The constitutional uniqueness of the Polish-Lithuanian Commonwealth, from the sixteenth to the eighteenth century

KazimierzBaran

Jagiellonian University, Cracow

The Constitutional Uniąueness of the Polish-Lithuanian Commonwealth, from the Sixteenth to the Eighteenth Century

The aim of

this

text

isto

provide

abrief

survey of a

series

of

constitutional features that

were

characteristic

of

the Polish-Lithuanian Commonwealth

(often

referred

to as

Respublica

or,

in

Polish,

Rzeczpospolita),

a unique organism „which once - to

use thewords

of

Norman

Davies

- roamed

the plains of

Eastern Europę”

1.

1 Norman Davies, God’s Playground, A History of Poland, Oxford 1981, vol. I, 371. Norman Davies provides a series of interesting remarks on the uniąueness of the Republic constitutional- ism. Interesting discussion of this problem may be also found in Wenceslas J. Wagner, ed., Pol­

ish Law throughout the Ages: 1000 Years of Legał Thought in Poland, Stanford, CA 1970; Jacek Jędruch, Constitutions, Elections and Legislatures of Poland, 1493-1993. A Guide to Their History, foreword by Norman Davies, New York 1998. See also Stanisław Płaza, Changes in the Political System of the Polish Commonwealth after Extinction of the Jagiellonian Dynasty, Acta Poloniae Historica 52 (1985), and also Kazimierz Baran, Procedurę in Polish-Lithuanian Parliaments from the Sixteenth to Eighteenth Centuries, Parliaments, Estates and Representation 22 (2002), 57-69.

2 By 1582 the territory of the Commonwealth amounted to about 815.000 sq km to reach almost 990.000 sq km in the first half of the 17'h century, cf. The Historical Atlas of Poland, War­

szawa - Wrocław 1981, 14, 16.

Although

the Republic

of

the nobles

survived until the

end

of

the

eighteenth

century,the consolidation

of

itsspecificconstitutionalcharacteristics

had taken place

betweenthemid-fifteenth

and the

end

of

thesixteenth

century. At that

time

Poland,

already

united

with Lithuania

first

by personal and

later

by

constitutional

union, madę

up one of

the

largest

political

organisms

inEuropę

2.

Within

its

boundariestherewas much

of

what

is

present day

Ukrainę,

Byelorussia,

Lithuania,

Latvia etc. From the

ethnic

point

of

viewthe

Commonwealths territory

varied considerably. Apart from the

Poles

and

Lithuanians

it

was possible to

distinguish among its

inhabitants

the

Eastern Slavs,

at

that time referred

toas the

Ruthenes

(in fact

the

eastern

part basi-

cally

spokeRuthenian),

Latvians, a considerable proportion of

Jews,butalsothe

rep-

resentatives of smaller

minorities likeArmenians,

Tatars

or

even

Scots. Among the

Ruthenians

and

Lithuanians

the

upper

stratawereeasilypolonized.Generally

speak-

ing,

across the

entire

Commonwealth, the upper

strata amounted

to

a

considerable

98 Kazimierz Baran

particie

of

the

total

population.

Indeed,

the nobles

madę up some 8 percent of

the entire

population rising

to

10

percent

in

theeighteenth

century.

This was

a remark-

ably high

percentage by

theEuropean

standards of

thetime

3 4 .

3 The Commonwealth had the largest European proportion of the nobles in Europę, several times as many as in other countries. Only Spain and Hungary could come close to it in that respect.

On details see Davies, op. cit., vol. I, 215, see also 228.

4 In old Poland-Lithuania statutes were traditionally called Konstytucje (Constitutions). Hence the formal name of Nihil Novi is the Nihil Novi Constitution.

5 The Nihil Novi law of 1505 proclaimed: “Because common laws and public ordinances affect not one, but all people in common, therefore, at this Sejm of Radom, with all the judges, council­

lors, barons, and territorial deputies assembled together, we have reasonably moved and, further, adopted, the following equitable resolution: that, because such might become a detriment and in- jury to the State, an injury and misfortune of whatever sort to the private individual, and make for change in regard to public right and liberty, henceforth, and in futurę times in perpetuity, no new laws shall be madę by us or our successors, without the consent of the councilors and territorial deputies (Jędruch, op. cit., 418)”.

In addition, as we

shall see, the nobility

enjoyed considerable rights. Above all,

thenobles were successfully

protected by

their Habeas Corpus

against

arbitrary ar- rest

and detention by the State agencies, and,

thanks

to

theirpoliticalprivileges,

had a

largeshareinthegovernment

of

the

country.

The first striking

feature

of the Commonwealth

was

its democratic model of

gov- ernment. Unlike

other

Europeancountries

that from

the

end of

theMiddleAges

be-

gan

to

evolve constitutionally towards absolutism, Poland-Lithuaniadriftedtoward noble

democracy.

A

series of

privileges

granted to

the szlachta (the nobility) in the forteenth,but

mostly in

thefifteenthcentury

laid

foundations

for

a

kind of civil

soci- ety

that

thenobles

could form vis-a-vis the

monarch.Equipped withvariouspolitical

rights and

well represented in the bicameralparliament

referred to as

the sejm, the szlachta

could convert the King into an

organ

that

was

subject

to

law.

Lex was

supe­

rior to Rex and

notviceversa.

The

fundamental

principle of nobility

s constitutionalism that

remarkably

facili- tatedthesubsequenttendency towards

a republican

form

of goverment

inthenoble- men’sCommonwealth

was that of the

separation

of powers.

It wasformulated

as early as

1505,in

the Statute

laterreferredto

as Nihil

Novi\ and adopted by the

sejm

held

in Radom. The statute

prevented

the

King from

exercising unlimited legislative

power.

He promised that he

would notadoptanything

new which might affect the liberties of his

noble

subjects without obtaining the consent of

the councillors (senators) of the

upper

house

and

the

szlachtas representatives sitting

inthelower

house5

.

As a result of

the

Nihil Novi

formula

the business of the King was

to

implement law

but not to

produce

it. Of

course, while

implementing it, the King

could adopt various

executive

decrees, edicts, or

other measures

of that

kind.

They

could not however

affect

thegenerallyappliedlibertiesthat

his noble citizens

enjoyed.

Furtherconstitutional

developments

in the Commonwealth

added precision to

the depiction

of the

figurę

of the

monarch as someone who

is

subjected

to law. On

The

Constitutional Uniąueness

of

the Polish-Lithuanian

Commonwealth...

99

the

extinction of

theJagiellon

dynasty the

szlachtaformulatedin 1573a

kind of a

Bill

of

Rights

of the

Respublica utriusque gentis (poi. Rzeczpospolita ObojgaNarodów).

Thedocument boręthename

of

the

Henrician Artides6

sińce

the

first

king elected

accordingtothenew constitutional

system

was

Henri de

Valois

of

theFrench royal family. Accordingto the

Henrician Artides

the

throne became

fullyelective

and

the

monarch

was

expressly forbidden

to

leave

it

to his

son.

The election was of

the

viritim type

whichmeant

that

all

individuals of

noblerankhadthe righttoparticipate init.

And

in

fact

they

didunlesspreventedfromdoing

so by everyday reasons.

Old

paint- ings

thatdepict the royal election show a

mass rally of the

nobility

in an

immense fieldpackedwitharriving

individuals.

6 Jakub Sawicki, ed., Wybór tekstów źródłowych z historii państwa i prawa polskiego, Warsza­

wa 1952, vol. I, part 1,151-157.

7 Ibidem, 155.

It

isalso

worthwhile

to

notę that

everyone whowas

of noble

status

was

eligible, although in practice

most

Polish-Lithuanian

monarchs who

were later

elected

re-

cruited themselves

fromthe Europeanruling

families,

like

those of the House of

Vasa fromSweden or

Principalities of

Saxony

or

Transylvania.

Nevertheless,

a

handful

of Polish magnates

could

also

be found

among

them,

like Michał

Korybut

Wiśniowiecki, Jan

Sobieski,

Stanisław

Leszczyński

or the last

King of

the Rzeczpospolita,

Stanisław August

Poniatowski. What

deserves particular emphasis

is the

impeachment proce­

durę

that the

Henrician

Artides

providedfor,therebyexpressly

making

the

monarch

subjectto law.

From that time on,

if the Kingviolated

the

fundamentallaws

of

the

Commonwealth he

released

his subjects from

theduty

of obedience

to

himself7,

the

Henrician

Artides

Latin

formulaon

that point

beingde non praestanda oboedientia.

If this

happened the mass of the nobles, while

materializingtheir

ius resistendi could,

accordingto the deeply

rooted

modus procedendi,

organize an armed

leaguecalled

a

konfederacja (confederacy)and take

matters into

their

own hands. A similar

routine applied

during

interregnaorifan

enemy invaded

the

country

whenthe

regular state

agenciesceased

to

operate.

The

confederacies

formed to

oppose

an

invaderwereob-

viously

those

organized

to

support

the

monarch and

not

to

eliminate

him. However, a

confederacy

hostile to the

King,

which

blamedhim

for

the

infringement of

the

law,

was

referred to as a

rokosz. That

way or

another,

they

were

exponential of

the self-

-governmental

tendencies characteristic

of

the

political system prevalent

in

the old-

-time

Polish-Lithuanian state.

Whenviewedfrom

the perspective of the instruments that

limited

his

preroga- tive,the

monarch of

Poland-Lithuaniacould

be

called

a president for life rather

than

a monarch

inthe

sense of

the

word between

the

Renaissance and the Enlightenment.

Ifapplying

modern

standards,

one

mightsay

that his

position

was

closetothat

of

the

present

day

president of the

United

States.

Like

the

latter, the

King of

Rzeczpospolita was also exduded from the legislature, had to

observe the

fundamental

liberties

of the citizens

of

the

country to avoid

being

impeached for

theirviolation,but

was left

relatively

free in pursuing foreign policy,

provided

that he

hadsufficient

funds for

the

100 KazimierzBaran

purpose.

Usually he

did not

have

them

and he had

to ask

parliament for the money.

Thisprovided

the bicameral

sejm with the

chance

to

allocate the funds that

itvoted

for

specific

purposes,

thereby in fact controlling the executive

agencies

also in the

sphere of foreign policy.

The confederacy

wasnot the

only

component

of the Commonwealths Structure which

provided it

with a self-governmental character. The dietine

(poi. sejmik)

or

the

local assembly of the

nobility in

each of

approximately

seventy

provinces

of

the Commonwealth was

a highly self-governmental

instrument.

The

interregna,

which

atthe

end of the sixteenth

century

added

up to several

years,

facilitatedthe growing

independence of

the sejmik. Intheabsence

of

themonarch,

the

local gentry

indeed took

business

into

their

own

hands,

while the

respective ziemie (terrae)

or

Palati-

nates (poi. województwa

- these beingthe

typical

names

of the

Republics

provinces)

combined

to

form

a

confederacy

designed

toelect

a new

King.One

way

oranother,

the high standing

assumed

by

the sejmik on

such

occasions

strengthened

the

sense of sovereignty

among

the noble

citizens

of

the

respective provinces. The

sejmik

did

indeed seethe

implementation of

directdemocracy

sińce, as in the case of

thefree election

of

the

monarch,

everyone

of

noblerank

could participate

in

its

sessions

un- less

preventedfrom doing

so by everyday reasons

such

as

distance,

disease,

farming businessormerelylack

of

interestinpublic

affairs.

The

numerical

strength of the nobility

meant

that

tens

of

thousandscould

tum up

in

some

provinces,butin

practice

several hundredwouldform

a typical sejmik meet-

ing

when urgent matters

were

to be debated (the largest

recordedsession

amounting

to

1

200individuals)

8

.In slack

periods less

than

one

hundred

would

attend.

The

ses

­ sions

were far from

chaotic. The

debates

followed

a routinehoned

over generations.

This

induded

various

systems of voting and vote

counting, including the so-called kreskowanie,

as

well

as

the official

registration of the

sejmik

resolutions

in thegród Courtor

gród chancery.

8 Stanisław Płaza, Sejmiki i zajazdy szlacheckie województwa sieradzkiego. Ustrój i funkcjono­

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

The

self-governmental climate,

prevalent

in the Commonwealth, accounted

for the

lack

of

intricate

bureaucratic

machinery characteristic

of

the

states that developed

towards absolute

monarchies.

This

lack of a

substantialcentralbureaucracy

proved

providential

for the prosperity of

the

minorities

which,asa

result, enjoyed consider-

able

freedom and

wereallowed

to

abide

by

theircustoms

in

their

internal affairs.

The

Jewish

minority

was

especially

autonomous

in

this regard.

Cecil

Roth

wrote:

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

The Constitutional Uniqueness of the Polish-Lithuanian Commonwealth... 101

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

9 Cecil Roth, A History of the Jews, Schocken Books, New York 1970, 269.

10 As regards finances only the total amount of the tax imposed upon the Jews was negotiated each year between the Jewish representatives and Polish Minister of Finance, while its distribu­

tion was left in the hands of Jewish authorities, cf. Andrzej Bryk, Jewish Autonomy in the Polish- -Lithuanian Commonwealth from the Sixteenth to Eighteenth Centuries, Archiwum Iuridicum Cracoviense 21 (1988), 51-69.

11 Roth, op. cit., 270-271. Morę details on the Jewish diaspora in the Respublica may be found in Jews in Poland by Chimen Abramsky, Maciej Jachimczyk, Anthony Polonsky, Blackwell ed., Oxford 1986, as well as in Bryk, op. cit., 51-69; see also Jędruch, op. cit., 141-144.

12 For morę details see Bryk, op. cit., 64-66.

Thus the

self-governmental tradition of the

Commonwealth

allowed the

Jewsto arrive

at a

degree

of

autonomy

unattainable

elsewhere.

They

went

as

far

as

forming their

own

Jewish Parliament or the Council referred to

as

the Vaad.

The Vaad

ob- viouslycould not adopt laws

that would be

generally

binding

on

everybody

in the Rzeczpospolita butit

could

successfully deal

with internal

Jewishmatterssuch

as rab-

binical

education,

charityor

the distribution of

theJewishpolltax

10 11

.

In

his discussion of

the

Jewish

Council,

Cecil

Roth

emphasized:

The Council, at its prime, was virtually the Parliament of Polish Jewry, with authority nearly as absolute as that of any legislature. Plenary meetings were held each year, not only at the Spring Fair at Lublin, but also at that in the early summer at Jaroslav, in Galicia.

During the sessions of the Polish Diet at Warsaw, the Council would send an agent, or Shtadlan, generally a persona grata at court, to watch over Jewish interests. Internally, its authority was absolute. Besides apportioning taxation it would assist in enforcing royal edicts; it passed sumptuary laws, to enforce moderation in dress and social life; did all that lay in its power to prevent undue competition; it supervised education; it acted as a court of appeal, and decided on matters which were in dispute between one congrega- tion and another. All the Council s regulations, however trivial, could be enforced, if the necessity arose, by the power of excommunication, which was backed up by the authority of the State. Nowhere, sińce the decay of the Jewish center in Palestine, had a morę com- plete approach to autonomy existed“.

Thanks

to

having

this

kind of

their own

intricate self-governmental

bodiesthe Jewishpeople

could

form

a

successful

lobby

preventinganyanti-Jewish

legislation

at the

local as

wellascentral

levels

12

.

It

hasalready been

emphasized that one of

the

distinctive features of the

Respub- lica, the

one that

accounted

for the democratic mechanism of its Structure, was

the

extraordinary legał

status

of its noble

citizens.

The latter

were successfully

protected

102

Kazimierz

Baran

against

the

arbitrary reach

of State

power. This

degree of independence enjoyed

by thenobles

was due

toaseries

of

privilegesthatthenobles

had

obtained

commencing

with theKoszycePact

of

1374.

The most prominent among these privileges were

those which,like

that of Czerwieńsk of

1422 or

that of

Jedlnia

and Cracow

of

1430-1433, conferred

onthe

upper

stratum

of

theRzeczpospolitathe

rights

which

might easily

be identifiedwith

modern

human

rights.

Thus

Czerwieńsk privilege

protectedthe

prop- erty

ofthe

nobles from

being

confiscated without due

process

of law,

while Jedlnia

and

Cracowexpanded thedue-process-of

law reąuirement

to the cases

of arresting or detaining

a

nobleman13

.

13 From that time on, a nobleman could be immediately arrested only in drastic cases such as highway robbery, kidnapping women, arson etc., and, when arrested, he had to be promptly brought before the Court and tried. His preliminary detention could not therefore turn into an im- prisonment ad infinitum. It was designed only to secure his appearance in the Court; cf. Jędruch, op. cit., 417-418; Baran, op. cit., 59.

14 Jędruch, op. cit., 134.

Another noteworthyliberty

of

the

nobles

was

their freedom of

conscience.

That

was granted to

them through

the resolution

of

Warsaw

Confederacy

of

1573

and

subsequently

incorporated

into

the

Henrician Articles

which,

as

has already

been said, functioned as

the

Commonwealths Bill of

Rights.

The text of the Confederation proclaimed:

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

Nobless

ofall

Christian denominations, as

wereputon the same footingthe rest of

their

noble brethren.

However, further developments madę

the entire

problem of

religious

toleration in

the Republic morę

complex. The Union of Brest

of

1596 en-

couraged

a

certain proportion

of Orthodox Christians

to form the “

Uniate”

(Greek Catholic) Church

which

acknowledgedthe

supremacy of the Apostolic

Seein Romę.

This led to

a few decades of discrimination

againstthosewho remainedloyal to the traditional

Orthodox Church.

Yetin

the

1630s KingWładysław IV

Vasa

yielded

to

the

reality that he encountered

on succeedingtothe

throne of

the

Commonwealth.

Finding

a remarkable number of

those

who

practised the

traditional

beliefs in the

eastern

part

of his country, he

helped

persuade

the sejm to

legalize

afresh the Or- thodoxChurch

within

theboundaries

of Poland-Lithuania. Religious

tolerationwas thus restored. However,

throughout

the

seventeenth and early

eighteenth century

The

Constitutional Uniąueness

of

the

Polish-LithuanianCommonwealth...

103 it

was not easyto maintain the high standard

of this

toleration,

particularly, when

during the

wars against Protestant

Sweden in the 1650s Swedish armies

devastated

the country and profaned Catholic churches. Despitethis

bitter experience the for­

mal

discrimination of non-Catholics

in

the sense of

preventingthemfrom sitting

in parliament was

only

a

short-lived

episode between

the 1730s

and

1760s. One way oranother, the

formal

declaration

of religious toleration in

1573preventedreligious

civil

wars from

breaking

out in the Commonwealth. True,

the religious

toleration was

limited

to

Christian denominations.

Yet

in

fact its

pronouncement

alsohadan impact

on

the

status of non-Christian

creeds.

The

Jews, bound

to

Judaism, and the

Tatars professing Islam, could practise they creeds unharassed15.

15 Morę details on the religious questions of the Commonwealth may be found in Davies, op. cit., see his chapter on Antemurale, vol. I, 197.

In

the

context of

their

privileges,

the

large share of the nobles

inthegovernment

of their country

should

once again be

emphasized.

The direct democracy

realized

through

the

sejmiki, the

fuli legislative

power

vested in

the bicameral

sejm and the viritim election

of

the

monarch,

were the foremost political rights

of

the

nobility.

These rights

consolidated the popular conviction

among the

nobles that

their will

could

not

be ignored

whenever major decisions on legislative

measures

or on the

foreign policy of

the

country

werebeing

taken.

The republican

upper

class was

alsocharacterized

by the egalitarian

spirit

perme- ating their

ranks.According to

proverb

coined at

that

time: “Szlachcic

na zagrodzie

równy wojewodzie”

which could be

translated as:

even

the

poorest

noble

(having

only

a few

acres

of

land)

was equal

to

a

palatine

(a senator of

thefirst

rank). The say- ing expressed the

idea

that irrespective of

your

wealth,

as long

as you

were

a

noble,

and particularly,

if

you

werea possessionatus(and youcould

be one even

if

you leased

land

instead of owning

it),

you enjoyed all

theprivileges

of your class.

One morę question

that

requires comment in the

context of

the

unique

status of

Polish-Lithuanian nobles

is

a

distinct feature

of

the

culture with which this

class

identified

themselves.

The

culture

in question was

theculture

of

Latinitas.

The devel-

opment

of

thelatter

had something to do with

the sixteenthandseventeenth-centu-

ry

religious

experience of the

Commonwealth.

The

sixteenth century

was

the

time

when many nobles,

particularly those prominent

in

the

sejm,

accepted Calvinism.

It was

thegrowing

number of

non-Catholics

throughout the sixteenth

century that

accounted for

the

aforementioned

tendency

to

promote

religious toleration

in

order to

avoidreligious

wars. Yet, from the end of

the

sixteenth century,

andthen

through­

out the seventeenth

century,

many of

the

Commonwealths

Protestantsbeganto

drop

their

reformedfaith,thereby

returning

tothe

creed of

theirancestors.

The reasons for

thisweremany but

the tendency

seemedto

a

largeextent

to

be

due to the

particular

faithfulness with

whichthe

principles of

the

sixteenth-century

Council

of Trent were

adopted

and implemented

in

Poland-Lithuania.

These

principles

were

designed

to

do

away

withall

the

negativeaspects

of the life of Catholic Church which had

provoked

104 KazimierzBaran

theReformation.

And

indeed,

an

improvement in

the

morał andintellectual

level of

Catholic clergy

was

soon

evident.

This

madę

them

capable of effective pastorał

care.

The

ex-Protestantsused

to

state

sometimes

intheirmemoirs

that they

weresurprised

at

the decisions

of

their

fathers

who at

one time

departedfrom Catholicism.An

ad-

ditional

argument that

promoted

the

climate

of re-conversion

could

paradoxically be created by

the

extent of religious toleration

itself. Since

toleration

prevailedinthe Commonwealth

as early

asthe 1560s

(at

that

time

the

sejm adopted

the

statute which

forbadethe starostowie to

execute

thedecisions

of

ecclesiastical

Courts),

the

Republic

began

to

attractthefaithful

of various sects into

which

Protestantism

wassoonsplit.

The sects

also

induded

theAntitrinitarianswho

promptly

found

themselves in

sharp

conflict

with

the Calvinists.

The

disgusting

ąuarrels

and

brawls

on

religious points

that followed

the

disputes between

theProtestants

of various

shadesalso

reached

the sejm and

plagued some of its

sessions.Such

developments worked as a discouraging

factor

vis-a-vis

those who

still

contemplated whether to chooseareformedreligion or

stay with

the

old creed.

Observing

the scene

from a

distance, the

Catholic

clergy could condude:

“

bellum hereticorum pax

est

Ecdesiae”

.

In

the meantime

theJesuits,

invited

intotheCommonwealth inthe 1560s,began to

develop a

net

of Jesuit colleges which

-

by the

standards

of

the

time - offered quite attractive,

Latin-oriented,

humanistic education. The nobles

whoattended

these

col

­ leges

learnedto

speak

fluentLatin,studied

Ovid, Virgil and

Horace,and wereableto quote

whole

fragments

of

their

works by heart.

This happenedat

the time

when the teaching

of this

ancient

language

began to

dedine

amongProtestants sińce

this

was

the language of

the

Apostolic

See

and

layhumanism

16.

16 Cf. Jerzy Axer, „Latinitas” jako składnik polskiej tożsamości kulturowej, in: Agnieszka Ra- bińska, ed„ Tradycje antyczne w kulturze europejskiej - perspektywa polska, Warszawa 1995.

17 Daniel Defoe is quoted by Davies, op. cit., vol. I, 236-237.

Thus

the mass of nobles spoke fluent

Latin and were well acquainted

with

the culture

of

antiquity.If

the

needarose

they

could

easily

switchfromtheir

native Polish

or Ruthenian

to

the language

of Populus

Romanus. Thiswaswhatsurprised

Daniel

Defoe

who, while discussing

the specificfeatures

of Polish

nobility, emphasized:

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

While returning

however

to

the

aforementioned

JesuitColleges,

we must say

that

the instruction which the

young

nobles received in

them tended

to

form

a certain

specific

frame of mind.

Thanks

to this instruction the

nobles

were attracted

to the virtues

that

at

one time excelled

amongthe

inhabitants of

republican

Romę,

includ- ing

honour, courage,

chivalry,

love of the

Patria,etc.

When

implantedintothereality

of

the

seventeenth-century Poland-Lithuania,

these

virtues

called

for

the

defence

of Christianity.

The

nobles

believed

thatthepoliticalStructure

in

whichtheylivedmadę

The

Constitutional

Uniąueness

of the Polish-Lithuanian Commonwealth.

..

105 up

the Antemurale or the

bastion

situated

at the very outskirts of civilized

world.

Historical developments ensured that

they

repeatedly had to face

challenges

threat-

ening their civilizationand

they repeatedly

were

forced

to

assume the

task

of

rescuing Europa Christiana.

It was

withinthat

linę of

thinkingthatin1683JanSobieski

under- took

the challenge

of

rescuing

Vienna

besieged

by an immense Ottoman army. And

although he,as the

commander in chief of

all

the Christian

forces,

was

not the only

ruler

at thebesieged

capital of

theHabsburgs,itis

agreed among historians that

the

charge of his

heavycavalryon

the Turkish camp

was

the

turning

point in

the

battle.

While

summing

up the

discussion of the

nobilitys ethos,

we

may also

observe

thatthe Latinitasculture

was only one of the

factors that accounted

for the attach-

ment

of

the

noble milieu to

the

values of

republicanism

of

Romę

of

antiquity.Of

sim- ilar importance was

thefactthatthe

liberties and democratic

devicesas

found in the

State

machinery of

Res PublicaPolonorum indeed

seemed

to

make the

latter

a

new embodiment

of

Res Publica Romanorum. The antique ideas

of

the

extinct ancient

Re

­ public

whose

citizens enjoyed considerable civic rights and

whodistinguished

them-

selves

by high

public spirit, attachment

to

Patria

and elevated

morals, were

some- thing that the Commonwealths

nobles could invoke

in

order

to

consolidate

their own

specific

identity. In

addition, intheirneighbouring

European

environmentthey couldnotdetectanythingwhat

might

resemble

that

kind

of

profound

democracy in which

they

themselves

had

a

share.

Therefore

their tendency to

seek

theirroots

in

the

ancient past

wasentirely

natural18

.

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

” Płaza, op. cit., 154-155; Baran, op. cit., 61.

The discussion of the

distinct

features of

the

noble Commonwealths

constitu-

tionalism cannot ignore one device that is repeatedly analyzed at

length

by the histo­

rians,

theliberum veto.

Unfortunately

the

discussion of

thisinstrument is burdened withmany

exaggerations

or

simplifications. It

seemsrightthereforebrieflytogivean

account of its functioning in

the

light of

recent

research. The point

is

that

fromthe beginning

of the existence of

Polish Parliamentslower house, its

debates

were gov-

erned by

theprinciple

of unanimous consent.

Yet,

at

thetimewhenthe

nobility were

distinguished

by

high politicalmorals,

specifically

throughoutthe

sixteenth and

early

seventeenth century,

the need

for unanimous consent was

not strictly interpreted.

There functioned effective mechanisms,

like

that of

the

“

dispersed-lower-house”

de-

vicethatsuccessfullyprevented

this body

frombeing

paralyzed by

the

lack of

una- nimity19

. For

all

practical reasons

it may be argued

that for

almost

a

century

and

106 Kazimierz

Baran

a halfthe

Polish-Lithuanian parliament

worked smoothly.

It was therefbre

only in the

mid-seventeenth century, in

the climate

of falling political morals

and incessant wars,mostly

of

adefensivenaturę,

that

theCommonwealthhadto

wagę, that the

first

symptoms of constitutional

deteriorationwere

observable. The absurd interpretation of

unanimous

consent

reached

its zenith

and the liberum veto or

individual

nega- tive vote

was

actually

implemented to

prevent thesuccessful condusion

of

thesejm debates.

Slowly

it

became

possible

for one individual to break off

the

parliamentary

session irrevocably.

Because of

this, between 1573 and 1763

about

one third

of

the sejms proved

ineffective20

.

20 For morę details see Juliusz Bardach, Bogusław Leśnodorski, Michał Pietrzak, Historia ustroju i prawa polskiego, Warszawa 1993, 216-225, 223; Jędruch, op. cit., 117, 151; Baran, op. cit., 68-69.

21 Baran, op. cit., 69.

Itwas therefore

only in

the

first part of

theeighteenth century

that

the

first

ten- denciesto

reform the Commonwealths constitution

were

observable. For

some

time

however,

the efforts of

the

reformers were

crippled

by

the

attitude of

greatpowers

that

wouldlater

partition Poland-Lithuania.

Particularly Russia, starting from Peter the Greats reign, controlled the internal policy of the Commonwealth under her protectorate. Nevertheless, the persistent reformers man- aged to achieve partial success from time to time. They did it mostly through resorting to the already discussed idea of confederacy, the armed league of the noble citizens of the Republic who could take affairs into their hands when things seemed to slip away from state control. For the sejm debates the slogan of confederacy was particularly providential.

It allowed for the convening of a parliament whose session could not be interrupted by liberum veto. Instead, majority vote was binding. It was thanks to one such sejm that the well-known Constitution of 3 May 1791 was adopted. It eventually introduced majority vote as the basie principle of parliamentary debate. Among outstanding devices adopted by this Constitution was also the vote of no confidence. This was the first time that this device was expressly introduced in any continental constitution. What is also worthy of notę in its provisions was the shaping of the image of the king on the British pattern (the king who ‘can do no wrong’ sińce all his executive acts required endorsement by the ap- propriate minister)21.

While ending

this

brief survey of

the

Commonwealths

constitutional

ups and downs

it

may

be interesting

to

resort

to what

Czesław

Miłosz

put

in

anutshell

while depicting

the

image of the

Commonwealth in

the

era

discussed

in thepresent con-

tribution. He

wrote:

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

The Constitutional

Uniąueness

of

the

Polish-Lithuanian Commonwealth.

.. 107 centralized domain of the czars, where the ruler was omnipotent, temporal and spiritual power were one, conspiracy and pałace murders were basie political tools. In the former, a climate of relaxation prevailed: habeas corpus, tumultuous sessions of the parliament, an absence of regicide, corruption and traffic in votes, anarchist leanings on the part of indi- viduals and groups and even whole regions. The peasants were exploited and politically they did not count (as they did not count anywhere then), but class democracy was a fact.

A plurality of groups battling for their own interests contended for power: magnates who flattered the hordes of petty noblemen; a monarch whose powers were so limited that he frequently had to humble himself to get credit for the army; towns’ intent on preserving what was left of their medieval privileges; and, finally, the Church and her religious or- ders, which answered to no one but Romę. In the parliament, any deputy who declared cLiberum veto!> could break off a session irrevocably - a law, unique in Europę, which implied that to pass laws a rarely attainable unanimity was necessary, and that freedom of opinion carried the seeds of its own destruction. Meanwhile, Russian diplomats looked on, stroking their beards, at first from a distance; but later, when their moves were backed up by a strong military force, they found the use of pressure or money to buy off parties or individual deputies a simple matter. Their success proved to be complete22.

22 Czesław Miłosz, Native Realm, Oxford 1981, 17-18.

Streszczenie

Ustrojowa osobliwość Rzeczypospolitej szlacheckiej w XVI-XVIII wieku

Artykuł analizuje te elementy ustroju dawnej Rzeczypospolitej szlacheckiej, które ujawniają niezwykłość jej konstytucyjnego kształtu. W przeciwieństwie do wielu państw europejskich, dryfujących w tym czasie ku absolutyzmowi, szesnastowieczna Rzeczpospolita utrwalała mo­

del demokracji szlacheckiej z podziałem władz (ostatecznie zadeklarowanym w konstytucji nihil novi z 1505 r.) i monarchą o statusie zbliżonym do nowoczesnego prezydenta. Podobnie jak ten ostatni, także i król Polski mógł być - zgodnie z artykułami henrykowskimi - pod­

dany oskarżeniu analogicznemu do dzisiejszego impeachmentu w razie naruszenia przezeń prawa.

Z kolei nabyte przez szlachtę jeszcze w wieku XV rozliczne przywileje czyniły z tej grupy społecznej rodzaj społeczeństwa obywatelskiego, zdolnego oprzeć się arbitralnym zakusom władzy wykonawczej. Dzięki wolnościom obywatelskim gwarantowanym przez przywileje, zwłaszcza warecki (1422) i jedlnieńsko-krakowski (1430-1433) - szlachcic nie mógł być po­

zbawiony ani majątku, ani wolności osobistej bez zastosowania doń procedur przewidzianych przez prawo. Od czasu zaś konfederacji warszawskiej (1572) oraz artykułów henrykowskich (1573) - cieszył się wolnością religijną. Przywilej nieszawski (1454) z kolei gwarantował mu autentyczny udział w sprawowaniu władzy państwowej. Przywileje te ograniczone były co prawda do stanu nobilitas, lecz Rzeczpospolita posiadała wówczas najliczniejszą szlachtę w Europie; duży więc segment społeczeństwa miał - jak na standardy tamtych czasów - po­

czucie współrządzenia państwem.

Artykuł akcentuje elementy samorządności w mechanizmie ustrojowym Republiki szla­

checkiej (elekcja viritim, zmaterializowanie demokracji bezpośredniej w funkcjonowaniu sej­

108 Kazimierz

Baran

miku szlacheckiego). Omawia także dezintegrację ustrojową państwa szlacheckiego, rysującą się coraz wyraźniej między połową XVII a połową XVIII wieku.

W końcowej analizie siedemnastowiecznych prób wydźwignięcia Rzeczypospolitej z ma­

razmu ustrojowego akcent położono na te osiągnięcia Konstytucji 3 maja 1791 roku, które przyciągać mogą szczególną uwagę zachodnioeuropejskiego historyka. Konstytucja ta bo­

wiem na wzór brytyjskiej określiła króla jako tego, „who can do no wrong”, gdyż każdy jego akt wykonawczy wymaga kontrasygnaty ministra. Nadto zaś stworzyła ona pierwszy w Euro­

pie kontynentalnej prototyp wotum nieufności („[...] gdyby większość dwóch trzecich części wotów sekretnych obydwóch izb złączonych na sejmie ministra [...] odmiany żądała, Król natychmiast na jego miejsce innego nominować powinien”).

Na marginesie rozważań poświęconych osobliwości ustrojowej dawnej Rzeczypospolitej zwrócono też pewną uwagę na kulturę typu Latinitas, jaka kształtowała „the frame of mind”

ówczesnej szlachty. Wychowana w sprawnie funkcjonujących kolegiach jezuickich, szlachta ta nader biegle posługiwała się łaciną. Znała też znakomicie kulturę antyku. Połączona z war­

tościami chrześcijańskimi, ta ostatnia pozwalała w dramatycznych momentach odwoływać się co światlejszym przedstawicielom uprzywilejowanego stanu do takich cnót jak odwaga, honor, obrona chrześcijaństwa, oddanie sprawom ojczyzny itp. Wartości te legły niewątpliwie także u podstaw wiktorii wiedeńskiej z 1683 roku czy konfederacji barskiej (1768-1772), bę­

dącej rodzajem pierwszej narodowej insurekcji.