to know what we have decided.41 The public acts of allegiance to the rights and liberties performed by the monarch reassured the noble estate of their irrevocability. Sigismundus Augustus, who was elected separately the Grand Duke of Lithuania and the King of Poland in 1529 vivente rege – that is, when his father and the reigning king Sigismundus the Old was alive, was the first monarch known to have given a public oath “to uphold, keep and protect all rights, liberties, privileges, charters, concessions of my Grand Duchy of Lithuania” granted by his predecessors. The oath followed closely the wording of the First Lithuanian Statute and was solemnly given to the Lithuanian nobility gathered in Sejm in 1536, when he achieved adulthood.42 In 1547 during the first GDL Sejm after Sigismund Augustus assumed the full duties of the king and the grand duke following the death of his father, the noble representatives asked him to show them the charters of their rights and liberties, which were granted to their ancestors “for their loyal service and frequent blood shedding [ . . . ] so that by listening to that and seeing what our ancestors have earned we would rejoice and would serve his Royal Majesty our master and the country even more eagerly without sparing our lives, properties and estates in the services for your Majesty”.

40  Ibidem, p. 61 and pp. 86–87. 41 “Alberto Goštauto argumentai, kodėl teisėjai Lietuvoje neturi būti skiriami taip kaip Lenkijoje” in Šešioliktojo amžiaus raštija (Vilnius, 2000), p. 56. 42 The oath quoted from Darius Antanavičius (ed.) and Sigitas Narbutas (translator), Lietuvos didžiojo kunigaikščio Žygimanto Augusto dvaro sąskaitos (1543–1548). 1 Knyga (Vilnius, 2009), p. XI.

Ruling by law and by consent  181

The new monarch duly ordered “to display and read in front of” the nobility privileges and charters of liberties during some sort of public session that most probably amounted to a very solemn ceremony and granted the request to confirm all of them by his own privilege. The king also agreed to make those privileges and charters more accessible to everyone by transferring them from his treasury to another secure storage place that he pledged to choose with the lords councillors.43

The union of Lublin and the noble democracy The mid-sixteenth century was a period of sweeping changes and reforms that brought in many economic, constitutional and legal, as well as intellectual, novelties. The agrarian reform aimed at increasing the productivity of royal landed estates initiated in the GDL by the Queen of Poland Bona Sforza and implemented by her son Sigismund August had consolidated the serfdom, introduced the three field system of crop rotation that significantly increased the grain exporting capacity to Europe and agricultural revenues. The intellectual and artistic life, book printing was starting to flourish under the impact of European Renaissance and was fuelled by cultural competition between the Reformation and the Catholic reform. In 1579 the Jesuits have founded the University in Vilnius and the GDL capital city also became a major cultural centre. Also, the long advance towards the fully fledged noble parliamentarism has been taking key steps: the second statute (1566) granted all members of the noble estate the right to deliberate on the matters of state as well as “needs and issues of their districts and palatinates”, and, more importantly, to elect their envoys to the Sejm in the provincial assemblies of nobility – district dietines (sejmiks). The administrational, parliamentary and judiciary reform of 1564–1566 when the elected district land courts and the dietines were introduced, implemented before the Union of Lublin in 1569, that followed the Polish model did not immediately result in vibrant noble democracy. At least for a few first decades after their introduction the new institutions largely served the oligarchy of the most powerful aristocratic families who amassed huge landed estates and controlled highest offices in the country. This was blatantly visible already during the 1569 Lublin Sejm summoned to negotiate the closer union between the Polish Crown and the GDL in which the only negotiating voice of the Lithuanian delegation were the lords councillors, while the representatives of broader nobility were silent. The only illuminating exception occurred, when on April 5 Jan Chodkiewicz the starosta of Samogitia tried to delay the conclusion of union by insisting that its project drafted by the Council of Lords should be first approved by the nobility in the GDL dietines. Then the representative of Podlasze addressing the Polish side broke the silence by most probably somewhat too dramatic account of how dietines were operating in Lithuania:

43  Zbior praw litewskich  . . . , pp. 418–421.

182 Artūras Vasiliauskas

Your Worships, they are not working as they do here in your way, because only a sir palatine and a court starosta and an ensign come to the dietine there, and they write whatever they want and send it to the noble’s house for him to sign. And if he does not sign it they give him a punishment of beating with sticks.44 However, the established view that the broader Lithuanian nobility was never able to develop the political culture comparable to Poland can be challenged. The research shows that at least from the end of the sixteenth century the broader nobility sought to underpin the legitimacy of dietines with genuine debate and inclusive participation and the wider political class for whom active citizenship mattered was emerging.45 Thus, as in the Polish Crown a monarch was no longer sharing power only with magnates, who undoubtedly remained a very influential group, but also with the rest of the noble estate, which, although entangled into complex webs of mutual economic and political dependencies with the great houses, also shaped the politics in the GDL and the Commonwealth. The system of electoral monarchy that the Polish-Lithuanian Commonwealth of Two Nations entered after the death of Sisgismundus Agustus, the last Jagiellonian King, has provided nobilities of the two nations with new opportunities of negotiating favourable constitutional arrangements and further guarantees of their rights and liberties from the candidates. During the first three interregna the fundamental constitutional arrangements were refined setting the way in which the state ought to operate after the extinction of the ruling dynasty. The Sejm of the Commonwealth46 has become an institution, that not only represented the will of the noble estate, but also has played a key role in managing the crises of the first interregna. In the system of electoral monarchy the king enjoyed power “by the Grace of God, but also by the will of the nation” and the true sovereign was the noble estate as a whole. Before coronation every elected monarch had to acceed to the demands of the nobility and ensure its rights and liberties by solemnly swearing to uphold Pacta Conventa or his written pledges agreed with the nobility. The first Pacta Conventa, the so called Henrician Articles agreed by Henri Valois with the noble estate after his election in 1573 became the permanent core of all later Pacta Conventa. The most important permanent pledges included the guarantee of

44  Дневник Люблинского сейма 1569 года : Соединение Великого княжества Литовского с Королевством Польским (Санкт Петербург, 1869), p. 290. 45 For new findings on the emergence of broader noble political class in the GDL see: Artūras Vasiliauskas, “The Practice of Citizenship among the Lithuanian Nobility, ca. 1580–1630 in Karin Friedrich and Barbara M. Pendzich, Citizenship and Identity in a Multinational Commonwealth. Poland – Lithuania in Context, 1550–1772 (Leiden and Boston, 2009), pp. 71–102. 46 The Sejm of the Commonwealth was comprised of three ‘estates’: the King, the Senate and the Chamber of Envoys.The senators were the holders of highest central and provincial (palatines and castellans) offices in Poland and the GDL and the top hierarchs of the Catholic Church. The district nobilities elected their representatives to the Chamber of Envoys in their local dietines (sejmiks). In the GDL nobility was electing representatives in over twenty districts and each district was entitled to send two envoys to the Chamber. For a more extensive description of the political system of the Commonwealth see Juliusz Bardach, Bogusław Leśnodorski, Michał Pietrzak, Historia ustroju i prawa polskiego (Warszawa, 2001).

Ruling by law and by consent  183

the free election of kings and the ban on using the title of hereditary monarch, the duty of a king to conduct diplomacy and all internal affairs in consultation with the senators who were to rotate as permanent residents at the royal court, to summon Sejms every two years, to declare war and recruit armies only with an approval of the Sejm and so on. The separate article “De non praestanda oboedientia” (on the unguaranteed obedience) enshrined the right of the nobility to rebel in arms against the king who broke his Pacta Conventa and rather soon it ceased to be the dead letter of law when the significant part of the politicaly active nobility challenged Sigismund Vasa on its basis during the rokosz of Zebrzydowski, the civil war between regalists and republicans in 1606–1607.47 In addition to these fundamental pledges each new monarch had to make his own personal promises sometimes rather unrealistic and related to defence funding, recovery of lost territories, distribution of offices, curtailing the influence of foreigners in the Royal Court and so on. In effect Henrician Articles was a sort of constitution, that not only limited the monarch’s power, but also clearly defined and regulated the governance of the Commonwealth until the reforms in the concluding decades of the eighteenth century and the 1791 May 3 constitution. The earlier historical writing both in Poland and Lithuania was very critical of the system of noble democracy, stressing that the weak monarch, self-centred nobility and the rise of the absolutist neigbours – Prussia, Austria and Russia – had made the partitions of the Commonwealth inevitable at the end of the eighteenth century. The right of liberum veto was particularly condemned as the main cause of the disruption of Sejms leading to the political anarchy.48 Its essence was the unanimous passing of all decisions in the Sejm. Any noble envoy to the Sejm could veto the draft law by his single vote, thus triggering the dissolution of the whole Sejm session and making all other passed laws invalid. The contemporary historical writing stresses that an operation of noble parliamentarism was more complex.49 Firstly, each envoy to the Sejm was not representing himself, but his own district or palatinate which he was elected to represent in local dietine (sejmik). He was bound or at least expected to be bound by written instructions issued to him by the dietine as to

47 True, despite the fact that one of the rebels’ leaders was a Calvinist grandee from the GDL Janusz Radziwiłł and the regalist military commander who crushed the rebels in the decisive battle of Guzow on July 5, 1607 was Jan Karol Chodkiewicz, the Lithuanian Grand Hetman, the opposing sides in the GDL, in contrast to Poland, have managed to avert the violent confrontation and the whole conflict was played out in the opposing assemblies of nobility that asserted their right to speak on behalf of the noble estate and questioned each other’s legitimacy. For more on rokosz in Lithuania see: Henryk Wisner, ‘Litwa wobec rokoszu (1606–1607)’ Kwartalnik Historyczny 79 (1972) pp. 278–299. 48 See the fundamental study of liberum veto first published in 1918 by Władysław Konopczyński, Liberum Veto: studium porównawczo-historyczne (Cracow, 2002), and the latest extensive account of attempts to abolish it: Jerzy Lukowski, “ ‘Machines of Government’: Replacing the Liberum Veto in the Eighteenth Century Polish-Lithuanian Commonwealth” // The Slavonic and East European Review, vol. 90 No. 1 (January 2012), pp. 65–97. 49 See for instance: Wojciech Kriegseisen, Sejm Rzeczypospolitej szlacheckiej (do 1763). Geneza i kryzys władzy ustawodawczej (Warszawa, 1995).

184 Artūras Vasiliauskas

how to vote in certain matters50 and he was obliged to give an account of his work in the Sejm in relational dietine (sejmik relacyjny) summoned after the conclusion of Sejm to debate and approve its decisions. Secondly, although the principle of unanimous approval have been practiced for a long time the liberum veto right was not applied before 1652 when on March 9 it was actually the Lithuanian enoy from Upytė district Władysław Wiktoryn Siciński who disagreed with a motion to prolong the Sejm session and left it.51 This date is traditionally held to be the symbolic start of the liberum veto epoch. Although disruption of Sejms had been occuring before, prior to 1652 the principle of unanimity was treated flexibly and before 1661 it was seen as absolutely necessary only when the approval of the prolongation of Sejm session was needed52 Only from the seventies of the seventeenth century the influence and authority of the Sejm began to decline considerably, while its biggest decay falls within the first half of the eighteenth century when between 1718 and 1763 out of twenty-seven sessions of the Sejm only seven were completed without being broken up.53 However, following the restrictions imposed on liberum veto by the Convocational Sejm of 1764 during the last interregnum not a single Sejm was disrupted. Thirdly, a monarch himself was readily using the liberum veto to obstruct the plans of political factions opposing him and was far from interested in abolishing it, because surrendering it would deprive the monarchy of an important weapon which enabled it to block further restrictions on its power, without any guarantee that the effective reform would follow.54 Furthermore, the noble citizens did not think that their monarch was weak: the repetition of certain measures by successive diets and the attempts to strengthen sanctions against the king suggest that he was frequently able to circumvent or ignore laws supposed to limit his freedom of action. The consequent breakdown in the relationship between the monarchy and the political nation lay at the heart of the crisis of government in the Commonwealth55 in the seventeenth century. His sole prerogative of appointing to state offices and distributing royal estates for lifelong holding made him powerful enough to build political support base

50 See for instance, the detailed analysis of how written instructions were drafted and employed to define and limit envoys’ mandate in the Sejm over two centuries in the dietine of Trakai: Andrzej B. Zakrzewski, Sejmiki Wielkiego Księstwa Litewskiego XVI–XVIII w. Ustrój i funkcjonowanie: sejmik Trocki (Warszawa, 2000) pp. 116–127. 51 Historians disagree about his personal motives, some claim that Siciński did not act on his own, but rather was used as an instrument by the powerful magnate Janusz Radziwiłł, the GDL grand hetman, who allegedly had a factional interest to disrupt the Sejm. However, Radziwiłł’s biographer suggests that this cannot be confirmed due to the lack of conclusive evidence. See: Henryk Wisner, Janusz Radziwiłł 1612–1655 (Warszawa, 2000) p. 153. 52 Jolanta Choińska-Mika, Między społeczeństwem szlacheckim a władzą. Problemy komunikacji społeczności lokalne – władza w epoce Jana Kazimierza (Warszawa, 2002) p. 158. 53 Józef Andrzej Gierowski, The Polish-Lithuanian Commonwealth in the XVIIIth Century. From Anarchy to Well – Organized State (Kraków, 1996) p. 125. 54 This was well shown by Robert Frost, After the Deluge: Poland-Lithuania and the Second Northern War 1655–1660 (Cambridge, 2003), p. 136, 150 and 151. 55  Ibidem, p. 14.

Ruling by law and by consent  185

for his policies. However deficient the political system of the Polish-Lithuanian Commonwealth proved to become in the end, it was a prominent and territorialy huge early modern parliamentary democracy that stood out together with its other few analogues in Western Europe such England and the Neverthlands. During the first three interregna after the extinction of the Jagiellonian dynasty the Lithuanian elite robustly pursued its own political agenda separate and sometimes conflicting with the aspirations of the Polish szlachta.56 During the first interregnum the Lithuanians switched their support from archduke Ernest II to Henry Valois after they separately negotiated generous promises from his envoys, that included the pledge to appoint to the GDL offices only the GDL citizens, to rotate the summoning of the Commonwealth’s Sejms between Poland and the GDL, to put back Livonia under the exclusive jurisdiction of GDL, not to extend to the GDL the executio iurium implemented in Poland, to recover lands lost to Muscovy and, rather unrealistically, to return the GDL territories incorporated by Sigismundus Augustus to Poland in 1569, that the GDL lost due to the resistance of the Lithuanian delegation to the union.57 During the long second interregnum the Lithuanian nobility, that was almost entirely absent (except for a few senators and a handful of noble electors) from the violently contested election between the supporters of Maximillian II and Stefan Batory, has recognized the latter well after he swore Pacta Conventa on February 16 in Wavel in 1576. In the separate gathering in Mścibohow at the beginning of June the Lithuanian political elite has condemned the fact that the right to elect the new king was not properly ensured for the “Natio Lituanica” and therefore the great damage was done to its laws, liberties, privileges and put together a series of conditions to Stefan Batory expressing exclusively the GDL interests.58 On June 29 the new monarch agreed to many of these conditions, by issuing three privileges. Most importantly, Batory in effect acknowledged that the participation and the right of the Lithuanian nobility to elect the king was not properly ensured in the last election by stressing that, in line with the Union of Lublin, the joint monarch must be elected by both nations jointly in a simultaneous act. Some historians think that this was the re-interpretation of the Union of Lublin tilting the balance from the unitary state towards the Commonwealth as the federation of its two equal parts.59 Also, among other things the new King promised to secure by his appointments the permanent presence of senators – residents from the GDL in his court and banned the dispatch of any official correspondence from the chanceries of the Polish Crown to the Lithuanian palatinates as well as the

56  For the detailed account of political developments in the GDL during period covering first three interregna in the Commonwealth and the “decisional emancipation of the Lithuanian elite” see: Henryk Lulewicz, Gniewów o unię ciąg dalszy. Stosunki Polsko – Litewskie w latach 1569–1588 (Warszawa, 2002). 57  Ibidem, p. 139. 58 See the resolution of the Mścibohow gathering on the conditions of Lithuanian estates to Stefan Batory and the Resolution on the conditions of the Lithuanian Estates to the Estates of Polish Crown in Henryk Lulewicz (ed.), Akta Zjazdów Wielkiego Księstwa Litewskiego. Tom I: Okresy Bezkrólewi (Warszawa, 2006), p. 185–191. 59  Henryk Lulewicz, Gniewów o unię . . . , pp. 280–281.

186 Artūras Vasiliauskas

infringements or questioning of prerogatives of the Lithuanian officials by their Polish counterparts. By yet another milestone decision Batory approved in 1581 the establishment of the Supreme Tribunal (following the same Tribunal established in Poland in 1578), that replaced the monarch as the court of the last appeal to which judges were elected annually by district nobilities in specially convened dietines. During the reign of Stefan Batory the new form of separate parliamentary gathering in the GDL had come to being when the king summoned the Lithuanian nobility in 1577 to Valkavyskas (Wołkowysk) to approve taxes required to organize the defense of the country. These GDL parliamentary gatherings to which envoys were elected in dietines as to the Sejm and also attended by senators, which later acquired the name of Convocations and were summoned to Vilnius, were not provided by the Union of Lublin and the Lithuanian nobility often contradicted to them as a dubious way to extract the approval for new taxes. In total, before the end of the seventeenth century when this form parliamentary gathering disappeared twenty-four such Convocations were summoned, but only fourteen actually gathered and passed decisions.60 Also, starting from the reign of Stefan Batory the Lithuanian envoys elected to the Commonwealth Sejms and the senators heading to it were gathering to the general dietine preceding the Sejm sessions, thus replicating the Polish tradition of such larger regional gatherings intended to reconcile the positions of particular dietines established earlier. However the attendance of the GDL general dietines was often unsatisfactory despite the urges of the district dietines put to their envoys and, therefore, they never became an effective forum to achieve consensus on the scale of the whole GDL61. During the next interregnum, the confirmation of the third Lithuanian statute, that took twenty years to draft by the specially appointed commission and the GDL chancery with an active participation of the nobility that was submitting amendments in dietines and conventions, was of one of the key demands of the Lithuanian nobility. The King-Elect Sigismund Vasa who also had to seek a separate recognition from the Lithuanian nobility has confirmed it on January 28 during the Coronation Sejm. The third Lithuanian statute, together with the Supreme Tribunal, crowned the long process of establishing and defining the personal freedoms and political privileges of the Lithuanian nobility, that after the Union of Lublin continued to perceive itself as a distinct community of citizens. Lew Sapieha, then the vice – chancellor of GDL and one of the leading figures in drafting the statute, in his address to the GDL estates prefacing its first printed edition compellingly stressed that a monarch, like everyone else, was subjected to the rule of law. And we boast of this liberty among other Christian nations, that we do not have above us a master who would rule us by his will but not according to our rights and we freely enjoy our honourable glory as well as lives and estates, because if

60 For the extensive analysis of the Convocation see: Andrzej Rachuba, Wielkie Księstwo Litewskie w systemie parlamentarnym rzeczypospolitej w latach 1569–1763 (Warszawa, 2002), pp. 243–287 ir 61 The general dietines of the GDL were held first in Valkavyskas (Wołkowysk) and then in Słonim. Ibidem pp. 152–166.

Ruling by law and by consent  187

anybody harmed us in one of these three things, and tormented us according to his liking and against our laws, he would already cease to be our master, but would become abuser of our rights and liberties and we would have to be his slaves. And indeed it rightfully becomes us to thank our Lord God, that under the reign of our masters – Their Majesties Kings and Grand Dukes, we have that power and freedom in our hands and by creating laws ourselves we guard our freedom in everything as much as we can, since not only a neighbour and our fellow citizen in our fatherland but also a ruler, our master himself, can not enjoy any more dominance over us, only as much as the law allows him.62 The monarch’s, whose “power is so restrained with bonds and reigns (vinculis et frenis potestas Regum coercita est) that he can neither make laws without the consent of the whole nation, nor challenge the passed laws” subjection to the rule of law was extolled as a distinctive feature of the Commonwealth already in 1572 by Andrzej Wolan in his most significant treaty “About the Political or Civic Liberty” dedicated to his patron and most powerful magnate in GDL Mikołaj Radziwiłł Rudy, the palatine of Vilnius and the chancellor of the GDL.63 Interestingly, while almost at the same time one calvinist – Wolan in his treatise was openly celebrating the advantages of electoral monarchy limited by law in his country, another calvinist from France – Theodor Bezá anonymously expounded his theory of a legitimate people’s resistance to the oppressive regime and their right to overthrow it in his much more famous treatise “De jure magistratuum”, published in 1574. It was also the year when the first elected king, Henry Valois, escaped from the Commonwealth to his native France to claim the Crown. As to Sapieha’s words very soon they and the Lithuanian nobility’s resolve to protect the rule of law against the actions of the monarch were put to the test. In 1597 Sigismund Vasa, in defiance of the strong and repeated protests to his intentions, nominated Bernard Maciejowski, the Bishop of Łuck to the Bishopric of Vilnius, vacant from 1591. As the nobility participating in dietines and envoys to GDL conventions and the Commonwealth’s Sejms pointed out on multiple occasions this violated the statute’s clause permitting the distribution of offices and royal estates in GDL only to its citizens. Lew Sapieha, by virtue of being a chancellor, a close collaborator of the king, still refused to validate his nomination charter with the GDL seal and the Lithuanian nobility continued to resist King’s wish until he backed down after a few years. The constitutional and legal order established by the Union of Lublin and the Third Lithuanian statute lasted, with minor modifications, until the great reforms of the Commonwealth in the age of Enlightenment. There were some procedural differences between the operation of Lithuanian and Polish dietines, but the GDL did not develop essentially different solutions and practices within the general framework of

62  Ivanas Lappo, 1588 metų Lietuvos statutas II tomas.Tekstas (Kaunas, 1938), p. 16. 63  Andreas Volanus, “De Libertate Politica sive Civili” in Andrius Volanas, Rinktiniai raštai (Vilnius, 1996), p. 62.

188 Artūras Vasiliauskas

the Commonwealth’s parliamentarism.64 The Lithuanian nobility, although maintaining an identity of an autonomous community of citizens, have increasingly operated as an integral part of the political system of noble democracy and shared with the Polish nobility the common concerns of maintaining their rights and liberties.

The end of the Commonwealth and its legacy From 1764, when the last king of the Commonwealth Stanisław Poniatowski was elected, the large process of fundamental constitutional and governance reforms had been started to be aimed at modernizing the state and society. Reforms faced the conservative opposition among the nobility, however their implementation was much more strongly impeded by Prussia, Austria and Russia, the neighouring powers who were increasingly seeing the Poland-Lithuania as their prey for division and therefore took all measures to prevent them, so that the “golden freedoms” would maintain it in a state of permanent inability or weakness. By supporting the internal opposition and the general turmoil these powers managed to squash the first wave of reforms and in 1772 implemented the first partition of the Commonwealth as a result of which it lost 210,000 square kilometres of its territory.65 The threat of a new partition mobilized the society for more vigorous pursuit of reform and led to the extraordinary culmination of the reformist movement in the so called for years Sejm (1788–1792) that consistenly worked on the whole series of important changes and crowned its achievements in 1791 with the Constitution of May 3. The Constitution implemented the Charles-Louis Montesquieu principle of the separation of powers. From now on the executive power was to be implemented not by the electoral, but the hereditary monarch together with the head of the Catholic chuch in the Commonwealth and five ministers, the legislative power was delegated to the Sejm whose elected noble envoys no longer represented their particular districts, but the whole nation while the judiciary branch was reformed but still kept the separate systems of noble and the burgher estate courts. Although the Constitution stressed the dominant position of the nobility in society it did not receive any additional and special rights and privileges while it stripped the petty and landless nobles, who became the instrument of political abuse and manipulations by the magnates, of their electoral rights. The burgher estate was given a right to delegate twenty-four of their representatives to the Sejm, burghers were guaranteed personal immunity and the self-government of the towns was unified by abolishing the patchwork of ecclesiastical and magnate jurisdictions fragmenting the towns. Initially the Constitution provided the unification of the Commonwealth and the abolition of its federal arrangement by relegating the GDL to the status of

64  Andrzej Rachuba, Wielkie Księstwo Litewskie w systemie parlamentarnym rzeczypospolitej w latach 1569–1763 (Warszawa, 2002), p. 347. 65 For an extensive and critical account of the international circumstances and the maladies of internal politics in the Commonwealth that led to its demise see: Jerzy Lukowski, The Partitions of Poland 1772, 1793, 1795 (London and New York, 1999).

Ruling by law and by consent  189

a province alongside the provinces of Lesser Poland and Greater Poland, undistinguished by any sort of more discernable autonomy. However, the Lithuanian reformist nobility had negotiated The Law of “The Mutual Assurance of the Two Nations” that was passed unanimously by the Sejm on October 20, 1791. It was an important amendment to the Constitution reaffirming the GDL as an equal partner in the Union and definitely appeasing the Lithuanian political class eager preserve its autonomous identity. It provided eaqual representation of the GDL in the central authorities and its preamble stressed the dual character of state and reinstated the federalist arrangement of the Commonwealth to the full extent.66 It is still hard to say to what extent the last great monument for soon to be lost freedoms – Constitution of May 3 of 1791 – was the product of Enlightenment ideas or was made possible by a very long, sometimes utterly dysfunctional tradition of consensual politics. The reforms were genuinely debated and supported by the Lithuanian nobility that also produced prominent reformers.67 Although the reforms were soon crushed by the foreign powers that in 1795 have finally partitioned the Commowealth which vanished from the political map of Europe, they have demonstrated that its political system had a potential to combine noble liberties with the institutions of more effective government. The modern Lithuanian nation that began to emerge from the second half of the nineteenth century and created an independent state in 1918 was not entirely sure whether it should claim this huge legacy of freedom, since its relationship to the history of GDL, after the rule of Grand Duke Vytautas, who was glorified as the last true defender of Lithuanian interests, was ranging from ambiguous to hostile, especially towards the Commonwealth. The nobility was blamed for the decline of the Lithuanian statehood through ever closer Union with Poland, for inability to resist the cultural polonization and the loss of ethnic identity and language as well as for co-creation of disastrous political system of noble anarchy that led to the complete extinction of the Commonwealth.68 This is apparent even in the way in which the modern Lithuanian state is usually labelled: in contrast to modern Poland stressing a link with the Commonwealth which was a ‘Second republic’ between two world wars and a ‘Third Republic’ now, Lithuania was ‘a first republic’ in the interwar period and after the re-establishment of its independence on March 11, 1990 it has become ‘a second republic’.

66  Juliusz Bardach points out that the Mutual Assurance was considered an act of the same importance as the provisions of the Union of Lublin, see: Juliusz Bardach “The Constitution of May Third and the Mutual Assurance of the Two Nations” The Polish Review, vol. 36, no. 4 (1991) p. 417. 67  Eligijus Raila, Apie 1791 gegužės 3-iosios konstituciją (Vilnius, 2007), pp. 37 and 43. 68 In the Lithuanian historical memory this view was finally entrenched by the most popular ever history of Lithuania first published in Kaunas in 1936, and widely, although illicitely read as “the true account” of Lithuanian history during the Soviet occupation: see Adolfas Šapoka (ed.), Lietuvos istorija (Vilnius, 1991). See also the extensive scholarly study of the Lithuanian nobility in the times of Vasas by one of the most prominent historians of the interwar Lithuania as a good example of such largely negative attitude towards the political culture of the Lithuanian nobility: Konstantinas Avižonis, Bajorai valstybiniame Lietuvos gyvenime Vazų laikais (Kaunas, 1940).

190 Artūras Vasiliauskas

However, the trend of exploring continuities with the legal and constitutional achievements of the GDL and its political traditions of quest for liberty as historical roots of current political ideals of democracy and human rights is gaining strength. The preamble of the Constitution of the Republic of Lithuania adopted by the national referendum in 1992, unlike two constitutions of 1922 and 1938 of the first Lithuanian republic (1918–1940), makes a particular point that the Lithuanian nation bases the legal foundations of its statehood also on the Lithuanian statutes of the sixteenth century.69 Constantly resurging public debates about the 1791 Constitution do not impose the universal consensus about its meaning to modern Lithuania, but from 2008 May 3 is celebrated as the “memorable day” of the first written Constitution in Europe by law, alongside October 25 – the day when the current constitution of the Republic of Lithuania was adopted. The growth of personal freedoms and political rights in the GDL did not occur in sudden upheavals generated by the conflict of the monarch with elites as it was the case with Magna Carta, rather it was a long and gradual process of institutional and legal change. In the Commonwealth this change led to the domination of noble estate at the expense of the royal power and the great debate about the impact of this tradition of noble liberties and rights on the evolution and the demise of the Polish Lithuanian state will probably never end. The Lithuanian nobility that had started to develop its own constitutional arrangements with a monarch limiting his rule by law and consent long before the Union of Lublin was a genuine co-creator of this tradition, one of the many that provided distinctive historical background for the quest for freedom and democracy in Central Europe in modern times.

69  See the official English translation of the Constitution at the website of Lithuanian Parliament:

The Lithuanian sources  191

The Lithuanian sources The privilege of the King of Poland and the Grand Duke of Lithuania Jogaila (Pol. Jagiełło) to the Lithuanian nobility – 1387, February 20 This privilege together with other two, granting the Magdeburgian law to the Capital city of Vilnius and establishing the Bishopric of Vilnius issued the same year, marked the beginning of the European written law in Lithuania. By this privilege Jogaila, who by becoming the King of Poland united the latter and the Grand Duchy of Lithuania into personal union and converted the Lithuanian pagan population into Latin Christianity, defined the rights of the Lithuanian nobility and the limits of monarchical authority for the first time. Wee award to the said knights full and every power to give their daughters, granddaughters, and all women to them by blood related, away to marry during a Catholic ceremony. Should any of those daughters, granddaughters or kinswomen of the said knights bee widowed, Wee will her that she remained on the property of her late spouse for as long as she will not share her bed with another man. And should she flee under the protection of another husband she will have to goe without a dowry and the new spouse will provide for her; The Goods and Estates shall remain with her sons, should there bee any, and if not then the Goods shall goe to the kinsmen of the late Husband. This will happen according to the way in which women are married in the rest of our Kingdome. Wee doe not will for the said knights to bee charged with any labour due to us or our heirs, save in a time of necessite when to rebuild a Citie the entire Lithuanian land should bee called; in such a case each and everyone will bee called to rebuild or restore a castle. During a campaign they are to follow the olde custom and make a passage supported by their owne means and at their owne expense. Whenever there bee a need to pursue fugitive Subjects, then to such a chase, knowen commonly as Pogonia, not onely knights but men of every state able to carry a weapon will bee summoned and obliged to goe. Anyone who should convert to the holy Catholic faith and later shamefully renounce it or will oppose to accept it at all, will not partake and rejoice in any of the aforementioned rights. To testify to the truthfulness of this document our Seal to it is attached. This took place in Vilnus, on Ash Wednesday, twentieth day of the second month, Anno Domini MCCCLXXXVII (1387), in the presence of the illustrious Dukes: Skirgallo of Troki; Witwit (Witold) of Grodno; Korybut of Nowogrod; Kazimerz or Korigalo

192  The Lithuanian sources

Mscislawski; Aleksander vel Wigunt of Kiernow in Lithuania; Konrad of Olesnica; Jan and Ziemowit of Masovia; and the esteemed Lords: Bartosz of Wisenburg, governor of the Poznan district; Krystyn Chatelaine of Sandomierz; Wołodko Cup-Bearer of Cracov; Mikołaj Chatelaine of Wisla/Wiślica, our major-domo; Spytko Chamberlain of Cracov; Klemens Chaterlaine of Radom; Janusz, the Standard-Bearer of Medroysz; and Tomek, Cup-Bearer of Cracov; and many other faithful men, worthy of our trust. This was written downe by Andrzej, the son of Jan. Given by the handes of the honourable Zaklica, the Provost and Chancellor of Sandomierz; and Klemens of Moskorzow, the Sub-Chancellor of the Royal Court. Publication: Adam Tytus Działyński (ed.), Zbior praw litewskich od roku 1389 do roku 1529. Tudzież rozprawy sejmowe o tychże prawach od roku 1544 do roku 1563 (Poznań, 1841), p. 1 – 2. [original Latin text]. Translated by Weronika and Dean Edmunds.

The privilege of the Grand Duke of Lithuania Sigismund (In Lithuanian Žygimantas Kęstutaitis) to the Lithuanian nobility – 1434, May 6 By issuing this privilege Sigismund, a brother of the Grand Duke Vytautas who died in 1430 without leaving a male heir, was seeking to ensure the support of the Orthodox nobility in his struggle for power with Švitrigaila, Jogaila’s brother. Apart from granting equal rights with Catholics to the nobles of the Orthodox faith and confirming privileges of earlier rulers Sigismund pledged not to punish nobles without the due process of law proving their guilt and exempted their peasants from giving harvest tribute to the Grand Duke. P. 529 (Anatoli Lewicki, Codex epistolaris saeculi XV, Kraków 1984, t. III) Nr. 22 Troki, 6. May 1434. Zygmunt Grand Duke of Lithuania grants and confirms the Lithuanians and Ruthenians privileges, and at the same time allows the Lithuanians to grant the Russians the right to use the coat of arms, after having conferred and agreed this with the Poles. In the name of the Lord Amen. In lasting memory. Because then we prevented much of the damage arising from mistakes and doubts, when this has occurred in our times we have survived with the help of the writings and testimonies of witnesses; because we Zygmunt from the Grace of God Duke of Lithuania and the Russian Lands, Lord and heir announce to all concerned (p.530) who this affects, in the present and the future, that we desire that our lands and their well-being in Lithuania and Russia are left in the best

The Lithuanian sources  193

state that we are able to, with God’s help to care and create better living conditions, wanting above all that in the future these lands are not divided amongst nations and do not create dangers that could affect the status of these lands, but to equally enjoy the graces of these lands unanimously and adamantly and preserve the prosperity that ardently and persistently were looked after and sought, and for the more faithful service for us and due obedience that was encouraged: And first of all as a result of reports of any man overt or covert or by any other suspicions, those above the princes and boyars we do not intend to scold or punish, unless earlier in court proceedings maintaining the legal order of the Lithuanian lands they were proven guilty. Then, the above mentioned princes and boyars and their legal children, all the wealth and paternal inheritance shall be received by equal right, as it is elsewhere in other Christian countries, and have a free opportunity to sell, replace and give them according to their needs, as it is deemed to be a useful thing; however dismissing, selling or leaving them free to us or our officials will mean transferring them (i.e. through a transfer deed.) If it happens that one of the above princes or boyars departs this world, the surviving widow in her husband’s paternal estates will remain without diminution for the services to us and our successors in this world. If she wishes to quickly marry again, she will enjoy the dowry prescribed by her husband, the wealth passed down by the deceased will be left to the children. If there are no children then the brothers will inherit the wealth and as always maintain the services for us and our successors. As for the goods and possessions of our brightest Prince Alex­ an­der, once the Grand Duke Vytautasof Lithuania, the brother of our dearest memories and our majesty given, should maintain the content of the privileges from the above mentioned brother and we received. Besides, all and every one of the peasants and subjects of those princes and boyars of our lands, all pay tributes and measures called a Dzakla1, which from the days before us and our predecessors they were accustomed and required to give, but are now completely freed and exempt from. Nevertheless, the princes and boyars and their subjects will remain committed to the construction and repair of their boroughs and roads of war (military) at their own expense, without which we cannot secure the safety of

  1 Dzakla (in Polish Dziakło) is the former tribute in Lithuania to the court of the Grand Duke, originally consisting of hay, and later also other paid taxes. In Ukraine they called this djakło, in Bialorusdziakła. The root of the word is probably the Lithuanian word doubke, which means tribute, which comes from the word douti – to give.

194  The Lithuanian sources

our lands, for us and our successors; the subjects of the princes and boyars are often completely relieved from other work at our boroughs. (p.531) Besides this we also agree and allow the Russian princes and boyars to carry the coat of arms or the jewels of the nobility and use them like the Lithuanians, although not before having obtained the consent of their family brothers from the Kingdom of Poland, as those gems are to be admitted by the Lithuanians. Finally, all papers, privileges, church graces, princes and boyars of our lands in whichever assignment, articles or sentences by the above mentioned brother, given and assigned documents of our privilege, we strengthen, accept ratify and confirm them, deciding that they receive new powers of perpetual validity. For certification and confirmation of their validity we have ordered this letter to be strengthened through the seal of approval by our majesty. This occurred and was approved in the borough of the city of Troki on the day of our Lord’s Ascension in the year 1434, in the presence of the mighty knights Ostika, Castellan of Vilnius, George, otherwise Giedigold (Gielgud?) of Vissniowa, Bergal of Dewnyoltowo Chodkowe and Noble Nicholas, our court notary, who had referrals and many other reliable witnesses. Translated from Latin by Józef Macjon Teki Naruszewicz, manuscript archives of the Princes Czartoryski. 15, p. 435. At the top in other handwriting: From the manuscripts of the library of King Stanislaus Augustus, a collection of Dogelius, the inscription: The privilege of Zygmunt the Duke of Lithuania, whose rights and freedoms the Grand Duchy of Lithuania confirms. Publication: Anatolii Lewicki (ed.), Codex epistolaris saeculi decimi quinti (Kraków, 1894) vol. 3 in Monumenta Medii Aevi Historica Res Gestas Poloniae Illustrantia. Tomus XIV, p. 529–531. [original Latin text]

The privilege of Kazimierz Jagiellończyk to the Lithuanian estates – 1457, May 5 Kazimierz Jagiellończyk who was departing to Poland to resume his long-lasting rule in Poland issued this privilege in exchange for the consent of the Lithuanian nobility, who elected him a Grand Duke seven years earlier, to the adoption of Polish Crown. From now on the monarch had to appoint to the offices only the inhabitants of the Grand Duchy as well as to give them a priority in appointing to ecclesiastical offices. Nobility was allowed the right of unrestricted travel abroad and was granted the full judiciary authority over their peasants.

The Lithuanian sources  195

Kaziemirz Jagiellończyk Privilege of the Land (From the code of Porycko Puławski) LAND PRIVILEGES In the name of the Lord Amen. In lasting memory. Everything that happens in time, escapes from people’s memory and along with time and posterity can only be transmitted through the written word. This is why we Kazimierz, by the grace of God King of the Kingdom of Poland and Grand Duke of Lithuania , Ruthenia , Samogitia and other lands keeping in mind the unswerving venerable, enlightened, noble, courageous and prudent loyalty: the prelates, clergy and laity, princes, lords (literally barons), the nobility, boyars and the burghers of the lands of the Grand Duchy of Lithuania, Russia and Samogitia, which whom to us and our people as to the true and lawful heir had, have and will have in the future faithfully and constantly, and convincingly proved by experience, we recognised as appropriate that in face of their kindness, grace and generosity of our gifts and other ways to make a decent and generous retribution, so that also in the future their service is even more zealous as they see that their favours have been rewarded.    I. Therefore, first from the above mentioned prelates, princes, lords, boyars and cities of the above mentioned lands of the Grand Duchy of Lithuania, Ruthenia, Samogitia (and others), we gave and irrevocably donated, and with this letter we offer for ever and in general the same rights, freedoms and liberation, which the prelates, princes, lords, nobles and burghers of the Kingdom of Poland have now. Yet in order that this general and non-specific determination does not come into doubt in the future, it seemed right to us that these be legitimate freedoms of the cathedrals, collegiates and monasteries in the lands of our existing Grand Duchy of Lithuania and other residents of the Grand Duchy of both states or some of those included and clearly defined in the letter below.    II. In the first place, all grants, privileges and freedoms of churches, cathedrals, collegiates and monasteries in the lands of our Grand Duchy of Lithuania, Ruthenia and Samogita, both the present beneficiaries and those that will be endowed in the future, we wish to keep unbreached and defend them with all our might and without harm.

196  The Lithuanian sources

   III. For those cathedrals, collegiates and monasteries, which due to death or being vacated are without their pastor, and whose right of patronage belong completely to us or our successor, we and no other have the obligation to bring to them other pastors and no other has the duty to those churches of the residents of the Grand Duchy of Lithuania, if they would give up acquainting themselves with the customs of integrity and honesty. And if not, then another respectable and useful person from another nation could manage and help many times with whatever is needed.   IV. Also the above mentioned prelates, princes, lords, nobles and burghers of the above mentioned lands of the Grand Duchy of Lithuania, Ruthenia, Samogitia and others, we concur that as a result of overt of covert reports of any man or as the result of some suspicion, we will not punish or scold these princes, lords and burghers, through (for example) the transfer of property, imprisonment, fines or by blood (i.e. the death penalty), whilst earlier in the public court proceedings, according to the customs of catholic law, in the presence of the prosecutor and the accused, they have not been convincingly proved guilty; after the trial and execution of judicial proof, according to the custom and laws of the Kingdom of Poland, they have to be punished and sentenced according to the size and quality of their vice.    V. Also, no one else shall be committed for the crime that another has committed and it is through maintaining the order of catholic law that before the court the guilty and sentenced will receive their punishment. And so it is that neither the wife for the crime of her husband nor the father for the offence of his son, nor vice versa the husband of his wife, the son of his father or any relative or servant, unless they were involved in the crime, will be punished. And this applies to all crimes except for those against the image of his majesty   VI. We also allow the above mentioned princes, lords and nobles to have the freedom to travel from the above lands of our Grand Duchy to gain more wealth and practice in the deeds of chivalry, to travel to all sorts of lands apart from those of our enemies, and this is so, in order that the goods’ services of those who leave are not neglected but are used in the same way as during their presence so often and as often as is needed.   VII. Also, the above mentioned princes, lords, nobility, the boyars and the good burghers, paternal or given to them by the brightest ruler of the late Grand Duke Alexander Witold, predecessor and grandfather (paternal uncle) our dearest and givings of the enlightened Prince Zygmunt, if those who possess such documents or their equivalent and a final testimony of witnesses, then they will support and confirm the equal and same rights

The Lithuanian sources  197

of possessing goods as the princes, lords, nobles and burghers of the Kingdom of Poland. And they will have the freedom to sell, exchange, dispose of and use for their needs these goods. However, if the exchange, sale, disposal and use of these goods are used against us or our officials according to the legal customs of the Kingdom of Poland then they will have to be given to someone else (i.e. through a transfer of ownership act).  VIII. Also, after the death of fathers, the children of both sexes will not be deprived of their inheritance, but they have, along with their successors, the full right to own such goods, as do the princes, lords, nobles and burghers of the Polish Kingdom, who own and use them according to their needs   IX. Also when someone from the above mentioned princes, lords, nobles or burghers passes away, the widow of the deceased has the right to her husband’s estate as long as she remains in the state of widowhood. If she remarries she should give it to her husband and the children of the father of the husband will retain the estate. And if there were no children from the first marriage then the relatives of the first husband inherit the husband’s estate. And if the first husband of the estate wrote her into a dowry and receipt of this can be proved then she takes this dowry and according to the custom of law she can marry who she wishes.   X. Also daughters, (sisters) half and full, unmarried women and widows can freely marry, without asking us or our successors, although it should comply with Catholic rites.   XI. Also all of the farmers, subject to these princes, lords, nobles and burghers of the lands of the Grand Duchy of Lithuania shall be free and in general exempt from all taxes, fees, salaries (pobory), impositions and measures which are called dzaklaand from all tax burdens that are named carts and from carrying stones, beams or wood to brick kilns or lime to boroughs; or mowing grass and other unjust work, apart from work on building boroughs for necessary needs and for renewing old ones. We also make an exception for those farmers, princess, lords and nobles who were given them by us; however no less ancient and usual for us and our successors are the stany salaries, building of new bridges, repairing old ones and renovating roads.   XII. Also, we and our officials’ dependents will not accept, taxpayers, peasants and the slaves of both sexes or any subjects of the above mentioned princes, lords, nobles and burghers of the lands of our Grand Duchy of Lithuania, Ruthenia, Samogitia. So also prelates, princes, lords, nobles and burghers of the Grand Duchy of Lithuania, Ruthenia, Samogitia, our people and (the people) of our successors, of whichever sex, will not be accepted on their own or by our officials

198  The Lithuanian sources

  XIII. Also we shall not send ushers or otherwise dzieccy to be the subjects of the above mentioned dukes, lords and nobles, whilst earlier the master whose subject did harm will not be asked for justice. And if within the specified time justice is not done, then our dziecki or one of our officials shall be sent and the guilty will be punished, and he will be obliged to pay this punishment to his master and no other.   XIV. We also promise and vow, that the above mentioned states and land of the Grand Duchy will not be diminished by us but that within the borders, as that of our ancestors, and especially in the holy memory of the Great Prince Alexander Witold, uncle of the above mentioned, wielded and we shall completely and fully wield and defend these borders and with God’s help and with all our might we shall attempt to expand them. (XVI). XV2. We also promise that within these lands of the Grand Duchy of our Lithuania, we shall not give to any foreigner the lands, boroughs, cities nor any of the leases or any of the officials, or dignity, but we and our successors shall only provide for the natives of these lands of the above mentioned Grand Duchy.   XVI. And as testimony this letter is sealed with a tag. This was carried out by the hands of Michał Kieszgajłowicz from Diawintowa, Chancellor of the Grand Duchy of Lithuania. In Vilnius on Tuesday exactly on Saint Zygmunt day. In the year of our Lord Fourteen Fifty Seven (1457.) It was recorded by the hands of Marcin from Łuska, the commissioned notary. TRANSLATION NOTES (FROM LATIN TO POLISH); TRANSLATED FROM LATIN BY JÓZEF MACJON 1. In the Russian text after the word salaries (poborów), the word Serebszczyzna is added as an explanation. Serebszczyzna was a land tax in Lithuania and Ruthenia, named as such because it was paid in cash silver. 2. Dzakla (in Polish Dziakło) is the former tribute in Lithuania to the court of the Grand Duke, originally consisting of hay, and then also other paid taxes. In Ukraine they called this djakło, in Bialorusdziakła. The root of the word is probably the Lithuanian word duoklė, which means tribute, which comes from the word duoti – to give. 3. In the Russian text carriages of any weight (like the Latin translation vectaculum – carriage, vehicle, kolasa, and not the Latin word vectigal – tax). Amongst the taxes we find the names ‘carriage’ and ‘carts’. The Russian text treats these terms synonymously or interprets ‘carts’ as being a variation of ‘carriage’.

  2  Errors in the order of numbering in the Latin version.

The Lithuanian sources  199

4. Stan – a duty to maintain the reigning Duke and his court, officials and service, when they are traveling around the country or staying with the rural population; this changed over time into a tribute in kind or a money payment for service. 5. Dependents (Polish Zależni (łac. obnoxii) – all categories of dependent people who are deprived of the right to leave the land and do not have the right of freedom of movement. 6. Dziecki or detko was an official of the Duke, who travelled with orders and oversaw their execution or carried them out himself. Diers (Dzieccy) at the time of Vytautas judged in the name of the prince and enforced his judgements. Adam Tytus Działyński (ed.), Zbior praw litewskich od roku 1389 do roku 1529. Tudzież rozprawy sejmowe o tychże prawach od roku 1544 do roku 1563 (Poznań, 1841), pp. 28–35, [original Old Ruthenian and Latin text].

The privilege of the Grand Duke Aleksander Jagiellończyk to the Lithuanian estates – 1492, August 6 Aleksander Jagiellończyk issued this privilege upon his accession to his grand ducal throne. It marks the fundamental shift from the principle of consultation, when the monarch seeks advice and support for his policies to the principle of consent when he obliges himself to seek agreement for his decisions. From now on the ruler expressly commits himself to comply with all decisions he made in consultation with the lords councillors in foreign policy and internal affairs. The Council has also received the right of co-decision in appointing and removing officials as well as in managing the treasury.

Alexander Grand Duke of Lithuania Privillege of the Land (FROM COPIES OF THE LITHUANIAN PUBLIC REGISTERS T. XLI. p. 4–15. 27–30, in original, 2–9. The registered listed privileges compiled in 1541. By order of Queen Bona.) THE PRIVILEGE OF RIGHTS AND FREEDOMS OF THE GRAND DUCHY OF LITHUANIA      I. In the name of the Lord Amen. We Aleksander by the grace of God Duke of Lithuania, Samogitia and the lands of Ruthenia

200  The Lithuanian sources

lord and heir. Considering the stability of loyalty to the most venerated, venerable, enlightened, brightest, wealthy, noble, fine and providential (title burghers – cautious): prelates, clergy and laity, princes, lords an often those of the boyars and burghers of the lands of the Grand Duchy of Lithuania, Ruthenia, Samogitia which for us and our clarity (title of prince), as for the true and lawful heir of the natural lord, and in reality they have and intend to have, constantly and faithfully in the future like was proven by past events, we found it reasonable that for such great good, graces and freedom with gifts and in other worthy and generous respects to make a retribution.

The Rights and Freedoms of Poland Granted to Lithuania.

    II. In the first place to the above mentioned prelates, princes, lords, nobles and burghers the lands of the Grand Duchy of Lithuania, Ruthenia and Samogitia we gave, awarded and irrevocably gifted, and for ever to give generously, in general and in its entirety the same rights, freedoms and immunities that are enjoyed by the prelates, princes, lords, nobles and burghers in the Kingdom of Poland. However, in order that there was no lack of clarity or any misunderstanding in the future we have decided to present these freedoms clearly.

A promise to maintain the goods and rights of churches.

    III. And firstly, we want to keep intact and untouched all of the grants, privileges, immunities of the cathedrals, collegiates, monasteries and parishes of the land of our Grand Duchy of Lithuania, Ruthenia and Samogitia that have been erected and those that will be erected and funded. We want to keep them in good condition and protect them with all our might

The church benefices are promised to natives if they will be appropriate.

    IV. If in the meantime, due to death or departing, one of the cathedrals, collegiates, monasteries or parishes does not have a pastor, in the churches in which it is known that we and our successors have the full right of patronage, then we shall equip them with a pastoror pastors who if they are appropriate will be a native of the grand Duchy of Lithuania. If this does not occur then a person of another nationality, useful and respectable, which could manage and help will be presented as many times as will be necessary.

Nobody shall be punished if they are not found guilty in court.

The Lithuanian sources  201

    V. Also the above mentioned prelates, princes, lords, nobles and burghers of the above mentioned lands of the Grand Duchy of Lithuania, Ruthenia, Samogitia and others, that as a result of overt or covert reports of any man or as the result of some suspicion, we will not punish or scold these princes, lords and burghers, through (namely) the confiscation of property, imprisonment, fines or by blood (i.e. the death penalty), whilst earlier in the public court proceedings, according to the customs of Catholic law, in the presence of the prosecutor and the accused, they have not been convincingly proven guilty; after the trial and execution of judicial proof, in line with the custom and laws of the Kingdom of Poland, they have to be punished and sentenced according to the size and quality of their vice.

No one shall be punished for another’s crime, unless as an accomplice.

    VI. Also, no one else shall be committed for the crime that another has committed and it is through maintaining the order of Catholic law when before the court the guilty and sentenced will receive their punishment. And so it is that neither the wife for the crime of her husband nor the father for the offence of his son, nor vice versa the husband of his wife, the son of his father or any relative or servant, unless they were involved in the crime. And this is for all crimes apart from those committed against the image of his majesty.

Freedom to travel to foreign countries, apart from to enemy ones.

    VII. We also allow the above mentioned princes, lords and nobles to have the freedom to travel from the mentioned above lands of our Great Duchy, to gain more wealth and practice in the deeds of chivalry, to all sorts of lands apart from those of our enemies, and this is so, in order that the goods’ services of those who leave are not neglected but are used in the same way as during their presence so often and as often as is needed, and are complimented, rendered and celebrated.

The legal donation of goods, which is proved by means of witnesses or documents.

   VIII. The above mentioned princes, lords, nobles and burghers, their wealth inherited or given to them, whether donated by the noble Duke Alexander, otherwise Witold and also given by the excellent Zygmunt donated and made, which wielded, had and owned their privileges or prerogative and as well the consistent testimony of witnesses or written confirmation will

202  The Lithuanian sources

be able to confirm and prove to them that they have the same right as princes, lords, nobles and burghers in the Kingdom of Poland and provide them with the opportunity of selling, exchanging, giving away and gifting according to one’s needs. In this way, the exchange, selling, disposing or gifting of these goods must be done in the presence of us or our officials and also must be done through a transfer of ownership act.

After parents’ death the children of both sexes are included in the inheritance.

    IX. After the death of parents, both male and female children will not be denied their father’s wealth but they and their legal successors shall have full rights like princes, lords and burghers in the Kingdom of Poland to own and use the wealth according to their needs.

Widows after the death of a husband (the husband’s estate).

    X. Also when someone from the above mentioned princes, lords, nobles or burghers passes away, the widow of the deceased has the right to her husband’s estate as long as she remains in the state of widowhood. If she wishes to quickly marry again and there were children, then she shall leave them the dowry prescribed by her husband. But if there were no children then the father’s goods and possessions are left to the relatives of her first husband, that’s how all other widows should marry. If the first husband in the above mentioned goods and possessions left her a dowry and it can be proved that this was taken in line with the law, then let them marry whoever they wish in the name of the Lord.

Unmarried women and widows may marry without asking the prince.

    XI. Both daughters and relatives on the mother’s side and their relatives, virgins and widows are free to get married without asking us or our successors. However, catholic rites must be observed.

The peasants of the nobility are freed from working and paying taxes to their prince.

    XII. Also all of the farmers, subject to these princes, lords, nobles and burghers of the lands of the Grand Duchy of Lithuania, shall be free and in general exempt from paying all tributes and the fixed annual tax (collect) or a pre-emptive one called serebzczyzna and measures which are called dziakła and from all tax burdens called carts and from carrying stones, beams or wood to brick kilns or lime to boroughs; or mowing

The Lithuanian sources  203

grass and other unjust work, apart from work on building boroughs for necessary needs and for renewing old ones. We also make an exception for those farmers, princess, lords and nobles who were given them by us; however no less ancient and usual for us and our successors are the stany salaries, building of new bridges, repairing old ones and renovating roads.

The prince will not accept the farmers of the nobility, nor vice versa.

   XIII. Also, if we or our officials of the above mentioned lords, nobles and burghers from our lands of Lithuania, Ruthenia, Samogitia, the people from birth who have been subject to pay a compulsory contribution and the enslaved peasants of whatever sex or situation, will not be accepted by us or our officials in order also that the prelates, princes, lords, nobility, the boyars and burghers of the Grand Duchy of Lithuania, Ruthenia, Samogitia, likewise our people and our successors, of whichever condition, sex or situation they would be, will not dare to accept either themselves or through any official in any way.

Officials will not be sent to the subjects of the nobility.

   XIV. Also we will not send dzieccyto the above mentioned princes, lords, nobles and boyars, ushers or otherwise, whilst earlier the master whose subject did harm will not be asked for justice, which if in the specified time is refused, then our usher or one of our officials will be sent.

The serf will pay his penalty himself.

    XV. And an accused who deserves punishment, shall be obliged to pay this punishment to his master and no other.

Aleksander from his graciousness adds records.

   XVI. And besides, wishing the above mentioned prelates, princes, lords, nobles, the boyars and the townspeople, for their special distinctions and encouragement, with new graces and freedoms rejoice and continue to preserve in the above mentioned loyalty to encourage the special grace of kindness written in some articles listed below, hereby we acknowledged and acknowledge.

The lands of the Grand Duchy will not be diminished.

   XVII. And firstly and above all, we promise and vow, that the state or territory of the Grand Duchy will not be diminished by us but that within the borders, as that of our ancestors, and especially the Great Duke Alexander, in other words known

204  The Lithuanian sources

as Witold, and Zygmunt, that they wielded, and so we will completely wield and guard these lands and with God’s help and with all our might we shall try to expand and increase them in our time.

Legations abroad will be sent with caution.

  XVIII. Also, envoys or deputies will be sent abroad on matters of public good of our Grand Duchy when the need arises, on the advice of Lords, to foreign countries, namely to Moscow, ZawolskaOrdy and PerekopskaOrdy, Wallachia (Romania), the Kingdom of Poland, the principalities of Mazowsze, to Prussia, Livonia (presently Latvia), Pskov, Novgorod the Great, Twer and Ryazan, according to the custom observed by our predecessors, and to other countries as is required for the good of our countries of the Grand Duchy of Lithuania.

Peace covenants will be completely respected.

   XIX. Also we will not break any written agreements, covenants, obligations, oaths, with any country, for a long time we have had continual peace, and with God’s help we will improve and strengthen this.

Resolutions involving members of the princely will not be reconsidered.

    XX. Also, we will approve, decide and adopt any plans and tasks of the councillors and we will not change, amend, nor spoil their order without them.

The dissatisfaction of the council does not bring forth the wrath of the prince.

   XXI. Also, when some plans or matters will arise during a meeting with our gentlemen and they will not like them, we will not be angry but we will do whatever they advise us for both our and the common good.

Offices, dignity, heritage will not be given to foreigners.

   XXII. Also, dignity, leases and all other offices or hereditary wealth will not be taken by a stranger or newcomer but we will be obliged to give them only to natives.  

Offices and benefices will be assigned for free. XXIII. From the assignment of our offices and donations and also to the giving of ecclesiastic and secular dignity, the leases and offices, we will not demand anything and the same from the gentlemen of the provincial and district governors from the officials and tenants will not take or demand anything, but only take that which is freely donated by noble people.

The Lithuanian sources  205

Offices without consulting the council, council members, will not be divested.

   XXIV. Offices and any lease, will not be divested by us without the advice of our advisors (stołeczników). If one of our officials was wasteful with or harmful to our goods then they will be accused and both sides will have to appear in person in court and after the hearing the guilty will be punished according to the offenses committed, but we will not remove anyone from their offices if they are innocent.

Dignitaries and officials will be maintained in their original state.

   XXV. Also, provisional governors, tenants, stewards and all deputy officials in the Grand Duchy in our original dignity and salaries and leases of them, as if by the predecessors of our great princes, Witold, Zygmunt and parents (and Brother) of ours were kept and retained, let them prohibit and order, their rents and incomes, again let them demand and execute, as for a long time; and let them send ushers to pay for the rigours of their journey, in other words ‘rides’, leading them according to the customs of our country.

The lease will be granted through the intercession of governors.

XXVI. Also, in the case of the death of a leasee or some steward in Vilnius or the Trakai district (estate) governors, Vilnius and Trakai, in their estate, who is on a lease from us according to the requirements of merit or favour, and which will seem to us appropriate, let them apply or plead. And let this occur in all of the estates.

Boroughs near the borders will be entrusted carefully and deliberately.

  XXVII. Also, the dignity, leases and offices of the boroughs and towns, in remote borders, if they are cleared and will be open, after considering the matter by the gentlemen of our board, such offices or leases will be given according to merit or to whom we see appropriate. And our advisors have to do this.

Widows from the possessions of war expeditions.

  XXVIII. Also, widows will be obliged, who receive goods inherited after the death of their husbands to the service of the lands and military expeditions, according to the possibilities of property (and the will of rights).

King Kazimierz will be entirely respected.

206  The Lithuanian sources

  XXIX. Also, the gifts and grants of our parent that were given to someone or assigned, and if they are confirmed in writing, will always be preserved. But someone who was given something according to discretion and will, then we will apply our discretion and that of our council and we will also apply and give our donations according to our discretion. And if we want to confirm someone forever, this will also depend upon our will.

The revenue of the Grand Duchy will be dispatched according to the advice of consultants.

   XXX. Also the fees from customs, taverns and other sanctions, from wherever they come to us, have to be adopted and set aside to our treasury. These charges according to the advice of our advisors are to be converted into the common good of our country. Without the urgency and necessity of the mentioned fees, without the will of these gentlemen, they will not be withdrawn or taken away from our treasury or removed from the country.

The secular court will not be combined with the ecclesiastical.

  XXXI. Also the secular courts will not be introduced or integrated into the clergy or vice versa, and the clerical courts or matters belonging to the clerical court will not be integrated or summoned into the secular courts; and all will be retained as before, just as it was during our father’s life.

The common people will not be moved above the nobility.

  XXXII. Also we will not move the common people above the nobility, but the whole of the nobility will retain its dignity.

Advisors will be sent annually to collect taxes.

  XXXIII. Also, to the estates and taxpayers we will send two and thereafter after two men each year for the collection of taxes and the arrears of part of the tax commonly known as “niedoimki” (or “niedobirki”); and those gentlemen will together collect, as well as their servants, as it was for a long time with our predecessors.

The administration of justice in the case of default.

  XXXIV. Also, as for our parent’s life who demanded their rights and justice, we want and aim, with the gentlemen of our council, for full justice without delay.

Judgements must be free, fair and impartial.

The Lithuanian sources  207

  XXXV. We will not take anything for judging cases. Similarly our advisors will not favour one side but we will recognise the case and aim to do justice.

There will be four appointments each year for serious cases.

  XXXVI. Also if any of the more serious cases about hereditary wealth, good reputation or damage to honour were introduced to our majesty, then we shall administer justice to all, and if it occurs that we are busy with difficult and serious matters, then we shall acknowledge this issue and set four appointments for it. And if the matter is not resolved during the first, second or third appointment then at the last we shall without delay with the gentlemen of the council administer justice.

Inherited wealth from relatives will not be redeemable. XXXVII. Also, we will not redeem the inherited wealth from relatives and loved ones, nor will we redeem anything to the detriment of relatives or loved ones, but only he who is a relative, will receive and possess hereditary wealth after paying a fee.

A woman who gets married outside of the Grand Duchy is deprived of a moveable or unmoveable dowry.

XXXVIII. Also, if a young lady or widow wishes to marry in another country outside of the Grand Duchy of Lithuania, taking the paraphernalia and dowry, then she should leave the inheritance (this should not in their possession). Grants, immunities, freedoms and all the great ecclesiastical and secular rights of the Duchy are confirmed in their entirety.   XXXIX. Also, at the end, all papers, privileges, graces and immunities for the cathedrals, collegiates, monasteries and parishes for the prelates, princes, lords, nobility, boyars and burghers, on the lands of the Grand Duchy of Lithuania, Ruthenia and Samogitia, in whichever title, statute, section, article or sentence given by the brightest and most stately former masters, Witold, Zygmunt, King Władysław our Grandfather and parent of our dearest King Kazimierz, Grand Dukes of Lithuania, our predecessors, given and granted, in the document below we renew, strengthen, confirm, approve, accept and ratify our privileges, deciding that they are eternally validated. Rather benevolent ordinance for matters of serious significance.    XL. In all matters and disputes, including that of inherited wealth, and honour and glory and other such important matters that were previously described, if the affairs of the state stand in their way at the first deadline (matter) we cannot finalise the issue,

208  The Lithuanian sources

then four deadlines in the whole year are established and if someone in the fourth and last deadline does not appear in the court, so the case is lost and the judgement is made in favour of those who have turned up on the date, with the exception that if someone from one of the sides is busy or prevented from attending due to service for us for example for the lands or as a result of illness. In this case, in order that no harm was done to anyone or any injustice made, the gentlemen of our council will decide and settle the case.    XLI. For the credibility of all, etc, given in Vilnius, the day of the Transfiguration (August 6) in 1490. (“The date is obviously wrong. Kazimierz Jagiellończyk, father of Aleksander died on 7 June. Aleksander immediately after the death of his father, in June 1492, was elevated to the position of Grand Duchy. It is known that at the beginning his reign, the Great Dukes, confirmed and repeated their predecessors privileges: The present privileges of Alexander in the few months just after the death of his father on 6 August 1492. Lithuania granted: only to scribe in the expressed year a number of churches. M. CCCC. XC left and did not write II”). 1. Serebszczyzna is a land tax in Lithuania and Ruthenia, named as such because it was paid in cash silver. 2. Dzakla (in Polish Dziakło) is the former tribute in Lithuania to the court of the Grand Duke, originally consisting of hay, and later also other paid taxes. In Ukraine this was called djakło and in Bialorus dziakła. The root of the word is probably the Lithuanian word duoklė, which means tribute, which comes from the word duoti – to give. 3. Starania: Efforts (procuration) is an obligation for the ruler to provide food for his subjects and servants, residing on his territory Publication: Матвей К. Любавский, Очеркъ Истории Литовско-Русскаго Госудаpства до Люблинской унии включительно (Москва, 1915), pp. 328–334. [original Latin text].

The first Lithuanian Statute – 1529, September 29 Written Laws Given to the State, the Grand Principality of Lithuania, Rus’, Samogitia and Other [Lands] by Enlightened Lord Sigismund, by the Grace of God King of Poland, Grand Prince of Lithuania, Rus’, Prussia, Samogitia, Mazovia and Other [Lands]. The first Lithuanian statute was drafted in the Chancery of the Grand Duchy, debated and approved in the Lithuanian Sejm in 1522 and, after a lengthy process of amendments and improvements, confirmed by the Grand Duke Sigismund the Old in 1529. The statute that merged and summarized into the comprehensive legal code the dif­ferent strands of customary law, Ruthenian legal tradition and the privileges of the Grand Dukes as well as the elements of Roman law together with

The Lithuanian sources  209

the precedents of contemporary local judiciary prac­tice, has further entrenched the principle of mandatory consent to royal decisions as well as personal liberties of the noble estate. In 1566 and 1588 two other statutes based on the Statute of 1529, but thoroughly revised and expanded were adopted and finally estab­lished the legal foundations of state and society in the Grand Duchy for two hundred years. [SECTION ONE] We, Sigismund, by the grace of God King of Poland and Grand Prince of Lithuania, Rus’, Prussia, Samogitia, Mazovia and other [lands], having ourselves sufficiently examined with good intent and desiring in accordance with our sovereign grace to grant Christian laws to all prelates, princes, banner lords, magnates, holy knights, nobility and the entire state and their subjects, the native inhabitants of the lands of our Grand Principality of Lithuania, regardless of their class or origin, all their rights and church privileges, both [for persons] of the Latin faith as well as Greek, as well as secular [privileges] which were received from the memory of the kings and grand princes, our father Kazimir and our brother Alexander, our ancestors, during their lifetime, wish to consider [these privileges] binding for whatever possessions and rights [these subjects] may have regardless of on what date, Latin or Russian, these freedoms were given. And [we also wish to consider binding] granted privileges consisting of just decisions as though [these privileges were] our documents inscribed word by word on our records. We by our sovereign word and by our personal oath on the Holy Gospel pledge to observe and preserve, as we pledge and promise to confirm and secure [these privileges,] with all their regulations, customs and articles by our grace, nobility and generosity. We have resolved to confirm them and establish as we confirm and secure, commanding that they be valid for all time.  1. The Sovereign Pledges Not to Punish Anyone as a Result of Slander even if the Matter Concerns Insults to the Dignity of His Highness. And if Someone Without Grounds Accuses Another, then He Must Suffer that Same [Punishment]. First of all, to the above-named prelates, princes, banner lords., nobles and cities of the noted lands of the Grand Principality of Lithuania, Rus’, Samogitia and other [lands], we grant that for no one’s slander, overt or covert, [nor for] unjust suspicions of those princes and banner lords, [hereditary] nobles and burghers, do we want to punish or threaten [anyone] with any kind of money fine, death penalty, or imprisonment, or confiscation of property, but only after plaintiff and defendant personally appear before a court and by means of a public trial [in accordance with the custom] of Christian law once and for all their guilt is determined; only then,

210  The Lithuanian sources

after the trial and such an establishment of guilt in agreement with the custom of Christian laws may sentences and punishment be [meted out] according to the gravity of their crimes. Also, whoever [by] slandering subjects another to disgrace or execution, or death or [the confiscation of an] estate or some other punishment, but does not present evidence, must suffer that same punishment.   2. Concerning the Abuse of the Dignity of the Sovereign Expressed in the Case of Someone Who Has Fled to a Hostile Land. If someone of our subjects flees from our state to a land of our enemies, then he forfeits his honor and his estate, patrimonial, earned and purchased neither to [his] children nor to relatives, [but] only to the sovereign.   3. If Someone Buys or Takes in security the Estate of Someone Who Later Flees to a Hostile Land. If that person prior to the fulfillment of this evil act [while] still in our state sells or turns over as security to someone any sort of estate, and the purchaser is not aware of his intentions and swears to that effect, then he may quietly possess the goods bought or taken in security. But if he does not want to swear an oath, then he loses his own estate as well as that which he bought [or took] from [the other as] security.   4. If a Father [Abandoning] His Children, or One of Their Relatives Flees to a Hostile Land. Also we decree: if father flees to a hostile land and leaves his children behind and there was no apportionment, then such an estate transfers to us, the sovereign, because for the crime of their own father they are separated from the estate. And even if they are not adults, [they are treated] in the same way. Also, if someone’s step-brother or uncle, or someone of the family flees to a hostile land, then his share [of the estate] transfers to us, the sovereign, and no relative has a right to it. And if a son is independent of his father and flees to a hostile land, then his share goes neither to the father nor to a brother, but only to us, the sovereign. But if the sons are independent of their father, and the father flees and they are unaware of their father’s intentions and can justify themselves with their own personal oaths, they do not forfeit their property, and only the father’s share goes to us, the sovereign. In the same way, even brothers, if they are independent and a brother flees, and they are unaware of this and do not assist him,

The Lithuanian sources  211

and can justify themselves with their own personal oaths to that [effect], then they do not forfeit their shares, but only the share of that brother who fled transfers to us, the sovereign.  5. In What [Manner One] Must Be Punished Who Forges Royal Orders or Seals. If anyone forges our orders or seals or deliberately uses forgeries, every such forger must be punished by fire.   6. In What [Manner One] Must Be Punished Who Does Not Respect a Crown Official or Envoy. If any of our subjects attacks our land officials or envoys on our land mission, injures or beats them, that one must be sentenced to death just as though he had insulted our sovereign highness.   7. No One May Suffer for [the Crime of] Another, but Everyone for His Own. Also, no one may be punished or tried for someone else’s crime, [but] only that one who is guilty. Thus, in accordance with Christian laws, one [whose guilt] has not been established by a court may not be punished, i.e., a wife not for the crime of her husband, nor a father for the crime of his son,3 nor a son for [the crime of his] father, nor anyone [for the crime of his] relatives, nor a servitor for [the crime of] his lord.   8. If Someone Obtains Much under the Pretense of Little or Takes [Something] Without a Grant. If anyone obtains much for little and this is proven against him in the proper manner by a trial, and it is established that he took more than was asked, such a person forfeits that service estate (vysluga), and that granted (danina). And if he asks in the proper manner, but takes [something] willfully and joins it to that [received], then he forfeits to the sovereign that service estate and that which he took. And whoever joins to his patrimonial estate without a grant (bez daniny) people or lands, virgin forests (pushchi), hunting forests [or] lakes, whatever the value of the estate which he joined to his own he must forfeit to the sovereign [the corresponding value of his own] estate together with that which he took. And if he took one or two individuals, or ten, or however many there were with the lands, or [even if they were] uninhabited (pustye) lands, he must pay a fine [for] every person, as many as he took with his own inherited [persons], and for every land with his own land.

  3  S: nor a father for the crime of his son lacking.

212  The Lithuanian sources

  9. Everyone in the Grand Principality of Lithuania Must Be Tried by One Law. We desire and establish to be preserved for all time that all our subjects, poor and rich alike, whatever their condition or position, be tried equally and identically by these written laws. 10. To No One May Papers Be Issued by the Chancery for the Suspension of Legal Procedure, Except for Valid Reasons. We also promise that henceforth neither we nor our descendents will issue for presentation to any courts our postponement papers (listy zapovednye) which in any way could delay court examination, with the exception of only three cases: first, should someone on government business be found detained by our enemies; second, should someone be in government service in our states; and third, should someone actually be ill, then that one who does not appear must on the second date [for trial] swear that he was actually ill.4 But in any circumstances other than these cases, our land and local officials must not be influenced by such papers received in prejudice to the other side, nor accept them. 11. Safe-Conduct Papers Must Be Returned to Everyone. If someone delivers to someone our safe-conduct papers, [issued] at his request, be this to prince or lord, or to noble, or zemianin to zemianin, whoever of these, having read the papers retains them and does not wish to return them, must pay his gracious king a fine of twelve rubles of grosh, and to the one who delivered to him the papers [which] he kept, a second twelve rubles of grosh.5 And the safe-conduct papers must be handed over in the proper manner: either through a crown dvorianin, or in the county, before a county vizh, or before outside people, noble or others worthy of confidence; and the vizh besides this must have witnesses (storona). 12. Concerning Royal Postponement Papers – If Someone Disregards Them. We also establish: if someone be tried with anyone else over a land or hunting lands, or a meadow, or a bee-tree, and if that one who loses the matter, not heeding the legal papers causes damage to his neighbor in spite of the judgement, taking possession of the aforementioned property, and [the latter] turns to us, the sovereign, and takes a paper with our royal injunction (zaklad) that the peacebreaker take this no more, in defiance of the legal decision, and he in spite

  4  F: then that one who . . . actually ill lacking.   5  S: and to the one who . . . rubles of grosh lacking.

The Lithuanian sources  213

of our sovereign injunction and that legal decision seizes that,6 then [he] must [pay for breaking] that injunction and compensate for the damage, and the victim in conformity with the decision of the first trial takes complete possession. And in our absence our noble councils must issue injunctions in the same manner and act likewise. 13. If Anyone Frees from Prison a Convicted Criminal or Evil-Doer. If someone by the decision of a court is put into our royal [prison] or some other prison for non-payment of some sum or for some other charge, and by the carelessness of that one into whose hands this guilty one was given [the criminal] escapes from jail, that one must himself pay the sum or compensate the damage for which the guilty one was imprisoned, and as was confirmed by the proper evidence of the plaintiff, or must bring anew the escapee into court within a time established by the court: if in our royal land, then [within] twelve weeks, and if in a foreign land, then three times twelve weeks. 14. [To] Those Who under Kings Kazimir and Alexander Solicited Something, and Sovereign Promises to Administer Justice. Also, if someone during the life of our father demanded justice, [asserting] his rights, and under King Alexander solicited [the same], and produces papers soliciting our father and brother, we want and pledge together with our council to administer all justice without delay. We may take nothing from [that one’s] rights nor may our council [do so without examination of the matter]. Neither may we show preference to one side, but [we] shall be obliged to render and administer justice to everyone.7 15. No One May Claim that Which Someone Else Had in Possession under Kazimir and Alexander. We also grant to princes, lord, banner lords and nobles, that if someone under King Kazimir freely held estates, persons and land, and under King Alexander no one laid claim to this property (dobra), and even if he had no papers to it, then he may freely hold this and has the full right to dispose of, sell or give as a gif8 one-third of his estate, and make free use [of it]. However, he must sell, exchange, dispose of and register them thusly: personally appearing before us, the sovereign, and in our absence [before] our lord governors and marshalls, land and court, and our elders (starosty), in whatever county (povet) this is, he must accept our settlement. But the lord governors

  6  S: and he in spite . . . seizes that lacking.   7 S continues: And even if [there is] no assertion of rights, [justice] must be done in no way other than [by] witnesses, or our documents, or [the documents] or our officials.   8 F: he may freely hold this, and has the full right to dispose of, sell, assign, given as a gift, or exchange.

214  The Lithuanian sources

(voevody) and marshalls, and our elders, each in his own county, must permit the purchase and give to him their own legal papers, and may not order their clerks by the legal papers to take more [than] only two grosh per person, one grosh per ten bochki of land, [and] one grosh per ten vozy of meadow. According to the legal papers of the lord governors and marshalls, and our elders, everyone of them may keep his own purchase just as according to our legal papers. Whatever concerns our royal charter, that may not be sold nor relinquished before lord governors,9 nor marshalls, but [only] before us, the sovereign, with our royal consent. And if someone gives another or sells for perpetuity more than one-third [of his estate], then that one to whom it was given or relinquished or given as a gift, may not receive it, and the money which was given for it must be returned. And if money was given in excess [of what] one-third costs, then [the buyer] may take [back] only that money which one-third costs, and forfeits the remainder of the money. 16. Two Portions of an Estate [May Be] Given Freely in Security for Money, but [May] Not Be Sold in Perpetuity· Also, we authorize the permanent sale of [only] one-third of an estate. However, should money be necessary for [the performance of] our land service or even if someone [must] obtain money for his own need,10 then he may mortgage even those two parts, but only for that sum for which the two parts would sell. But no more than that may [anyone] accept, nor permanently deprive relatives of. And if [someone] wants to mortgage even those two parts, then [he] may not take more than what these two parts cost. And what is given in excess of this sum, [the person who gives it] must forfeit that money erroneously given in excess. 17. If Someone Wills Something to Someone in a Testament or Paper and Declares [This] Before the Sovereign and Lords of the Council, That [Property] May Be Held in Perpetuity. We also establish and permit with the advice of our councils that if someone, being in good health, before our majesty or before any of our officials (vradniki) of that county in which he lives, personally affirming this, wills to someone else by testament or by

  9  S: relinqushed before council lords. 10  S, F(ZPL): or even if . . . for his own need lacking.

The Lithuanian sources  215

record one-third of his patrimonial or matrimonial estate, [and] that one to whom it is assigned has our papers to it, or the papers of our county official, then that testament or document must be considered valid. And if someone wills without our authorization or [without the authorization] of our county official one-third of his estate, being ill, but having adequate witnesses, such a document must be considered [valid]. However, after the death [of the testator] that document must be confirmed by us, the sovereign, or by the lords of the council for the relatives. 18. If Something Is Given to Someone by Document and He Does Not Make Use of This Document and Remains Silent Ten Years. We also establish that anyone who gives a document to someone for something or makes a record before a proper witness or before an official for something, but that one to whom it is assigned remains silent for ten years, for such a person who under land prescription (davnost’ zemskaia) is in possession or in usufruct,11 those assignments after the expiration of a ten-year period may not be valid.12 However, if someone in the course of the period of land prescription asserts a claim and does not lose his things by silence, then he does not forfeit [them] by prescription. If [the property] was assigned to one who had not come of age, then the prescription does not apply to such a person in his minority, but only from his majority. Majority for young men comes at eighteen years of age, for girls at fifteen. And if someone is on foreign soil, then the prescription does not apply to him, but from that time when he returns from the foreign land to his own he must not miss the period of land prescription. 19. If Someone Who under King Kazimir Possessed Freely Some Sort of Estate, and under Alexander No One Claimed It. Also, if someone possessed freely an estate or patrimony under King Kazimir, and under Alexander no one claimed it, then [he] may hold it freely. And who solicits lands and the king gives [them] to him, may [hold] nothing [more than] that which was given to him as held by the king. And if someone takes away that given by

11 S: Instead of remains silent . . . usufruct — remains silent in the course of ten years and does not make use of the assignment. 12 S continues: but that one who held that and made use of that through [the period of] land prescription may hold it forever.

216  The Lithuanian sources

the sovereign, [the grantee] may seek that.13 And if someone took that land and held it under Vitovt, Sigismund and Kazimir, that one even now may hold that. 20. If Someone Defames the Honor of Another, Justice Must Be Administered on the Fourth Date. Also, if someone defames the honor of another, or his good name,14 and that [matter] comes to our attention, we are obligated to administer justice to all. And if at that time it happens that on account of great difficulties there is no time [to examine] such matters, then in the course of a year we shall establish four dates, and if no clearly definitive decision is reached on these matters on the first, second, or third dates, then we shall reach a definitive decision without delay with our council members with the coming of the last date; and up to this fourth date the honor of that one judged must suffer no damage. And if he dies, not having reached the fourth date [set for the examination of] this matter, then neither his honor nor the honor of his descendents must suffer any damage. And the one insulted may not refuse [to perform] our service. And if he is murdered, and that matter is not settled [prior to his death], it must not damage his [honor] nor [that of] his descendents. 21. If Someone Establishes New Duties. We also direct that no individual in our state, the Grand Principality of Lithuania, may invent nor introduce new duties on any roads, in any cities, on any bridges, nor on weirs, waters, nor in markets on his own estates besides those which were established long ago, and for which there are documents of our forefathers, grand princes, or ours. And whoever dares to establish new duties, forfeits that estate in which he established [them], and [the estate] transfers to us, the sovereign. 22. Concerning the Liberation of Persons from New Payments and from Ρodvod and from Labor Other Than [That Prescribed by] Old Established Customs. We desire that all people of the commonwealth, subjects of the princes and banner lords, nobles, boyars and burghers of these lands of the Grand Principality of Lithuania, be withdrawn from and forever liberated from the payment of any tribute or assessment of the so-called silver tax (serebshchizna), and also

13 S: And who solicits lands and the king gives [them] to him may seek nothing more then [what] the sovereign gave [him]. 14  F: bad name.

The Lithuanian sources  217

from the kind payment (diaklo), and from all obligations for transport, called podvod, from the carting of stone, wood, or firewood for the kilning of bricks and lime15 to our cities, from the mowing of hay and from other unspecified labor. But we wish to preserve as inviolable the long-established customs of the assignment of lodging (statsiia) in camps, long since established, the repair of old bridges and the building of new in old towns, the repair of old castles16 and the erection of new portions in very old towns, the building of new bridges and the repair of old roads17 and the feeding of our messengers where it has long been done. 23. If Someone Contests a Royal Verdict. If the sovereign with the Council of Lords considers something and makes his royal decision and someone wants to contest the sovereign’s decision,18 then such a person, of whatever class, the upper or lower, must serve a term of imprisonment of six weeks and, besides that, must pay to the royal treasury twelve rubles of grosh.19 24. If Someone Solicits Something for Himself, but Before Him [It] Was Given [to Another], and Before Was Assigned in a Royal Privilege, Such a Person Must Recognize the First Privilege. Also, if someone solicits for himself something and in a privilege that which he requested was assigned [to another] and written out earlier in a privilege and confirmed, and [the other person] in the course of several years makes use of it and holds it in his possession, such an earlier privilege or document is valid, and [the one who received it] may hold it and make use of it by virtue of the earlier date and the confirmation of that privilege. And the later document or privilege may not be valid. Also, if someone solicits something for himself and in the document he describes or accepts [it], but was not in possession of it for ten years, then such a person after [ten years] can make no claim to it, and his document may not be valid. 25. While in the Kingdom of Poland the Sovereign May Grant Nothing to Anyone Nor Confirm Privileges.

15  S: and lime lacking. 16  S: and the building of new . . . old castles lacking. 17  S: and the repair of old roads lacking. 18 S: decision, and for that [reason] concerning that matter speaks [out] and is summoned to court, then such. 19  S continues: and to that one whom he calls to court [he must] compensate damages.

218  The Lithuanian sources

We also decree that from this time neither we ourselves nor our descendents while in our state, the Kingdom of Poland, may grant to anyone in our state, the Grand Principality of Lithuania, estates, people, nor lands, nor confirm earlier grants [for those] to whom [such things] were given. But we ourselves and our descendents, while in the Grand Principality, may give our subjects [such grants] and reward them in accordance with their service. And we may not grant privileges in perpetuity to anyone, anywhere but in conference with our lords of the council at the general diet. And so, if after this our decree, when we are in Poland, [someone] in some way solicits from us people and lands, or the confirmation of an earlier grant by means of our privilege, [we] then shall not defend such our documents and privileges, and neither we ourselves nor our descendents may recognize them. If something concerns the purchase [of something], we may confirm [that] for anyone, anywhere, even while in our state, the Kingdom of Poland. 26. No One Traveling by Road May Billet on a Crown Manor. We also decree that no one of our subjects, traveling by road through our manors in our state, the Grand Principality of Lithuania, may20 billet [on] nor take any provisions (statsiia) from our crown manors for himself and his horse, nor fish in our fishponds. But they may stop on those manors located in virgin forests; however, they must not cause any damage or fire in those our manors. And if someone acts contrary to this our decree and billets on our manors, takes provisions for himself and his horse, fishes in our fishponds, or [on the occasion of] billeting in dense forests, causes any damage to our manor, such a person must pay us twelve rubles of grosh and compensate us for all damage.21 27. Decree of Land Prescription. We also decree the land prescription for the exercise of rights: that any [person] of whatever origin, high or low, [who] is silent [about] his [immovable] property, estate, or land, and does not assert his rights for ten years, and does not make reference to this, such a person loses [this] his [immovable] property, and must remain silent about this forever.

20  S: the Grand Principality . . . may lacking. 21  In S follows one more article lacking in other MSS:

The Lithuanian sources  219


Concerning the Liberties of the Nobility and the Expansion of the Grand Principality  1. The Sovereign Pledges [to] the State by His Grace the Grand Principality and [to] the Council of Lords to Belittle Nothing. Also, if the Lord God deigns to grant to us another state or kingdom, then not only shall we not belittle our state, the Grand Principality of Lithuania and our councils, but we shall guard that state from all defamation and degradation as our father did [in] glorious memory at the time of his fortunate reign.  2. The Sovereign Pledges to Expand the Grand Principality of Lithuania and Restore to the State What Is Taken Illegally. Also, we shall not reduce the estates (dobra) of that Grand Principality of Lithuania, and that which is torn away unjustly or illegally taken or obtained we wish and shall return to the authority of that principality.   3. Foreigners May Not Be Granted Property Nor Title. We also pledge and promise that in our lands of that Grand Principality we shall not give22 and our descendents will not give in holding and usufruct23 lands, cities, towns, or any kind of inheritance or holdings, or any kind of titles or honors to anyone from foreign countries, but only to local natives of those lands of the above-mentioned our Grand Principality.   4. Old Offices Must Be Preserved. We also establish: in spite of the fact that we gave written law to the lands of the Grand Principality of Lithuania, by nothing shall we belittle the old offices of the voevodstvo of Vilna nor the voevodstvo of Troki, nor other [offices] of the governors and castle-administrators (kashtaliane), land marshalship and court marshalship, our elders and officials; each of them in his county may carry out his duties: to judge, govern, send his detskie and execute his office according to the old custom; [but they] may judge only by this written law.   5. Offices May Not Be Taken Away for Reasons of Default. Also, derzhavtsy of our manors and tivuny by reason of hearsay evidence may not be deprived of their posts by us. But if someone

22  S: shall/will give. 23  S: in holding or [as a result of] a request.

220  The Lithuanian sources

of the officials is charged before us as a waster and as having caused trouble in our manor, [then] both sides must personally appear before us. And having heard both sides, the guilty one will receive his punishment as deserved. And without guilt we shall not take away offices.   6. The Sovereign Pledges to Preserve All Old Decisions, and Pass New Ones with the Lords of the Council. Also, everything concerning the preservation of land privileges and customs which are described in those privileges is confirmed and established, and we shall make and implement new decisions [and] increases in their number which would assist our and the state’s benefit only in the spirit of the old time, and also with the knowledge, counsel and consent of our councils of the Grand Principality of Lithuania.  7. His Highness, the Sovereign, Pledges to Preserve Intact the Freedoms of the Princes, Lords, Nobles and Burghers. We pledge by our royal person to preserve for all nobles, princes, banner-lords and all common boyars, burghers and their people, liberties and freedoms given to them both by our predecessors and by us.   8. The Sovereign Allows Everyone to Freely Leave the Royal Land for Training in Knighthood to Any Lands Other than Enemy Lands. We also decree that the above-mentioned princes and bannerlords, nobles and boyars, may leave completely freely from those our lands of the Grand Principality of Lithuania and other [lands] to find for themselves a better share and training in knighthood to any other lands besides those lands of our enemies. However, in the absence of those who leave, our service from their estates (dobra) must not be suspended, but must be performed for us and our descendents as much as is needed in accordance with the land decree. If a son leaves on knight’s business, leaving his father, and the father dies and does not leave behind him a guardian over the estate (imenie), then we, the sovereign, may appoint over those estates a guardian who would perform land service; an absent son or brother [does] not forfeit the estate.   9. After the Death of the Father, Children, Sons and Daughters, May Not Be Deprived of the Hereditary Holdings. After the death of the father, children, sons and daughters, may not be deprived of estates received as inheritance from father

The Lithuanian sources  221

and grandfather, but in accordance with the law they themselves with their descendents receive these estates in full possession just as princes and lords of the banner, nobles and burghers of the Grand Principality of Lithuania hold them and extract use [from them]. 10. The Sovereign May Not Raise Simple People over Nobles. We also may not raise non-nobles over nobles, but [shall] preserve all nobles in their dignity. 11. Concerning Proof of Nobility. We also decree: if someone says to someone that [that one] is not a noble, then that one who [would] prove [nobility] must present from the side of his father and mother two nobles, and those [nobles] must swear an oath [with regard to their nobility]. If his family line has ended, but [the accused] is a local native, then [he] must supply neighboring boyar-nobles (boyar-shliaktichi) who know that [he] is a noble. And those boyars, whom he supplies, must together with him swear an oath that he is from a noble line. And if somehow a foreigner should be a visitor, then [he] must go to his country from where [he came], and there before the authorities must prove his nobility and bring from the authorities sealed papers proving his nobility. But if there was war with that country from which he [came], then [he] must supply two nobles from that country from which he [came], and those must together with him swear an oath that [he] is from a noble line. By this he proves nobility. 12. If Someone Insults Someone, Calling Him Illegitimate. We also decree: if someone says to someone: “You are a son out of wedlock,” but does not give evidence of this to him, then we order that such a person must remove this slander before a court with these words: “What I said about you, that you are a son out of wedlock, I said as a dog about you.” And this is the manner in which illegitimate origin must be proven: if his own father denies him and declare that this is not his son, or writes this down in a testament, depriving him of his entire estate, or has him by an unmarried wife, then such a person must be acknowledged as legally illegitimate. And it must not be proven by any other means. However, the father with a step-mother may not deprive his son of his estate nor declare him illegitimate if during the life of the [son’s] mother [the father] considered him his son.

222  The Lithuanian sources

13. If Someone Denies Someone’s Nobility, then Later Repudiates [His Own Words]. If some noble denies the nobility of another and for this [he] is brought to trial,24 then we decree: that [if] the one who defames the nobility of the other and [for this] is brought to trial does not assert this, then to that one defamed no damage is caused, and he is not obligated to prove his nobility by trial. 14. Concerning Beatings of a Noble, and [Concerning the One] Who Beats Him. If a noble beats a noble, then in accordance with the custom of law [he must pay] twelve rubles of grosh. If a simple peasant (khlop) or burgher raises his hand against a noble to beat him and to stain him with blood, and should [the noble] prove that against him by a court trial, then [the peasant or burgher] may be punished by nothing other than the severance of the hand unless that burgher is a member of the [town] council. And if [the burgher] is of the council and beats a noble, then he must compensate [for the beating with] twelve rubles of grosh, but does not forfeit the hand. 15. If a Noble Earns a Lord’s or Prince’s Estate and Wants to Leave with [This Estate]. If someone of our subjects under a prince or lord or someone else earns an immovable estate, then in accordance with the documents given to him for that, leaving that estate to that lord or his descendents, he and his descendents may freely leave to wherever [they] desire, unless by those documents given to him it was stated that with this estate [he] may serve whom [he] desires. And if someone wants to give such a document to his servitor, then, summoning worthy people, [he] must give it with his seal and under the seals and proper evidence of [these] people. [Besides this], this lord himself, or by written document must ask us to confirm this for him. [Only then] is such a document valid. If someone earns an estate from his lord, and after the death of his lord whom he served the children of that lord want to divide [the estate], but at the time when they divide [the estate the ser-

24 S: another, or says anything else against him which concerns his nobility, honor, or his good name, and for this [he] is brought to trial.

The Lithuanian sources  223

vitor] does not declare [that he earned the estate], and does not present the document, and the lord does not confirm by our document that given to the servitor, and [the children] divide [the estate], then such a document may not be valid, because [the servitor] was silent [concerning it]. And that estate goes to the heir (otchich), and [the servitor] must serve that one to whom [the estate] is given [by the apportionment]. And if he does not want to serve him, then he must return the estate with all [property] given him, and he himself [may] freely leave with all his movable possessions. 16.

In What [Manner One] Must Be Punished Who Treats Without Respect the Documents of Our Governors, Elders and Derzhavtsy. We also decree: if someone is not respectful of the documents of our governors, elders, and derzhavtsy, or beats a servant [of ours], or discards a document,25 such a person is fined as for violence: twelve rubles of grosh. And to this servant [is paid] compensation according to his origin, if [the beating] is proven by trial.


Illegal Taverns Must Be Closed by the Governors. We also decree and order our governors, elders, and all derzhavtsy of the Grand Principality of Lithuania not to permit the illegal brewing of beer in taverns in unauthorized places, particularly those which do not have our permission by our document or [a document] of our ancestors. And for this reason we order that everyone of you close such taverns regardless of whether [they belong to] ecclesiastical or secular persons, lords, or anyone in general, and take possession of all those vessels in which is brewed beer, and deliver them to our royal court, because from [the existence of] such taverns come many crimes, and our royal profit is lessened as well as that [of those] who have permission by our document [to brew beer].

Karl von Loewe, The Lithuanian Statute of 1529, published by E. J. Brill, [The Netherlands, 1976]. Reproduced with permission.

An address of Lew Sapieha, the vice chancellor of the Grand Duchy of Lithuania, to all estates of the Grand Duchy in the first edition of the Third Lithuanian Statute of 1588 The drafting of the last Lithuanian statute by the specially appointed commission and the chancery of the Grand Duchy with an active

25  S: discards a document, or tears up a document, or falsifies a document.

224  The Lithuanian sources

participation of the nobility that was submitting amendments in dietines and conventions, lasted twenty years. The King-Elect Sigismund Vasa who had to seek a separate recognition from the Lithuanian nobility has confirmed it in 1588 on January 28 during the Coronation Sejm. The third Lithuanian statute, has crowned the long process of establishing and defining the personal freedoms and political privileges of the Lithuanian nobility, that after the Union of Lublin continued to perceive itself as a distinct community of citizens. Lew Sapieha, then the vice – chancellor of the Grand Duchy and one of the leading figures in drafting the statute in his address to the estates of the Grand Duchy prefacing its first printed edition has compellingly stressed that a monarch, like everyone else, was subjected to the rule of law. The wise men of all times observed that in each country nothing can be more precious for a honorable man than freedom, and he must abhor subjection so much that he has to chase it away from himself not only by his wealth but also by his death. Henceforth honorable men spare neither their estates nor their lives against each enemy, to avoid falling under his cruel rule and living according to his will and mind, being robbed of their freedom. It is not enough, however for a man to be free from the captivity of external enemy if he has to suffer from the domestic enemy above him. Therefore a bridle or a curb to restrain the insolent was invented, so that the fear of law would hold them back from any violence or wrongdoing and they would not torment the weaker and the poorer and could not oppress them, since the laws were established not to allow the rich and powerful to do anything they want and as Cicero has said – we are prisoners of laws in order to be able to avail ourselves of our liberties. And if there is nothing dearer to a honorable man living safely in his fatherland than being not afraid of anybody staining his good fame or hurting his body and health or doing harm to his estate he should ascribe this to nothing else but a law, under protection of which he stays in peace with everybody and does not suffer any coercion, humiliation and detriment to him, since it is the goal and effect of all laws and it must be so in the world that everyone shall keep his good fame, health and property unscathed and shall not suffer any loss in all that. And we boast of this liberty among other Christian nations, that we do not have above us a master who would rule us by his will but not according to our rights and we freely enjoy our honourable glory as well as lives and estates, because if anybody harmed us in one of these three things, and tormented us according to his liking and against our laws, he would already cease to be our master, but would become abuser of our rights and liberties and we would have to be his slaves. And indeed it rightfully becomes us to thank our Lord God, that under the reign of our masters – Their Majesties

The Lithuanian sources  225

Kings and Grand Dukes, we have that power and freedom in our hands and by creating laws ourselves we guard our freedom in everything as much as we can, since not only a neighbour and our fellow citizen in our fatherland but also a ruler, our master himself, can not enjoy any more dominance over us, only as much as the law allows him. Therefore, since we have such a treasure in our hands that can not be bought off by any sum of money it becomes to every honourable man to be aware of it and being well versed in it, not only to restrain himself and his own urges as well as to conduct himself according to the written law and not harm anyone, but also to know where to seek protection and remedy about his own grievance if he has been wronged, since as one Roman senator deplored another for not knowing the Law of his country, each citizen, who boasts about his freedom, but does not want to know and understand the laws by which his whole freedom is protected, also deserves a censure. And if it is a shame for a nation not to know its laws it especially applies to us who have their laws written not in any foreign language but in our own and we can learn at any time what do we need to repel the wrong-doing. Previously quite an obstacle stood in a way, since not everyone could have a Statute due to complicated and long-lasting rewriting, therefore I, in order to assist the need of every citizen and serve to the benefit of the country, resolved to take upon myself, sparing no cost and expenditure, the work of printing and showing the easier and faster path to the knowledge of law for everyone, since from now on everyone who wishes can have the statute in his hands. I plead that Your Graces deign to accept this work from me with gratitude and having your liberties well protected by law make sure that men who are not only good and well versed in these laws of ours would be elected to courts of law and tribunals, but who also are God fearing and virtuous and who do not twist laws for their own welfare and to the detriment of the fellow-men, because of their greed and gratification, but who by proceeding in a straight way would keep a guard of holy truth and justice and would maintain the freedom, which we enjoy, intact. I submit myself with this to the grace and brotherly affection of your Graces. Publication: Published in original Old Ruthenian language in Ivanas Lappo, 1588 met ų Lietuvos statutas II tomas. Tekstas (Kaunas, 1938), p. 15–17 [original Old Ruthenian text]

The Preamble of Constitution of the Republic of Lithuania – that was adopted by the referendum of 25 October 1992 and that came into force on 2 November 1992 The preamble of the Constitution of the Republic of Lithuania, unlike two constitutions of 1922 and 1938 of the first Lithuanian Republic

226  The Lithuanian sources

(1918–1940) makes a particular point that the Lithuanian nation bases the legal foundations of its statehood also on the Lithuanian statutes of the sixteenth century and stresses the continuity between the modern values of democracy and the tradition of rights and liberties of the Grand Duchy. THE LITHUANIAN NATION – having created the State of Lithuania many centuries ago, – having based its legal foundations on the Lithuanian Statutes and the Constitutions of the Republic of Lithuania, – having for centuries staunchly defended its freedom and independence, – having preserved its spirit, native language, writing, and customs, – embodying the innate right of the human being and the Nation to live and create freely in the land of their fathers and forefathers – in the independent State of Lithuania, – fostering national concord in the land of Lithuania, – striving for an open, just, and harmonious civil society and State under the rule of law, by the will of the citizens of the reborn State of Lithuania, adopts and proclaims this CONSTITUTION Publication:

Information on the Alexis de Tocqueville Centre of Political and Legal Thought The Alexis de Tocqueville Centre of Political and Legal Thought is a research unit within the Faculty of Law and Administration at the University of Łódź. The Centre draws from the ideas and intellectual heritage of the author of Democracy in America. This heritage combines two traditions that dominate today, conservatism and liberalism, with the Christian vision of Western identity and the republican ethos of civic participation. It derives political, institutional and legal reflection from the analysis of actual social relations and avoids constructing any a priori, abstract and rationalist models of public life. It views the main values of today such as liberty, equality, democracy, the rule of law, efficiency of state authority, civil society and self-government as being far from harmonious. It leaves room for axiological skepticism, inspires the dissemination of ideas and demands epistemological objectivism. In all its endeavors the Centre treats this heritage as important for both civic attitudes and research projects.


absolutism in Europe 2–4, 10 see also despotic rule academic community, freedom of 18–19 Academy of Cracow 130 Act of Settlememt (1701) xv Act of the Warsaw Confederation (1573) 6, 143 Alexis de Tocqueville Center for Political and Legal Thought xvii, 227 Anabaptists, freedoms of 18 April Laws (1848) 22 Aragon Connection School 41 aristocracy see nobility Armenians, freedoms of 17 Arrow Cross Party 22 Austrian Independence Treaty 23 Austrian-Hungarian compromise (1867) 50 Autumn of Nations (1989) 2, 34 the basis of absolutism in the Renewed Land Code (1627/1628) 124–5 Bill of Rights (1689) xv, xvi Bingham, Sir Thomas xv Bishopric of Olomouc 15 Bocskai, István 49 Bohemia, nobility privileges see Czech lands Bohemian Brethren, freedoms of 17–18 The Bohemian Confederation (1619) 123–4 Bohemian Provincial Diet (1547) 93 Bracton, Henry xiv

Bukovina, battle of (1497) 139 Bull of Aragon 41 burghers, privileges of 15 Burke, Edmund 33–4 Camp Sejm 134 Case of Proclamations xiv censorship 26 Central European constitutional identity 31–6 Charter on Religious Freedoms (1609) 6 Claim of Right (1689) xvi clergy, Catholic Church, privileges of 14–15 Coke, Sir Edward xiv Compacts of Basel (1436) 6, 91, 113–15 Congress of Vienna (1815) 26, 27, 28 constitution, British xvi Constitution of Nivil (1505) 157–8 Constitution of Olmutz 22 Constitution adopted by Warsaw Seym (1776) 162–3 constitutions 32 Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (Council of Europe) xv Convocational Sejm (1764) 184 Corona regni Bohemiae 87 Coronation Sejm 186 Cossacks 13–14, 19 Council of Basel 6, 89

Index  229

counties 50 County Act (1870) 50 Cowell, John xiv crusades 39, 42 Czech lands 19th century 108–10 aristocracy see nobility constitutional autonomy 108–10 Czech State/Republic 108–10, 125–6 despotic rule 23–5 election of sovereign 79–83 estate system 94–104 festal charters (Charles IV) 87–8 land community 83–94 liberties of the estates 83–94 legal sources of 112–26 legislation 94–104 middle ages 79–83 nobility army duty 86 Catholic 91 holding of office 86–7 property rights 86 taxation 86 Olomouc bishopric privileges 104–8 Preamble to the Constitution of the Czech Republic (1992) 125–6 privileges see Privileges Provincial Codes see Provincial Codes Provincial Diets see Provincial Diets provincial law codification 94–104 uprising of the Estates 92–3, 96, 100, 101–2, 108 De civitate Dei 44 Declaration of the Rights of Man and the Citizen (France) 145 decree of Louis I (1351) 63–4 despotic rule Czech lands 23–5 Hungary 20–3 Lithuania 29–31 Poland 25–9 Dicey, A.V. xv Diploma Leopoldinum 45 Divéky 42 Dual Austro-Hungarian monarchy 22, 24, 28 Duchy of Transylvania 20 Duchy of Warsaw 26

Eden, Sir Anthony xvi–xvii Edict of Torda (1568) 6 Edict of Wielun 135 Encyklopedia Staropolska 136 English Connection School 41 Estate of Prelates 15 estates liberties of (Czech lands) 83–94 privileges 4–6 European monarchs, limited powers of 4–6 European political system, 19th century 2–4 foreign settlers, legal status of 16 Four Articles of Prague (1420) 114 Free City of Cracow 28 freedom archipelago of 12–19 of conscience 143 as effective power 11–12 as non-interference 11 non-nobles 12 as pursuit of civic virtues 12 as status 11 under the law 10–12 Freedoms of Estates of Ferdinand I (1526) 118–19 Fundamental Law of Hungary (2011) see Hungary GDL see Grand Duchy of Lithuania General Confederation of Warsaw 158–9 General Sejm 7, 139 Golden Bull of Emperor Charles IV (1356) 83, 88 Hungarian (1156) 41 Hungarian (1202) 41 Hungarian (1222) 6, 7, 8, 39–43, 45, 48, 52–9, 59–61, 136 Hungarian (1224) 61–3 Hungarian (1231) 15, 43, 59 Hungarian (1232) 45 Hungarian (1351) xiv, 37–43 of Sicily (1212) 8, 82, 87–8, 112 golden freedom 143 Government of Wales Act (2006) xvi Grand Duchy of Lithuania adoption of Christianity 170, 175, 177 Constitution (1791) 188–90 Constitution (1922) 190 Constitution (1938) 190

230 Index

Constitution (1992) 190, 226 Council of the Lords 181 court of appeal 186 despotic rule 29–31 early political system 171 electoral monarchy 181–8, 182 emergence of Lithuanian state 167, 168–71 end of Commonwealth 188–90 estate privileges 179–81 Gediminids ruling dynasty 171–4 Grand Ducal image 172 history of 168–71 itinerant kings 176 Jagiellonians 174–81, 185 Lithuanian sources 191–226 Lithuanian Statute (First) (1529) Section One 209–19 Section Three 219–24 Lithuanian Statute (Third) (1588) 224–6 Magdeburgian Law 175 nobility and democracy 181–8 rights/privileges 175–81 structure of 171 and taxation 186 office holding 176–7 peace treaty (1219) 170 privileges see Privileges provincial dukes 170–1 Union of Kreva (Krewo) 174–81 Union of Lublin (1569) 7, 128, 181–8 Great Duchy of Poznan 27 Great Privilege of Freedoms of Sigismund of Luxembourg (1436) 90–1, 115–16 Great Sejm (1788–1792) 25, 141, 144 Grodzkie Articles 137 Habeas Corpus Act (1679) 136 Hartknoch, Jan Krzysztof 19 Henrician Articles (1573) 9, 140–3, 159–60, 182–3 Hoffman, Boromeo 136 Holt, J.C. 2 House of Deputies 7 Human Rights Act (1998) xvi

Hungarian War of Independence (1848–1849) 50 Hungary 19th century political system 3, 6 Act I (1608) 65 Act II (1849) 50 Act III (1827) 49 Act III (1848) 50 Act IV (1687) 45, 49, 50 Act IV (1869) 50 Act IX (1222) 47 Act X (1790) 49, 50 Act X (1791) 46, 50 Act XXXI (1222) 49 decree, una eademque libertas nobelium (1351) 63–4 despotic rule 20–3 ethos of liberty 47–51 feudal system 38 Fundamental Law of Hungary (2011) 51, 77–8 historic constitution 51 inner emigration 50 Ius resistendi 43–7 liberty of Saxons (1224) 61–3 nobility, rights and privileges 47–8, 63–4 privileges of freedom of citizens (1224) 61, 61–3 resistance, right of 44, 48, 49 Royal Decree (1608) Articles 1–23 67–77 prior to coronation 66–7 Soviet period 22–3 Tripartitum see Tripartitum Hussite question 6 imperium mixtum 9 inaugural diplomas of King John of Luxembourg (1310–1311) 112–13 inauguration diplomas 84, 112–13 internal colonisation 3–4 Investiture Wars 44 inviolability of the person 6, 26, 27, 133–7 of property/assets 7, 26, 27, 133–7 ius commune 138 Ius resistendi 43–7

Index  231

Jefferson, Thomas 33–5 Jews, freedoms of 16–17 John, King, and Magna Carta xii–xiv kwarciane army 141 Landfrieden 97, 107, 136 Law of the Mutual Assurance of the Two Nations 189 Law on Royal Towns (1791) 145 The Letter of Disposal of Royal Chamber property (1499) 117 The Letter of Majesty on religious freedom (1609) 121–2 The Letter of Majesty on the unity of the Czech crown (1510) 118 lex fundamentalis of Ferdinand I (1526) 118–19 the liberties of Estates in the Kingdom of Bohemia (1547) 120–1 the liberty of the Land Court in the Margraviate of Moravia (1545) 119–20 the liberty of the Margraviate of Morovia (15th century) 116–17 limited government 46 Lithuanian Statute (First) (1529) Section One 209–19 Section Three 219–24 Lithuanian Statute (Third) (1588) 224–6 Locke, John 43 Lowmianski, Henryk 169 Magdeburgian Law 175 Magna Carta courts’ independence xiii–xiv creation of xii–xiv fair punishments xiii feudal rights xiii fundamental liberties xiii, 2 justice, due process xiii, 1–2, 135 king as subject to law xiv and later generations xiv political grievances xiii Magna Carta of León 136 Magna Carta Libertatem 135–6 Marczali, Henrik 41 military service 13 mixed/republican government 9–10

Mohács, battle of (1526) 20, 34 Molnar, Attila xiv Montesquieu, Charles 31 Moravia, nobility privileges see Czech lands Moravian Estates 98–100, 103 Moravian Land Code 119–20 Nihil Novi Statute (1505) 7 nobility 12–14 and counties 50 personal liberties 38, 40, 42–3, 45, 64–5 rights and privileges 63–4, 79–87, 147–66, 175–6 see also Czech lands; Grand Duchy of Lithuania; Hungary; Poland; Privileges noble democracy 138–43 noble-national resistance 46 Northern Ireland Act (1998) xvi old Poland see Poland On the Laws and Customs of England xiv Operation Margarethe 22 original sin 44 Pacta Conventa 141–2, 160–1, 182–3 Parliament Act (1911) xvi passive resistance 50 peasant counties 13 Pereyaslav Agreement (1654) 19 personal liberties, nobility 38, 40, 42–3, 45, 47–8 Petition of Right (1628) xiv–xv, xvi Pilsudski, Marshal Józef 28 Poland Cardinal Law adopted by the Seym (1768) 161–2 Constitution (1791) 143–6 Constitution adopted by Warsaw Seym (1776) 162–3 Crown Tribunal 134 despotic rule 25–9 freedom of conscience 143 Government Statute (1791) 163–5 Henrician Articles (1573) 140–3, 159–60 inviolability of the person 133–7 inviolability of property 133–7 ius commune 138

232 Index

nobility rights land privileges 147–55 sources on evolution of 147–66 nobility taxation 132–7 noble democracy 138–40 Preamble to the Constitution of the Republic of Poland (1997) 166 privileges 127–66 legal characteristics 129–32 nationwide/general 132–7 privileges/liberties and constitutional foundations 140–3 separation of power 134 Supreme Court 134 Police Commission (1792) 146 Polish-Lithuanian Commonwealth 19th century political system 3, 6, 9, 10, 19, 25–6 bishops 15 nobility 13–14 Polish-Russian War (1830–1831) 27 power-sharing, monarch/nobility 9 Preamble to the Constitution of the Czech Republic (1992) 125–6 Preamble of the Constitution of the Republic of Lithuania (1992) 226 Preamble to the Constitution of the Republic of Poland (1997) 166 Premyslid family 79–81, 83, 84 Privilege of Buda 128, 132–7 Privilege of Cienia 130 Privilege of Czerwinsk 7, 135 Privilege of the Grand Duke Aleksander Jagiellonczyk to the Lithuanian estates (1492) 199–208 Privilege of the Grand Duke of Lithuania Sigismund to the Lithuanian nobility (1434) 192–4 Privilege of Jedlna 135 Privilege of Kazimierz Jagiellonczyk to the Lithuanian estates (1457) 194–9 Privilege of the King of Poland and the Grand Duke of Lithuania Jogaila to the Lithuanian nobility (1387) 191–2 Privilege of Kosice 128, 129, 132–7 Privilege of Lutomysl 130 Privilege of Malopolska 138 Privilege of Mielnik 140

Privilege of Neminem captivabimus 136 Privilege of Nieszawa 7, 128, 138, 139 Privilege of Nihil Novi 7 Privilege of Wielkopolska 138 privileges provincial 129–30 territorial 131 see also Czech lands; Hungary; Poland Privileges of freedom of citizens (1224) 61–3 property rights Czech nobility 86 inviolability of 7, 26, 27, 133–7 Provincial Codes (1487) 95 (1497) 95 (1500) 95 (1516) 98 (1530) 96 (1535) 98, 99, 106 (1545) 98 (1549) 96 (1564) 96 (1604) 106 Provincial Court of Justice (Czech lands) 85–6, 93, 95, 98, 106 Provincial Diets (1421) 90 (1435) 90, 91 (1500) 95 (1547) 93, 96 (1549) 96 (1582) 106 (1612) 108 (1628) 103 Provincial and Regional (Shire) Diet 96 Provisions of Oxford (1258) xvi Raz, Joseph 31 Reformation 6, 45 Relief of Vienna 127 religious/ethnic minorities, freedoms of 16–18 Renewed Provincial Codes 102, 104 Representation of the People Act (1918) xvi Republic of Two Nations 128 resistance, right of 8–9, 44, 48, 49 Resolution of the Bohemian Provincial Diet 120–1 Ribbentrop-Molotov pact (1939) 28, 30, 168

Index  233

Riga 169 right of association 26 rights and privileges, nobility 47–8 Royal Decree (1608) 66–77 royal election 48 Rule of Law doctrine xv Sachs, Jan 19 Scotland Act (1998) xvi The Second Apology of Bohemian Estates (1618) 122–3 Second Lithuanian Statute (1566) 7 Second Treatise on Government 43 Second World War 28–9, 30 Sejms 9 Soviet domination 28–9 Soviet Union, fall of 2, 34 state politics, participation in 7–8 Statute of Nieszawa (1454) 155–7 Stuart Monarchy and Parliament xiv–xv Sword Brothers order 169, 170 Tatars, legal status of 18 taxation immunity from 7 of nobility 86, 132–7, 186 privileges 26 Teutonic Knights 39, 138, 169

Thirteen Years War 138 Tocqueville, Alexis de 2–4 Tovacov Lawbook 97–9, 116 Treaty of Hadyach 13 Treaty of Trianon 22 Treaty of Vienna 4 Tripartium 6, 7, 8, 38, 45, 47–9, 64–5 UK Magna Carta Trust xvi Ulaszlo II, King 47 unfreedom, experience of 19–31 Union of Kreva (Krewo) 174–81 Union of Lublin (1569) 7, 128, 181–8 Universal Declaration of Human Rights (1948) (United Nations) xv Uruszczak, Waclaw 128 value of money 7 Vienna, battle of (1683) 21 Vienna peace-treaty (1606) 65–77 Vladislaus Provincial Code 92–3, 99 Warcki Statute 135, 136 Warsaw Uprisings 29 Werboczy, István 6, 7, 38, 45, 47–8 White Mountain, battle of (1620) 24, 34, 98, 99, 101–2 Wolan, Andrzej 187