Making Sense of Constitutional Monarchism in Post-Napoleonic France and Germany

M. Prutsch

• Publisher: Palgrave Macmillan
• Year: 2012
• ISBN:
  9781137291653
• Topic: History
• Subtopic: European History
• Index: History

Focusing on the genesis of 'constitutional monarchism' in the context of the French Restoration and its favourable reception in post-Napoleonic Germany, this study highlights the potential and limitations of a daring attempt to improve traditional forms of monarchical legitimacy by means of a modern representative constitution.

1

Introduction

1.1 Subject and focus of research

The term ‘constitution’, nowadays commonplace in political language with all its shades of meaning, dates back primarily to the Ancient World. Until the beginning of seventeenth century, the term remained characterised by a rather narrow and non-normative impetus. In the course of the ongoing political changes in England during the seventeenth century, however, a crucial semantic change took place. It was the Glorious Revolution of 1688/1689 which speeded up the transformation process of ‘constitution’ into a normative and ideological notion, indicating specific immanent features. Increasingly, the criteria of right and wrong, just and unjust were established, and discourse on ‘constitution’ became a point of conflict. The era of ‘modern constitutionalism’ had finally arrived.

In taking up the traditional rhetoric of mixed government, arguing for a combination of monarchical, aristocratic and popular elements of rule, the ‘English Constitution’ became the point of reference for eighteenth century political philosophy, not to say a ‘sacred cow’. However, high regard for the English system of liberty was not only limited to the classical ideal of mixed government. In the course of the century, the actual practice of the British political system was underpinned by political theories stressing the ‘balance’ and ‘separation of powers’, namely the legislature, the executive and the judiciary, with Montesquieu’s De l’esprit des lois assuming a key role.¹

Parallel to songs of praise for the English Constitution, however, a new political language developed: that of popular sovereignty and republicanism. These concepts prepared the way for revolutionising constitutional thought as practised during the American and French Revolution.² In the course of these upheavals, which can indeed be classed as constitutional revolutions, driven by the desire to establish a ‘better’ political order, the ideas and benchmarks of ‘constitution’ were fundamentally changed. The notion that a constitution had to be a written document above normal legislation, and that this document had to be accompanied by guarantees of certain unalienable fundamental rights of the citizens gradually gained acceptance. Moreover, ‘constitution’ became popularised in two different ways: on the one hand, it became a legal document familiar to all and representing a secularised creed, to which, at least in theory, everyone could refer.³ Likewise, political systems were ‘democratised’ in that more people were involved in the political process inasmuch as ‘the will of the people’ or ‘the nation’ became the source of political power.

The most influential theoretical contribution in this regard was without a doubt Abbé Sieyès’ Qu’ est-ce que le Tiers État?, assuming the primordial authority of the nation, which was understood as a monolithic body, and outlining the idea of the nation as the pouvoir constituant.⁴ Sieyès’ concept, following on from Montesquieu’s idea that the legislative body had to be built upon représentation and not identité, as it did for Rousseau in his concept of the ‘general will’, was approved by the leading figures of the French Revolution in 1789 and became part of the first written French constitution in 1791. This constitution shattered the traditional notion of monarchical sovereignty and deprived the king of essential powers, but did at least preserve the monarchy as such. In the course of the Revolution, however, political and constitutional concepts became more radicalised. Argumentation in terms of ‘political effectiveness’ and ‘reign of virtue’ increasingly replaced the rhetoric of ‘law’, ‘legitimacy’ and ‘checks and balances’, resulting not least in authoritarian tendencies and culminating in Napoleonic constitutionalism.

The American and French Revolution saw not only broad constitutional innovations, but also powered sophisticated counter concepts. These concepts primarily highlighted the incalculability of revolutionary change and attending immanent dangers, which were contrasted with the positive principles of ‘continuity’ and ‘tradition’. Political conservatism was nevertheless far from uniform and either had to be formulated moderately, as Edmund Burke did, or in a more radical, reactionary form. Whereas Burke’s liberal conservatism emphasised the blessings of order, legal government and convention, therefore judging incremental reform as the only suitable form of political evolution, ‘autocratic conservatism’ as propagated by de Maistre and de Bonald praised the political and social order of the Ancien Régime, monarchical authority and religious-teleological arguments.

With this in mind, constitutional theory and thinking at the beginning of the nineteenth century can be described as being both fragmented and ambivalent. The spectrum of constitutional concepts that had evolved or even been put into practice ranged from ‘ultra-revolutionary’ to ‘ultra-reactionary’ and from ‘radical-democratic’ to ‘radical-autocratic’, and a crucial question was whether these contradictory standpoints could be united in some way or other.

The need for reconciliation intensified when French hegemony in Europe came to an end. Even though the allied powers declared a victory over the Revolution and its principles in 1814, it was impossible to ignore the relevance of the revolutionary heritage in general and that of ‘constitution’ in particular. ‘The French Revolution will travel around the world’, Mirabeau had once memorably declared. Indeed, the French Revolution as a pan-European phenomenon had a lasting effect even after its immediate energy had subsided. Perhaps the main challenge of the time was how to reconcile European monarchs’ claim to preserve their sovereignty with post-revolutionary societies’ expectations of both a constitutional state and maintaining the political innovations generated by the Revolution and the Napoleonic Regime: innovations which had been expressed but not necessarily implemented in Napoleonic Europe. It was widely felt that the Spanish approach of rigid neo-absolutism was not a long-term solution.⁵ In comparison, the example of the French Restoration under Louis XVIII, who was willing to provide constitutional guarantees to achieve a lasting settlement, seemed a much more appropriate and reasonable solution.

It therefore comes as no surprise that the Bourbon Restoration project in 1814 was, as the Revolution itself had been, an act of European importance; an act which might now serve as a key to overcoming the revolutionary epoch permanently. The Charte constitutionnelle (‘Constitutional Charter’) played a pivotal role in this context: it was the foundation stone of the new regime and put forward possible solutions to reconciling the diverging aspirations of rulers and post-revolutionary society. Indeed, the new monarchical-constitutional system made the monarch the dominant political power and declared him the sole holder of the pouvoir constituant, yet at the same time restricted the sovereign by a written constitution providing civil liberties and allowing citizens to partake in the political and legislative process. For this reason, the ‘monarchical constitutionalism’ of the French Charte, which might justifiably also be termed ‘constitutional monarchism’,⁶ has frequently been considered to be a model for post-Napoleonic Europe and Germany⁷ in particular.

Indeed, there are good reasons to suppose that the Charte played a decisive ‘model-role’. At the end of French supremacy, political expectations were running high in the German states with the governments of these states seeking to suppress any national movement through top-down policies. However, the success of any such policies depended upon the governments’ ability to ‘trade’ constitutional guarantees, or at least promises of the same, with the refusal to make concessions to the national movement. The German Federal Act, adopted 8 June 1815, thus pledged landständische constitutions for all the member states of the German Confederation.⁸ The Federal Act went hand in hand with the existing desire to set up constitutions in the federal states, particularly in Southern Germany, namely Bavaria, Württemberg, Baden and Hesse-Darmstadt. Created out of formerly independent territories and free cities, the task of administrative reform had already been undertaken during the Confederation of the Rhine. However, political integration within these ‘state absolutistic’⁹ states still needed to be addressed. The promulgation of constitutions to engender patriotism and weld together different social groups was thus an obvious solution for the ruling class.

The situation of the German rulers was akin to that of Louis XVIII in France following his return from exile, in that their claim to full sovereignty had to be reconciled with their subjects’ aspirations for legal guarantees and political participation. Consequently, ‘constitutional monarchism’ as expressed in the Charte constitutionnelle seemed to be the most natural choice: a representative constitutional system which would at the same time retain many of the monarch’s traditional rights.¹⁰ However, the idea of the Charte as a ‘model’ poses a number of questions:

• How innovative was this model compared to prior constitutions?

• What de facto role and function did the Charte have in constitution-making processes?

• Who were the agents of constitutional transfer or reception?

• To what extent were the constitutional realities in France and the Southern German states comparable?

In actual fact, the Charte was not the only tangible model at that time. The English¹¹ common law constitutional system which had inspired Montesquieu’s work, the Spanish Cádiz Constitution of 1812, or the Polish Constitution of 1815 represented other possible points of reference. Furthermore, the American Constitution of 1787 and the first French Constitution of 1791, even though built upon the principle of the sovereignty of the people, were among the ‘prototypes’ of the period, and it was not out of the question that they could be inspirational with regard to the concrete form of certain political institutions or in defining fundamental citizens’ rights.

Moreover, the power-political, socio-economic and political-cultural circumstances were unique when the Bourbons returned to power in 1814. France had been defeated at the military level and was on the verge of economic collapse. The reason for changing the existing political system was chiefly because Napoleon had brought discredit on his regime by refusing to make peace despite repeated attempts by the Allies and because he had placed painful burdens on the country. At the same time, the Restoration regime was confronted with a society torn apart by reciprocal distrust; the most obvious being between those who sought to bring back the order of the Ancien Régime and those who promoted a society based on the principles of the Revolution. Furthermore, with the relatively long and, indeed, eventful history of written constitutions in France, any new constitutional project would automatically be compared with everything that had gone before.

These factors were not present, or at least not to the same extent, in the Southern German states. They had their own particular challenges to contend with, chiefly achieving political and financial consolidation,¹² and adapting the existing absolutistic regime to the demands of the time. One may therefore surmise that the French ‘model’ of constitutionalisation could not be transferred one-to-one to Southern Germany. Linked with the argument that there were differing contexts is the fact that the Southern German states had their own pre-constitutional experiences and traditions of representation which had to be considered, especially in how far and in what way the former Landstände (‘Assemblies of Estates’) should be involved in a new system. This factor of ‘heritage’ became increasingly important amid an atmosphere of growing nationalism and deepening reservations against foreign influences.

Taking the aforesaid into account, the objectives of this enquiry are essentially concerned with promoting a clearer understanding of the course, form and intensity of constitutional transfer by analysing the transnational impact (or perhaps ‘non-impact’) of Charte- constitutionalism on what is generally referred to as ‘Southern German constitutionalism’. Even though the Southern German states weighed lightly in the European balance of power, their history is singularly interesting, not least because they were the first territorial states in Germany which were granted a constitution after 1814. Developments there thus played a pivotal role for further constitutionalisation and other political processes throughout Germany during the nineteenth century.

While a study encompassing all the Southern German states would be desirable, this enquiry does not set out to fulfil such a task. What it does do is to take an in-depth look at a limited number of research cases by focusing on the two examples of Bavaria and Baden, which became, so to speak, the ‘forerunners of forerunners’. Although Württemberg, and sometimes Hesse-Darmstadt, are also considered to be an ‘integral part’ of early Southern German constitutionalism, they will not be dealt with in this study. The reason for this is not least that Württemberg is by far the best researched of all the Southern German states due to the conflict-ridden nature of its constitutionalisation process.¹³ It is against this backdrop that the singularity of the Württemberg case has, at least partially, been acknowledged in research to date. This singularity is most obviously manifest in that the Constitution of 1819, as too the Constitution of Hesse-Darmstadt one year later,¹⁴ was not imposed by the crown as the Bavarian and Badenese constitutional documents of 1818 had been, but agreed upon between monarch and the Landstände. One may not assume that such obvious differences in the genesis of the constitutions necessarily imply that foreign influence and the Charte in particular played a fundamentally diverse role. Such differences do nevertheless remind us of the danger of blanket statements and a generalising approach to history. Hence, the choice of case studies also hopes to examine whether and to what extent considering the constitutionalisation of Bavaria and Baden as basically identical reflects historical reality. This monograph should, therefore, not be regarded as a study of the phenomenon of Southern German constitutionalism as a whole, but as a contribution towards a more sophisticated assessment of the manifold nature of its component parts.

We set out to follow the tradition of enquiry on ‘intellectual exchange’¹⁵ by asking whether and how constitutional ideas and institutions travel beyond language and culture, and by investigating the ways individuals adopt and reshape existing notions and concepts, perhaps to create something new. While this enquiry examines the structure and extent of German adoption of French and/or other foreign constitutional models, it does not confine itself to the element of ‘transfer’. It combines the ‘history of ideas’ with ‘political history’, and considers constitutional concepts and public debate together with the ‘political machinery’ and Realpolitik. In short, the main objectives are to:

I. examine the genesis and the essential characteristics of post-Napoleonic ‘constitutional monarchism’;

II. ascertain the meaning and exemplary effect of the Charte constitutionnelle for early (Southe...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Diagram
• Acknowledgements
• 1 Introduction
• 2 The Charte and Constitutional Monarchism
• 3 Constitutional Discourse and Political Reality in Post-Napoleonic Germany
• 4 Transfer and Reception: Bavaria and Baden as Case Studies
• 5 Constitutional Practice: A Comparison
• 6 Constitutional Monarchism: Reflections in Political Thought
• 7 Results
• Notes
• Bibliography
• Index