CONSTITUTIONAL TRADITIONS

The Overview

Polish Constitutional Traditions

THE CONSTITUTION OF MAY 3, 1791

The constitutional history of a country begins when some institutions have been established and when procedures have been implemented to limit the government's power. "Constitutions," wrote Kenneth C. Wheare, "spring from belief in limited government." The process of limiting the king's power began in Poland as early as the fourteenth century; later, Poland became a constitutional monarchy when other major European countries were reinforcing their absolutism. At the end of the sixteenth century Poland with its system of "democracy of the gentry" looked like an island surrounded by monarchies that vested legislative, executive, and judicial power in one ruler. This system contributed to the internal crisis of the Polish commonwealth, which coincided with successful internal reforms in Russia, Prussia, and Austria. Its neighbors were interested in keeping Poland demilitarized, neutralized, and in a state of anarchy. In the eighteenth century a faction of politically mature nobles was formed; this faction was aware of the deficiencies within the Polish political system, and, despite internal opposition, it prepared sound programs of reform. By the end of the eighteenth century the nobles' activity resulted in the adoption of the first written constitution in Europe, one that substantially reformed the Polish political structure.

The Polish constitution of 1791 began with "In the name of God, the one and only in the Holy Trinity." It drew the distinction between Roman Catholicism and "other creeds," and it stated that deviation from Catholicism was recognized as apostasy. It confirmed, however, that "the religious freedom, and protection of the government for other [than Roman Catholic] religions is guaranteed."

Critics often tried to expose the nondemocratic character of the Polish constitution of 1791 and claimed that it was adopted by the nobility, served the interests of this single class, and did not solve crucial social problems. In fact, the constitution did not undermine the monopoly of the nobility's political power, but it introduced the burghers into the political arena and gave peasants better protection of law. The bicentennial comparative studies of the American and Polish first constitutions demonstrate that the traditional attempt to set the democratic American constitution against the nondemocratic Polish act is not justified, and comparison of the addressees of political rights in both constitutions shows much more impressive similarities than are usually admitted.

The critics of the first Polish constitution frequently argued that, despite the declaration that the highest authority was vested in the three powers of government, the whole concept of the distribution, separation, and balances of major governmental branches was not accomplished in the Polish constitutional reform. The Law on Government, as the May 3 constitution was officially called, and a few detailed statues departed from the original concept of checks and balances and granted far superior power in the Seym.

Composed of two chambers, the senate and the chamber of deputies, the Seym held legislative power. Although the king presided over the senate, national sovereignty was vested in the chamber of deputies, which was declared "to be a temple of legislature." All bills were introduced to the lower chamber and then sent to the senate for further debate. The king did not have the right to veto the decisions of the lower chamber, a right that was vested in the senate, and the senate's veto could be overruled by the chamber of deputies in the subsequent session's second ballot. The legislative initiative was vested in the king along with the council of guardians, the deputies, and the local diets. The local diets retained the legislative initiative, but they could no longer vote on local taxes, and their instructions were not binding on deputies to the Seym, who were recognized as representatives of the whole nation. In this way, all legislative power was centralized in the Seym. The constitutionality of its decisions was not subject to any control. The Polish historian of law, Boguslaw Lesnodorski, wrote: "we do not have here [in the concept of the reformed government] the idea of the strict division of powers. There is no balance. There are good foundations for the symocracy of the nobility."

The constitution introduced a system that featured some attributes of parliamentary government. The legislature was recognized as a supreme power. The king, as head of the state, appointed the ministers for two years, but the nominations were to be presented to both chambers of the Seym, which could vote no-confidence in the king's nominees. Also, a two-thirds majority of the joint chambers could dismiss a minister during his two-year tenure. However, the constitution did not provide for any procedure that could dismiss the entire government. The king, as a chief executive officer, was no longer elected. After the death of Stanislas Augustus, the Polish throne was to become hereditary in the House of the Elector of Saxony. The king was not responsible for the parliament, but his decisions (as in the British government) could be exercised through, and on, the advice of ministers who were expected to countersign them.

The constitution provided that executive power be vested in the king and the guardians of law. The guardians did not constitute a formal cabinet; they were to perform the role of the king's council in which the "king's voice was to prevail." Similar to the president in the American system, the king assumed two roles: head of state and head of government.

The Law on Government of May 3, 1791, played a special role in Polish constitutional history. Under Russian pressure, the constitution was abolished by the rebel confederation in 1792 and was followed by the second partition of Poland of January 23, 1793. As advanced by the framers of the constitution, however, the basic principles of the government remained very much...