Markus J. Prutsch
The Legal “Model” of the Charte constitutionnelle
and the 1818 Baden Constitution
Introduction
All European states had to face the challenges of the legacies of the revolution after the collapse of the Napoleonic order – even though in different
forms and measures. Perhaps the main challenge of the time was how to
reconcile Europe’s monarchs’ claim to preserve their sovereignty with postrevolutionary societies’ expectations of both a constitutional state and the
conservation of the political innovations brought about by the revolution
and the Napoleonic Regime. The common thought was that the Spanish
case of rigid neo-absolutism was not a suitable solution in the longer-term
perspective. 1 In comparison, the example of the French Restoration under
Louis XVIII in his ambition to achieve a lasting settlement by offering constitutional guarantees seemed a much more reasonable solution.
Therefore, it is no surprise that the Restoration of the Bourbons in 1814
became an act of European importance– an act, which might serve as a key
for overcoming the revolutionary epoch durably. The Charte constitutionnelle2
had a special role in this context: it formed the foundation of the new regime and showed how the diverging aspirations of rulers and postrevolutionary society could be reconciled. All over Europe the claim of
monarchs to full sovereignty had to be brought together with their subjects’
aspirations for legal guarantees and participation in the legislative process.
Consequently, “monarchical constitutionalism”3 as expressed in the Charte
imposed itself as a model: as a representative constitutional system which
simultaneously retained many of the monarch’s traditional rights.
1
See, e.g., Talleyrand’s Rapport fait au Roi pendant son voyage de Gand à Paris (June 1815). In: Pallain, Georges (Ed.): Correspondance inédite du Prince de Talleyrand et du Roi Louis XVIII.
Pendant le Congrès de Vienne. Publiée sur les manuscrits conservés au dépôt des Affaires
étrangères, avec préface, éclaircissements et notes par M. G. Pallain. Paris [etc.] 1881, pp. 436484.
2
Charte constitutionnelle (4 June 1814). In: Bulletin des lois du Royaume de France. Paris 1814,
Tome premier, N.°133, pp. 197-207.
3
In general terms, “monarchical constitutionalism” can be defined as a political system with a
dominant monarch, whose executive power however is restricted by a constitution.
1
However, despite the constitution’s potential of becoming a “model” for
Europe, it has to be asked what de facto this model meant. In actual fact, the
Charte was not the only conceivable “model” of the time: above all the
English 4 common law based constitutional system, which had already inspired Montesquieu in his landmark work De l’Esprit des Lois, 5 was seen as a
“prototype” of a functioning and settled political system. However, the
Spanish Cadiz-constitution of 1812 also represented another possible point
of reference. Furthermore, the American constitution of 1787 and the first
French constitution of 1791 – even though built upon the revolutionary
principle of the sovereignty of the people – were also present in contemporary political debates and had the potential to serve as an inspiration, at
least with regard to the concrete elaboration of the political institutions or
the definition of fundamental laws for the citizens. Moreover, the powerpolitical, but also political-cultural and socio-economic, framework was
very specific in every single European country, as was the number, character and practical importance of its own legal traditions. This factor of one’s
“own heritage”, either real or imagined, was to become even more important in the then atmosphere of growing nationalism. Consequently, one
may surmise with good reason that the French “model” of constitutionalisation was not to be transferred on a one-to-one basis to the rest of
Europe.
Thus, the basic aim of this article is to highlight the actual “modeleffect” of the Charte constitutionnelle as a prototype of monarchical constitutionalism by focusing on one practical example, namely the Baden constitution of 1818, which is generally seen as a direct “successor” of the French
1814-constitution.6
4
In this paper, the terms English and British will be used synonymously regarding constitutional matters.
5
In: Montesquieu, Charles-Louis de Secondat Baron de: Oeuvres complètes. 1. Esprit des lois,
lettres persanes, considérations [ed. by M. André Masson]. Paris 1950 [1758; FE 1748] (FE
stands for “first edition”).
6
This estimate can be considered to be commonplace, especially in recent German literature.
See, e.g.: Kirsch, Martin: Monarch und Parlament im 19. Jahrhundert. Der monarchische
Konstitutionalismus als europäischer Verfassungstyp – Frankreich im Vergleich. Göttingen
1999, especially pp. 322-329; Fehrenbach, Elisabeth: Bürokratische Reform und gesellschaftlicher Wandel. Die badische Verfassung von 1818. In: Die Badische Verfassung von 1818. Südwestdeutschland auf dem Weg zur Demokratie, ed. by Bräunche, Ernst Otto & Thomas
Schnabel. Ubstadt-Weiher 1996, pp. 13-24, explicitly p. 13; Schulze, Carola: Frühkonstitutionalismus in Deutschland. Baden-Baden 2002, p. 63; Brandt, Hartwig: Europa 1815-1850. Reaktion – Konstitution – Revolution. Stuttgart 2002, p. 142; Brandt, Hartwig: Der lange Weg in
To start with, however, the comparability of the constitutional formation
conditions and processes in France and Baden may be taken into account.
Genesis of the Constitution:
France and Baden in Comparison
In short, it can be said that the framework for the constitutionalisation in
post Napoleonic France and Baden as well as the concrete genesis of their
constitutions differed considerably. One might argue that in both cases the
constitution was motivated by the need for political stabilization. Apart
from this general similarity, however, it is differences rather than parallels
which predominate. The most obvious difference concerns the protagonists and the time it took to work out the details of the constitution: The
Charte was conceptualized and drawn up within weeks by a constitutional
commission under the direct involvement of the monarch, thus reflecting
the unsettled political situation after the collapse of the Napoleonic order
and the undecided power struggle between the Senate and the returned
Bourbon dynasty. In contrast, the Baden constitution of 1818, which carried far less the trademark of the monarch, did in fact represent the work
of one single man, Carl Friedrich Nebenius, and marked the end of a longstanding political debate with several interruptions, changing priorities and
a number of different commissions and constitutional drafts. All this refers
to another and perhaps the most important difference: the French constitution of 1814 was an act of “revolutionary constitutionalisation”, which
aimed at returning to pre-Revolutionary conditions and to qualify the constitutional experiences since 1789 by trying to incorporate the crucial
achievements of this epoch at the same time. To a certain extent, the Charte
constitutionnelle therefore represented a “constitutional coup”, facilitated by
war-weariness and the existing economic problems which arose after the
lost conflict. In Baden, economic factors also played an important if not
the decisive role, but in another context: here the primary target of the
leading political class and above all the – till then absolute – ruler was to
consolidate the heterogeneous country, which had expanded enormously in
the course of the Napoleonic wars, without restricting the domestic power
die demokratische Moderne. Deutsche Verfassungsgeschichte von 1800 bis 1945. Darmstadt
1998, p. 68f.
3
of the monarch and the government. Therefore, administrative reforms
rather than constitutional guarantees seemed more appropriate. Only growing financial struggles and a series of other political and dynastical problems set the constitutional debate in motion in the second half of the 1800s
and kept it going. That is why up until the proclamation of the constitution
in 1818, the re-active character of the whole constitutionalisation process in
Baden and its “evolutionary” nature, subject to a high amount of pragmatism, remained undeniable. The dissimilarity of the French and Baden development can also be demonstrated in other respects, e.g. the foreign political dimension. Whereas in France the installation of the Charte only became possible by the intervention of foreign powers, which favoured
Louis’ work as a medium to stabilize the situation in the country, in Baden
the constitution was just meant as a tool to defend sovereignty and to prevent external interventions on the part of the German Confederation, Bavaria and Austria. From that point of view the foreign political motivations
for the constitutionalisation process in Baden – as in the rest of the Southern German states – resemble much more the formation of the American
constitutions post 1776 as well as the Spanish Cadiz-constitution of 1812
and the Norwegian constitution of 1814, which were meant as a supportive
element for the new state sovereignty.
In this sense, given the varying nature of prerequisites and the practical
course of constitutionalisation, the Charte constitutionnelle of Louis XVIII
cannot be considered a “model” for the 1818 Baden constitution. In view
of the different geneses of the two constitutions, it is all the more astonishing, that the Charte is widely seen as a prototype for Southern German constitutionalism in particular and European constitutionalism in general. 7
These points refer to the text and the concrete regulations of the constitution and the question as to how far the Baden constitution was influenced
by the Charte at least with regard to its normative content.
The Baden Constitution of 1818: Models and Influences
In Nebenius’ papers as the main source on the genesis of the Baden constitution there are only a few direct remarks on the sources he consulted for
drawing up the Baden constitution and possible models he made use of.
7
See Sellin, Volker: Die geraubte Revolution. Der Sturz Napoleons und die Restauration in
Europa. Göttingen 2001, p 320f.
The most explicit reference is to the “form” of the Polish constitution of
1815, which Nebenius considered to be the personal work of Tsar Alexander I, who was at the same time the most important advocate of Baden interests within the great European powers: “Die Gesinnungen des Kaisers
waren schon früher bekannt und ich durfte voraussetzen, dass ihm wenigstens die Form unserer Urkunde […] entsprechen würde, da ich die Form
der polnischen Constitution gewählt hatte, die der Kaiser selbst, wie man
glaubte, zum Verfasser hatte.”8
And indeed: a textual comparison of the Baden constitution and the Polish constitution of 1815 shows certain similarities, not only with regard to
the general structure of the constitution, but also concerning the wording
of several articles. 9 However, besides the Polish constitution there are also
parallels with the French Charte of 1814, 10 which itself had been an essential
point of reference for the persons involved in the formation of the Polish
constitution.11 Therefore, one may surmise with good reason a “mediated”
transfer from France to Poland and from there to Baden. Perhaps the
clearest example for this influence is determining monarchical inviolability.
In the French Charte, the corresponding expression in article 13 is: “La personne du Roi est inviolable et sacrée.” This expression had been adopted in
the Polish constitution identically by declaring that Ҥ 36. The person of
the King is inviolable and sacred”, and also appears in the Baden constitution: “§ 6. Seine [that of the Grand Duke; MJP] Person ist heilig und unverletzlich.” Another indication for such a transfer are the regulations for the
convocation and dissolving of the parliamentary chambers. In the French
case it is codified in article 50 that “Le Roi convoque chaque année les
deux chambers : il les prorogue et peut dissoudre celle des députés des départments.” In the Polish constitution (§ 87) it is similarly written that “The
King alone can summon, adjourn and dissolve the Sejm [traditional name
of the Polish parliament; MJP].” The Baden constitution again determines
8
In: Weech, Friedrich von: Geschichte der badischen Verfassung nach amtlichen Quellen.
Karlsruhe 1868, p. 98. By referring to the Polish constitution Nebenius obviously did not only
hope to gain the support of Tsar Alexander himself, but also of Grand Duke Karl, for whom
the acceptance of a draft following the form of a constitution possibly written, but in any case
promulgated, by his own brother-in-law was expected to be easier than that of another model.
9
The Polish constitution of 27 November 1815 in: Dziennik Praw Królestwa Polskiego. Warschau 1815 Vol. 1, pp. 1-103.
10
However, Nebenius himself did not explicitly mention the Charte.
11
The Polish constitution is also entitled Charte constitutionnelle du royaume de Pologne.
5
that “§ 42. Der Großherzog ruft die Stände zusammen, vertagt sie und
kann sie auflösen.”
A number of other, without doubt interesting, examples showing explicit
textual takeovers could be mentioned, 12 but the exhaustive demonstration
of coherences between the Baden Constitution and certain “models” alone
is only of limited use to determine the practical importance of foreign constitutional ideas and texts. Not only is the sense, intention and interpretation of certain constitutional arrangements, even if they are similar in wording, different from country to country, but also the changes made in the
course of the translation process. It can also be assumed that by adopting a
certain constitutional system, such as the constitutional monarchy, the take
over of certain constitutional settings and institutions were inseparably
linked. Or, to put it another way: as soon as the decision to set up a constitutional monarchy was made in Baden, the implementation of a set of crucial institutions representing the “hard core” of this “constitutional type”
was immanent. This observation seems to be self-evident, but is often neglected in comparative law studies, which jump to conclusions that there
must have been a direct transfer between two constitutions only by showing that the same institutions can be found in both cases, but ignoring that
these arrangements are of a particular nature. Thus, it is interesting to ask,
why the type of constitutional monarchy in its specific variation of “monarchical constitutionalism” was introduced in Baden, what the “raw material” of Baden constitutionalism, its origins and fundaments are, and to
what extent and why the Baden constitution differs from other constitutions of the same type.
An interesting remark made by Nebenius in his report on the presentation of the constitutional draft to the constitutional commission of 1818
underlines the usefulness of such an approach. There, Nebenius stresses
the fact that in order to defend his draft in the commission he primarily
made reference to “abweichende Bestimmungen, welche anderwärts bestanden oder die noch bestehenden landständischen Verfassungen oder
vorliegende und in Berathung stehenden Entwürfe darboten”, which he
justified with the “Verschiedenheit der staatlichen, volkswirthschaftlichen
und socialen Verhältnisse.”13 This short quotation, illustrating that Neben12
For a detailed comparative analysis of the text of these three constitutions see Goldschmitt,
Robert: Geschichte der Badischen Verfassungsurkunde 1818-1918. Karlsruhe 1818, pp. 33-44.
13
Generallandesarchiv Karlsruhe (GLAK) N Nachlass Karl Friedrich Nebenius Conv. 35:
Verfassungsunterlagen aus dem Nachlass Nebenius. 1818ff.
ius did not have to argue for every single article of the Baden constitution,
but only for specific regulations differing from existing institutions, shows
that a certain “common sense” with regard to the characteristics of a constitutional system and particularly a constitutional monarchy was already
present at that time.
The driving force for constitutionalisation in Baden since the second half
of the 1800s had been on the one hand Baden’s difficult budgetary and
geopolitical situation, and on the other hand the challenge of political integration given the heterogeneity of the state. In view of the somewhat “ahistorical” character of the grand duchy and the comparatively weak tradition of its own landständische or other constitutional experiences, 14 Baden
was perhaps more open to, if not dependent on, exports of foreign constitutional ideas and concepts than other German states. Within the small bureaucratic elite, which was almost exclusively involved in the concrete deliberations on the constitution, a rather uniform idea of the main features
of the future constitution was present: the idea of a constitutional system
with a dominant monarch and a subordinate parliament, but with relatively
generous fundamental rights to gain the support of the broader public for
the constitutional project and to fulfil the vital task of integration. Other
concepts than these were practically not discussed at all: neither the continuation of the traditional absolutistic form of government, which was at
least a theoretical option, nor a more liberal or even radical constitution,
possibly based on the principle of the sovereignty of the people, were seen
as conceivable alternatives: whereas the former was interpreted as being
behind the times and unsuitable for the solution of contemporary problems, the latter was regarded as an inopportune and even dangerous experiment breaking with the country’s and the people’s “historical heritage”.
In view of this pretty clear image of what the future constitution was to be
like, reflecting the contemporary political actors’ dominant perceptions of
adequate constitutional systems, the French Charte constitutionnelle of 1814
did, indeed, impose itself as a possible model.
Taking into account the revolution of 1789 and its dynamism, it was an
act of political reason to meet current political and political theoretical
trends without sacrificing paramount positions. That was all the more important, as the traditional legitimizing strategies of the monarchy, based on
the idea of divine rights, had been steadily undermined by the enlightened
14
Württemberg is perhaps the best example of a state with an important landständische past, but
Bavaria too had a long tradition of cooperative government.
7
philosophy of the 18th century 15 and was more of rhetorical than practical
use in the post-Napoleonic era. Thus, a new and pragmatic basis for the
legitimacy of monarchical power had to be found, in fact a basis, which was
in a certain sense to be “revolutionary”, too. 16 The Charte succeeded in fulfilling these needs: as a constitution octroyée, given by the ruler and not voted
upon by a parliament, it kept the ruler’s claim to represent the pouvoir constituant, and in its content the predominant role of the crown was guaranteed.
At the same time, it followed up the innovations of the revolutionary and
Napoleonic age, most obviously by clinging to the civil code of 1804,
commonly known as Code Napoléon. 17 Hence, the French king succeeded in
creating a new basis for his rule by taking the initiative, offering a “top
down” model of constitutionalisation and presenting himself, somewhat
paradoxically, as a guarantor of stability and progress at the same time. 18
The Baden constitution of 1818 followed this example exactly, tried to find
a synthesis of “tradition” and “modernity”, maintained the Grand Duke’s
leading position in the new form of the “monarchical principle” and guaranteed basic rights as well as participation in the legislation by the people.
In this respect, the model-character of the Charte cannot be neglected.
Nonetheless, what is often overlooked is not only the fact that the Charte
was the product of very specific developments and a unique “historical
moment”, but also that the French constitution of 1814 itself built upon
the widespread idea of “exemplary government” and an “ideal constitution” – ideas, which were to a large extent built upon the perception of
English constitutional law. 19 Though there are no indications that Nebenius
15
Perhaps the best overview of 18th century political thought is Goldie, Mark & Robert Wokler (Eds.): The Cambridge History of Eigtheenth-Century Political Thought. Cambridge [etc.]
2006.
16
Cf. Sellin, Volker: ‘Heute ist die Revolution monarchisch’. Legitimität und Legitimierungspolitik im Zeitalter des Wiener Kongresses. In: Quellen und Forschungen aus Italienischen
Archiven und Bibliotheken (1996) No. 76, pp. 335-361.
17
The “Napoleonic Code” (Code civil des Français), came into force on 21 March 1804.
18
Cf. Prutsch, Markus J.: Die Charte constitutionnelle Ludwigs XVIII. in der Krise von 1830.
Verfassungsentwicklung und Verfassungsrevision in Frankreich 1814 bis 1830. Marburg 2006,
pp. 145-149.
19
Given the fact that in Great Britain there is – still – no formal written constitutional charter
with a special force of validity (“formal constitution”), the English constitution can be characterized as a “material constitution”.
A detailed study on French and German perceptions of the English constitution during the
18th century is offered by Hans-Christof Kraus (Kraus, Hans-Christof: Englische Verfassung
und politisches Denken im Ancien Régime. 1689 bis 1789. München 2006). Regarding German perceptions of English constitutional law between 1748 and 1914 see Pöggeler, Wolf-
directly took over English constitutional law, the relevance of this “model”,
mediated by the French Charte, is undeniable.20 This can be illustrated on
the basis of two examples: the concept of a “representative constitution”
and the bicameral system.
Concerning the question of the introduction of a representative system,
old German traditions of cooperative government, dating back to the middle ages, and “modern” ideas of political participation, based on the principle of equality before the law and uniform “representation” of the whole
people in parliament, clashed. It is revealing, that Baden as the only state of
early constitutionalism in Germany clearly decided in favour of the latter
alternative. The use of the word landständisch in the Baden constitution as
well as in the political debates of the time and even in Nebenius’ papers
obscures the fact that the term was often not literally meant; either because
the fundamental difference between landständisch and repräsentativ was not
that clear, 21 or, what seems in the Baden case to be even more likely, because the term was used by the opponents of cooperative government to
cover their real aspirations and to allege the accordance of their own constitutional projects with article 13 of the German Federal Act, providing
landständische Verfassungen for all German states. The exceptional introduction of a representative constitution in Baden shows the relatively weak position of the estates in Baden and on the other hand the openness of the
Baden constitutionalisation process to external influences.
The representative system itself had developed and gained acceptance in
England during the 17th century. It found a prominent advocate in Montesquieu too,22 for whom the legislative body had to be built upon représentation and not identité, as it did for Rousseau in his concept of the “general
will”. 23 Montesquieu’s more realistic and practical concept, especially with
gang: Die deutsche Wissenschaft vom englischen Staatsrecht. Ein Beitrag zur Rezeptions- und
Wissenschaftsgeschichte 1748-1914. Berlin 1995.
20
Cf. Heinrich, Herbert: Über den Einfluß des Westens auf die Badische Verfassung von
1818. In: Baden im 19. und 20. Jahrhundert. Verfassungs- und verwaltungsgeschichtliche Studien. Band I, Karlsruhe 1948, pp. 23-80.
21
An illustrative example for the interchangeability of the term is the case of SchwarzburgRudolstadt: Whereas Baden had introduced a representative system, calling it landständische
Verfassung, in the small Principality of Schwarzburg-Rudolstadt a “representation of the people” was introduced in 1816, to which delegates of the three estates were still sent.
22
Cf. Montesquieu 1950 [1758] XI 6.
23
Cf. Rousseau, Jean-Jacques: Oeuvres complètes 3. Du contrat social. Écrits politiques [ed.
by Bernard Gagnebin & Marcel Raymond; Orig. “Du Contrat Social ou Principes du Droit
Politique”]. Paris 1996 [1762].
9
regard to larger political units, met with approval from the leading figures
of the French Revolution in 1789 and became part of the constitution of
1791 24 and its successors. The idea of a representative constitution was finally also adopted by the Charte in 1814, even though the “revolutionary”
term “representation” was not explicitly mentioned.
In Baden, the idea of a representative government even appears in the
draft of the constitutional commission of 1814/1815, and not only in that
of the 1816-commission, as Herbert Heinrich supposes in his study on
western influences on the Baden constitution.25 In this draft, a system of 41
electoral districts was planned, and in each of these districts one representative was to be elected, no matter to which estate he belonged.
Yet, given the fact that several elements of cooperative government were
still present in the draft, 26 the representative constitution was only put into
full practice by Nebenius in 1818. Comparable to the French constitution
of 1791 and the later Charte, the second chamber was composed of representatives of certain territorial units, Départements in the case of France,
towns and Ämter (districts) in the case of Baden. Thus, for the first time in
German history, the representation of all electors by a parliament (Landtag)
constituting the “whole people” became a reality. By introducing such a
system, however, an important change in the relations between ruler and
people took place insofar as the former was no longer the only representative of the people, but was now in competition with parliament. This kind
of “latent dualism” between monarch and parliament in monarchical constitutional systems, which was explicit in the French constitution of 1791,
but implicit only in the Charte and the Baden constitution, was to become
of crucial importance for constitutional reality and one of the main sources
for constitutional conflict. 27
The most important missing key ingredient in all the representative systems in the post-Napoleonic era was universal suffrage. In the concrete ar24
Cf. Tit. II, Chapter I (3), Art. 7.
Cf. Heinrich 1948, p. 53f. Heinrich makes reference to Nebenius’ first constitutional draft
elaborated 1816 for Sensburg and particularly article 36. Printed in: Weech 1868, p. 69.
26
E.g., the clergy of the three main Christian confessions still had the right to nominate their
own deputies for the second chamber. Cf. Art. 11 Par. 2.
27
In the case of the English constitution, the concept of “King-in-Parliament”, sometimes
referred to as “Crown-in-Parliament”, was an effective creation which diminished this dualism: each Realm parliament consisting of the Crown and the two Houses of Parliament, thus
forming a single representative body, in political-theoretical respects no confrontation between king and parliament was possible.
25
rangement of electoral law, Baden trod new paths: whereas in England the
right and eligibility to vote was traditionally bound to property and land, in
France suffrage depended on the tax paid by citizens, known as census. 28 In
contrast to these to systems, the Baden constitution did not apply property
qualifications, but granted suffrage according to whether inhabitants older
than 25 were registered as citizens in their local community or held an official position (cf. § 36).29
What might have been demonstrated with regard to the principle of representative government is not only that certain “institutions” were transferred in an indirect rather than a direct way, but also that these institutions
were no longer the same after being implemented in their “import”country. The same can be seen in relation to the bicameral system as a second example for the relevance of the English constitutional system for
constitutionalisation in Baden. Compared to medieval Germany, where a
triple- or even quadruple-partition of the Landtag was usual, in the 14th
century a division between an upper and a lower house developed in England, which became the classic example for a bicameral system and was not
least taken over by the American constitution of 1787. Again it was Montesquieu’s argument for setting up two chambers as a guarantee for political
restraint and balance which became highly influential: whereas the lower
house represented actual legislative power and was a promoter of liberty
and progress, the upper house, composed of the nobility, turned out to be
a stronghold for conservatism and moderation, given the selfish ambition
of its members to preserve their privileges. 30 The same justification for a
bicameral system was used by Freiherr Marschall von Bieberstein in a
memorandum to Nebenius’ first constitutional draft of 1816, in which
Marschall argues for a “balanced combination of monarchical, democratic
and aristocratic elements” in a “good constitution” and an upper house as a
guarantor for “more mature, tranquil and sensible” deliberations in parlia-
28
Whereas the French constitution of 1791, going along with the demand of universal suffrage, had only a very low census (cf. Tit. II Chapt. II 2, Art. 2), the Charte of 1814 introduced
high obstacles for active and passive suffrage (cf. Art. 40). An economic side effect of a census
system linking tax payment and suffrage is the reduction of tax evasion and a certain motivation to increase one’s own economic situation.
29
In: Verfassungs-Urkunde für das Grossherzogthum Baden (29 August 1818). In: GroßherzoglichBadisches Staats- und Regierungs-Blatt. Carlsruhe 1818 No. XVIII. The right to be elected as
parliamentarian was still bound to property qualifications. Cf. Art. 37 Par. 3.
30
Cf. Montesquieu 1950 [1758] XI 6.
11
ment.31 Moreover, for Marschall, bicameralism offered a possibility to integrate the mediatised nobility and win them over a possible ally, whereas a
slight on and humiliation of the peers by favouring a one-chamber-system
would produce a constant source of trouble and radicalize this particular
social group. In view of these weighty arguments, bicameralism was never
fundamentally questioned during the constitutional debates in Baden, except for the two constitutional drafts of 1816, which have to be interpreted
as a reaction to political agitations among the Baden nobility in the previous months. Nevrtheless, in the same year Grand Duke Karl was again
won over for the bicameral system, 32 and in 1818 the upper chamber of the
Baden Landtag became even more independent than its counterpart in the
English constitutional system and in the Charte, which followed on from
the well-tried English model. 33 Whereas in both the English and French
case the king was not restricted in his right to elect new lords or peers and
had the possibility to form majorities in the first chamber by appointing a
proportionate number of new members, in Baden direct influence capabilities were highly restricted. According to article 32 of the Baden constitution, no more than eight members were to be appointed by the grand
duke. 34 The other members of the upper house obtained their dignity of
peerage and their right to a seat and to vote regardless of special grand ducal acts of grace. These were: the princes of the grand ducal house (§27 Par.
1), the heads of the mediatised families (§27 Par. 2), the Land bishops (§27
Par. 3),35 the representatives of the lower nobility (§27 Par. 4), and the delegates of the two Baden universities Heidelberg and Freiburg/Breisgau (§27
31
GLAK 48 Haus- und Staatsarchiv: III. Staatssachen 6069: Vorarbeiten, die Einführung einer
Verfassung betreffend. 1816. Doc. 9.
32
Cf. GLAK N Conv. 35. Also in this respect Heinrich (1948, p. 56) is wrong when he argues
that “bis kurz vor der Einführung der Verfassungsurkunde” it was rather unclear “ob man
eine besondere Adelskammer schaffen und damit das Zwei-Kammersystem einführen wollte”.
33
A vital argument for the installation of two chambers in France 1814 was not only the necessity to integrate the old nobility of the Ancien régime, but also to integrate the members of
the Napoleonic Senate who had to be rewarded for their active role in the deposition of the
emperor (as for the events in detail cf. Tulard, Jean: Les vingt jours (1er-20 mars 1815). Napoléon ou Louis XVIII? Paris 2001). On bicameralism during the Restoration in France see de
Dijn, Annelien: Balancing the Constitution: Bicameralism in Post-revolutionary France, 1814–
31. In: European Review of History (2005) No. 12, pp. 249-268.
34
§ 32. Contrary to England and France the appointment of hereditary peers was in Baden not
explicitly provided and in the constitutional reality never practiced.
35
Except for those eight members, who the Grand Duke was allowed to appoint “ohne Rücksicht auf Stand und Geburt” (§ 27 Par. 6), he also had the right to appoint one protestant clergyman besides the bishop of the Land, whose peerage was directly connected with his office.
Par. 5). Thus, the character of the Baden upper chamber was that of a
rather independent political power, in which the supremacy of the hereditary nobility was guaranteed. 36
Thus, the constitutional system of Baden more than the Charte and even
the English constitution met Montesquieu’s ideal of a strong upper house
as being a vital element in a monarchia mixta, balancing both monarchical
and democratic elements by introducing an aristocratic element. For this
reason, one may also surmise that Montesquieu’s central concept of a separation of powers 37 had been implemented in Baden. Nonetheless, the relatively strong and independent position of the Baden upper chamber should
not be overestimated. Rather its role should be seen in the context of the
fundamental principles on which the Baden constitutional system of 1818
was founded. These fundamental principles do, indeed, go against the idea
of a separation of power as described by Montesquieu with regard to the
English case. The foundations for the English constitutional form of government were strangely missing in Baden. The historical corner stones
which had developed gradually over a longer period of time and on which
the Baden constitutionalism was to be built, e.g. a standing army, bureaucracy and particularly absolutism, had never been of comparable importance
in England. The Baden government, therefore, had a much stronger position than its English counterpart, especially after the enforcement of the
administrative reforms and the radical centralization process during the
Napoleonic era. To put it in slightly exaggerated terms: whereas in England
constitutionalism, the result of a long term process, was meant to overcome absolutism, the Baden constitution in its emphasis on the monarchical principle, which again had been taken over from the Charte constitutionnelle, was founded basically on principles of absolutism. Strictly speaking,
article 5 of the Baden constitution, specifying that “Der Grossherzog vereinigt in Sich alle Rechte der Staatsgewalt, und übt sie unter den in dieser
Verfassungsurkunde festgesetzten Bestimmungen aus”, was incompatible
with a constitutional monarch. One person cannot be the bearer of the
“entire state authority” and similarly be restricted in exercising such author36
Obviously, granting the former Standesherrn a special role in the upper house was meant not
only as political compensation for the loss of their former privileges, but also as a commitment and obligation for peers to show future loyalty if not political support for the monarch.
37
In fact, Montesquieu never mentions the term séparation in his works, but rather speaks “de
combinaison, de fusion et de liaison des pouvoirs”. However, given its familiarity even here
Montesquieu’s central idea of a balanced political system built upon several pillars may be
called separation of powers. See Montesquieu 1950 [1758].
13
ity. This obvious contradiction, being less obvious in the French Charte as
the prototype of monarchical constitutionalism, 38 was to be resolved by a
political-theoretical distinction between ius and exercitium. Accordingly, the
substance of absolute monarchical power was still in the hand of the
crown, though its execution partly left to certain constitutional institutions.
Contrary to Montesquieu’s concept of three independent powers, which
are based on a legitimacy of their own and hold both ius and exercititum, in
the case of the Charte and the Baden constitution of 1818, the only holder
of ius is the monarch. The other powers in the constitutional system are
subordinated and only have delegated power (exercitium). In this context,
the monarchical principle also differs from the royal prerogatives of the
English monarch, which had already been discussed by Locke 39 and describes the power belonging to the monarch after deducting parliamentary
rights. In the English case, monarchical power represents “what remains”
and is not claimed by the other constitutional powers. The monarchical
principle turns this rule upside down: here the ruler is the holder of all the
authority and the other powers can only take action in those fields which
are not claimed by the monarch himself.
Though the practical importance of this differentiation is certainly not to
be overestimated, its political-theoretical implications are, nevertheless, essential. No less than a counter concept to Montesquieu’s separation of
powers had been created, which suggested at least the continuity of central
elements of absolutistic rule: it facilitated the voluntary renunciation of
former rights for Louis XVIII in France as well as for Karl in Baden.40
Without going into further details at this point, it can be stated that the
monarchical principle as core element of “monarchical constitutionalism”
formed the crucial innovation of the French Charte of 1814, which was later
imitated in the Baden constitution of 1818. In many other respects, how38
Here, the role of the monarch was not described as that of the “bearer of all state authority”, but only as “chef suprême de l’État” (Art. 14). Rather similar to the phrase in the Baden
constitution however was the expression in the preamble of the Charte, stating that “l’autorité
toute entière résidât en France dans la personne du Roi”.
39
Cf. Locke, John: Two Treatises of Government. A Critical Edition with an Introduction and
Apparatus Criticus [ed. by Peter Laslett]. New York [etc.] 1965 [1689] II § 159.
40
What gives evidence for the different status of monarchical power in France and Baden
compared to England is the way in which legislative power is exercised: Whereas in the latter
case no monarch since 1708 had dared to withhold the Royal Assent on a bill passed by parliament, in the Charte and the Baden constitution of 1818 parliament did not even have the
right to introduce bills but only to deliberate royal or grand ducal proposals.
ever, the concrete paths of “transfer” and “reception” of the French constitution of 1814 in Baden are less clear, and for a good part it seems that
the Charte was rather a mirror of and filter for other constitutional practices
and institutions than an original model.
Conclusion
In conclusion it can be said that the idea of the Charte constitutionnelle as a
transnational “model” for Post-Napoleonic constitutionalism, at least with
regard to Baden, has to be put into new perspectives. The remarkable thing
about it is that the direct “model-effect” of the French 1814-constitution is
only of a very particular nature, whereas in many respects no direct links or
even obvious differences are to be recognised The latter can particularly be
shown with regard to the comparability of the genesis of the Charte and the
Baden constitution of 1818. Here, it is characteristic that the formation
process of the two constitutions was fundamentally different, both concerning domestic and international contexts. That, however, does not imply
that there were no normative elements in the Charte which might have been
of an exemplary nature for the constitution in Baden.
Indeed: regarding the question, in how far the text of the Baden constitution was influenced by the French Charte or possible other models, hints
can be found both in the French and the Baden constitution, though there
are no indications of direct take-overs from the Charte in the sources. But
even here the results are far from unequivocal. The character of “transfer”
and “reception” is ambivalent and for the most part only indirect influences are identifiable, in which the Charte had the function of a “broker”.
In many cases certain elements seem to originate from the English constitutional system, such as the idea of a “representative government” or the
bicameral system. The question is, nevertheless, whether these elements
were then still seen in a national framework and linked to Great Britain or
whether they had already become integral parts of a more general and
somewhat supranational conviction on what has to be an essential element
of a “constitution”. At any rate, what is noteworthy and characteristic are
the transformation processes in the course of the transfer, resulting in the
constitutional “export” products not being necessarily the same after their
implementation in the “import” society.
15
One case, in which decisive influences of the Charte on the Baden constitution are indubitable, concerns the system of “monarchical constitutionalism” in general and the “monarchical principle” in particular. This decisive
element of the Baden constitution, which opposed Montesquieu’s principle
of the separation of powers and was to become “the” formula for European top-down constitutionalism in the 19th century, offering a possibility
to introduce basic (political) rights and making concessions to the liberal
movement without accepting the very core of progressive constitutional
theory, was clearly inspired by the Charte constitutionnelle. In this respect the
French constitution of 1814 did without doubt become a model for the
Baden as well as broader European constitutionalisation. Nonetheless, even
in this regard, it has to be seen that the intention to set up a kind of “constitutional absolutism” in Baden had already been discussed in earlier deliberations on the formation of a constitution from the late 1800s onwards.
What was missing then, though, was the juridical form that was later provided by the Charte. Thus, it seems that the actual strength of the Charte constitutionnelle was above all to provide the mould, into which certain existing
constitutional and political concepts were to be poured. What is fairly remarkable in this context is that the monarchical constitutional system outlined in the Charte became a more appropriate and stable institutional
framework for Baden and (Southern) Germany as a whole than for France
itself: whereas in the former case the system fitted well in the tradition of
enlightened and state absolutism, in the case of France, with its revolutionary experiences, “monarchical constitutionalism” was to be interpreted as
“behind the times” if not actually a political step backwards. That may be at
least one variable for explaining the dissimilarities in the development of
French and German constitutionalism during the 19th century and the tendency for a greater stability of monarchical constitutionalism in Germany.
Nevertheless, the French system was far from being a “monarchie impossible” 41 but open to reforms and evolutionary constitutional developments,
provided that above all monarchical power as leading political force preserved its ability and will to reform in its political actions.
41
Cf. Rosanvallon’s normative and to a certain degree prejudiced interpretation of the whole
restoration system as a monarchie impossible: Rosanvallon, Pierre: La monarchie impossible. Les
Chartes de 1814 et de 1830. Paris 1994. The system of monarchical constitutionalism generated in France 1814 certainly represented a somewhat fragile, nevertheless, highly adequate
and promising reply to the needs of the post-Napoleonic age – an innovative response, leaving
enough room for development.