Before discussing the law creation process in the old-time Polish-Lithuanian Republic it is worthwhile to make a few remarks on the constitutional developments of the country. In its oldest history Poland went through typical developmental stages: of the patrimonial State, of the State of feudal disintegration and, from the early 14[th] century - the State that, under the last rulers of the Piast dynasty, experienced the process of reintegration. From the end of the 14[th] century the specificity of Polish historical developments induced the monarch to start forming the ever tighter bond with the mass of Polish nobility because it was on them that the Kings mostly relied while re-unifying the state. This led to the granting on the nobles a series of privileges, above all those that were of a nation-wide scope, i. e. those that applied to the entire nobiliary nation (naród szlachecki) and not only to the specific individuals[1]. From the final decades of the 14[th] century Poland was united with Lithuania. The union that was formed on that occasion was the personal one. It was expected to survive so long as the monarch of the Lithuanian dynastic line, that of Jagiello house, ruled the country. However by 1569 the personal union was transformed into the constitutional one and from that time on, irrespective of who was the king of the united organism, the union was continued and the parliament which was developing throughout the 15[th] century emerged as a two-housed structure at its final decade.
In the meantime a series of privilegies conferred on the nobles allowed them to acquire considerable rights and particularly a large share in the government of the country. In addition the conflict - quite sharp at the beginning - between the upper-positioned nobiliary milieu (the magnates) and the mass of the middle nobles ended with the victory of the latter. As a result, an egalitarian and republican spirit was smuggled into the doctrine describing the constitutional position of nobiliary nation. The mass of the middle nobles could demand that they be put on the footing equal to that on which their more potential nobility brethren were located. This found its reflection in the slogan: Szlachcic na zagrodzie równy wojewodzie (a poor noble possessionatus being equal to the voievode, i. e. to the highly-positioned State functionary)[2].
The constitutional developments led also to the limitation of the King's position particularly when the Nihil Novi Statute pf 1505 provided for the separation of powers and proclaimed that the power to legislate was vested in the two-housed Seym. The executive power was exercised by the monarch. What was left with the King in the area of legislation was only his traditionally respected rights to issue regulations referring to royal towns, ethnic minorities, vassal states, mining law, etc.
In the 1570s the extinction of the Jagiellonian line and the interregnum that followed thereafter, provided the nobility nation with an opportunity to further shape the Constitution of the country along the democratic and republican lines. According to the Henrician Articles of 1573, which functioned as a kind of Bill of Rights of the nobiliary Republic, not only the earlier nobiliary privileges were confirmed but a series of new constitutional provisions were added. Among them there was the principle of regular convening of the Seym whose role in legislation and in dealing with all important matters of the State was emphasized. Likewise, there was introduced a free election of the monarch. The entire nobility were entitled to take part in it. The King was elected for life. He could not leave the throne to his offspring. The Articles provided also for the possibility of impeaching the monarch and dethroning him in case he violated the law. An important provision by which the nobiliary privileges were extended was also that which guaranteed religious freedom to be enjoyed by the nobles. In that respect the Henrician Articles incorporated into their text the formula of the compromise that was arrived at by the nobles of various Christian denominations on occasion of so called Warsaw Confederation. The text of the latter read: And since in the Commonwealth there is considerable dissidium in causa religionis christianae, we will prevent this so that for this reason no harmful sedition between people should arise, which we can see in other kingdoms, and we promise this together, pro nobis et successoribus nostris in perpetuum, sub vinculo iuramenti, fide, honore et conscientiis nostris; although some of us are dissidentes de religione, peace between us will be maintained and for various faiths and differences in the Churches no blood shall be spilt and we will not punish confiscatione bonorum, with kind heart, carceribus et exilio, and we will not help any sovereignty or office to undertake such a process. And also, should anyone wish to shed blood somewhere, ex iusta causa, all of us should stand against it, even if on the pretext of a decree or through some legal ploy, as anyone wishes.[3]
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The constitutional shape of the country, thus outlined in the Henrician Articles, survived with certain modifications, until the fall of the Republic which occurred at the declining years of the 18[th] century. What happened in the meantime however was the deterioration of the constitutional machinery of the Respublica. Wrong practices stole into its political life. The symptoms if this deterioration, detectable in the mid-17[th] century, made themselves felt for a series of decades that followed.
From the 1760s remarkable attempts to improve the constitutional mechanism of the Republic were made. Inspired by the ideas of the Enlightenment, these attempts reached their climax in the Constitution of 3 May 1791. The Constitution provided for the effective governmental mechanism resembling that functioning in Great Britain of the time. Like in the British system, thus also in the Polish Constitution the King, in whom the executive power was vested, was located at the position of the one "who can do no wrong". He was no longer an impeachable monarch. At the same time however all his executive acts through which he tried to implement the Seym-produced laws, had to be endorsed by his ministers. The latter assumed full responsibility for the governmental policy. In that respect the Constitution expressis verbis introduced the vote of no confidence, thereby smuggling the first so express introduction of this device in Continental Europe. In addition the Constitution tried to extend the substantial civic rights to the social estates other than the nobles.
Unfortunately all these efforts designed to protect the improved republicanism in that part of Europe ended with failure since the three absolutely-ruled empires that surrounded Poland -Lithuania were determined to enlarge their territories at the coast of the Respublica.[4]
As has been said in the 15[th] century Poland there was observed the process of forming the parliament referred to as the Seym. At the end of the 15[th] century the Seym assumed the shape of a two-housed structure. The Seym engaged in the law creating activities. Their result were the constitutiones or uchwaly. These were the names assigned to statutory laws adopted by the parliamentary houses. The constitutiones were believed to only enlarge, and sometimes to change, the scope of the already existing prawo pospolite: commonly applied law (ius commune). The norms of the latter regulated the organization of the State structure and the legal status of social groups that
inhabited the country. Its norms applied therefore to large segments of the community or to everybody. Particularly the privileges (those of nation-wide dimension and not the individuals ones) conferred on the nobles were classified into the prawo pospolite. The sources of this system of law were both of statutory as well as customary law nature. Within the corpus of prawo pospolite there was also the law applied in courts. In this respect the norms of this law varied depending on the social estate to which they applied[5].
The prawo pospolite was considered to be a stabile corpus of firmly-rooted norms which came to being in historical process. Therefore its change or enlargement required the consent of nobiliary representatives sitting in the parliaments.
Since the privileges granted to the nobles made up a particularly important part of the discussed corpus of law it is advisable to briefly survey those most important among them. In the Privilege of Kosice of 1374 the monarch promised the nobles not to impose on their landed estates the taxation larger than two groshi per a certain unit of land. If therefore he ever planned to exact larger sums, exceeding the aforementioned amount, he would have to seek the consent of the nobles convened at their provincial assemblies. In 1422 in the Privilege of Czerwiensk the monarch guaranteed to the nobles the inviolability of their estates. The latter could not be confiscated without due process of law.[6] The inviolability of person was, in its turn, conferred on the nobles in the Privilege of Jedlnia and Cracow, 1430-1433. The monarch promised not to arrest or imprison the nobleman possessionatus without due process of law. Only those suspected of committing particularly serious crimes could be detained immediately. Naturally they would have to be brought to the court of law without delay.[7]
Of particular significance was also the Privilege of Nieszawa of 1454. According to it the monarch again promised not to raise taxes, nor to call levy in mass, nor to legislate without first obtaining thereon the consent of the nobility as granted to the ruler by the nobles at the Seymiks (Dietines) convened for that occasion. Norman Davies is right to observe that from that point on, the nobles of each province met together at frequent intervals to conduct their own political business, and to consider the royal policy. When in the course of time, the general Seym and the Crown Tribunal were established, each of the dietines appointed representatives to pursue its interests in the activities of the central legislature and judiciary.[8]
Later the nobility's legislative supremacy in the Seym allowed them to secure a particularly privileged position contrasting with that which was available to other social strata. Thus at the end of the 15[th] century the nobles monopolized the
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holding of landed estates in the countryside and guaranteed for themselves the appointments in the Church. And since they were ever more involved in agricultural production, particularly beneficial at that time, they managed to introduce the laws that tied peasants to the land[9]. Last but not least, in the 16[th] century they managed to attain a particularly privileged position in commerce. The Nobility was freed from duty on goods for their own use. In the dietines, they controlled the multifarious systems of weights and measures, and regulated prices. From 1573, the Nobility possessed the exclusive right to exploit the timber, potash and minerals deriving from their land. They had always bought salt at preferential rates. Although they themselves were not expected to engage in commerce - and constitutions of 1633 and 1677 specifically forbade them to do so - the entire economic life of society was organized to their interest.[10]
The emergence of the two-housed Polish Seym coincided with a series of occurrences which led to the determining of the Seym's legislative competence in the way favorable to the middle noble class. At the very outset of the 16[th] century the latter found themselves in conflict with the monarch and the senators recruited from the powerful magnate clans. In the Privilege of Mielnik of 1501 those upper-positioned nobles who formed the Senate managed to persuade the monarch to vest in them a decisive voice in managing the ship of the State. This led to the revolt of the middle class nobility because the democratic and egalitarian principles were sufficiently consolidated among them. Therefore the provisions of Mielnik were - from their point of view - absolutely unacceptable. In the Seym held in Radom in 1505 the representatives of the lower house radically demanded that the Mielnik provisions be done away with. And indeed the pressure of deputies was successful. In the new law that was passed and that used to be referred to as the Nihil Novi Statute it was proclaimed that nothing new (hence Nihil Novi as the name of the law) which would be detrimental to the Republic or would cause harm to anybody or which would tend toward changing the commonly-applied law and public liberty - may be adopted without there being a joint consent obtained therefore as given by the Senators and the lower house deputies.[11]
Thus the Nihil Novi Statute provided for the general outline of the Seym's competence. The major legislative power that previously was within the competence of the monarch and the Senate, was, in 1505, taken over by the Seym. W. Uruszczak is right when he argues that by 1505 the State turned from an oligarchic monarchy of the first Jagiellons into a modern parliamentary monarchy.[12]
Anyway the text of the Nihil Novi Statute shows that the modification of the already existing commonly-applied law (prawo pospolite) and also the dealing with what in whatever way was connected with the scope of liberties of the nobiliary nation - lay within the competence of senators and the deputies of the nobility sitting in the parliament.
The extinction of the Jagiellonian line in the early 1570s provided the mass of the nobles with an opportunity to make the foundations of constitutional law of the Respublica more precise and complete. The Henrician Articles that were issued on that occasion in 1573 confirmed the above outlined scope of the Seym's competence adding thereto some more precise formulas. Apart from exercising exclusive right to modify the prawo pospolite the Seym was defined as the organ that was competent to outline the major directives of foreign policy of the Crown and to exercise a control over the King and his ministers. And specifically the Minister of Treasury had to present the accounts to the Seym's inspection. The so called Senators-residents, appointed by the Seym, were charged with the business to supervise the King's public activities. Obviously the problems of wars, calling levy in mass as well as regulation of the judiciary, the taxes, the export and import duties -were all within the competence of the legislative body. It was also assumed that the King could make the appointments to the major State offices only at the Seym. In addition, the Seym was considered to be the right agency to try the judicial cases of utmost potence.[13]
While relying on the earlier tradition it might be said that only a few lines of legislation were left with the King. These lines comprised, among others, the monarch's right to issue norms referring to royal cities and those referring to ethnic and religious minorities like Jews or Armenians. Within the monarch's competence there fell also the regulation of the mining law as well as the legislation referring to the vassal states of the Republic. Likewise, the questions, previously not regulated by the commonly-applied law, were believed to lie within the monarch's prerogative power. In that respect however the King seemed to be on the losing side because the Seym showed the tendency toward usurping the areas which might be regarded as those belonging to the monarch. The case of the export of nitrate may provide a good example illustrative of how this process
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progressed. Nitrate was the material needed for the production of explosives. It was indispensable in the circumstances of potential wars. Since there was no statutory law referring to the problem of the securing of sufficient quantity of this material the monarch in 1595, while operating within his prerogative, issued a mandate forbidding the export of nitrate.[14] However soon after, in 1620, during the war hostilities against the Turkes, the Seym took over the problem and in its resolution introduced a ban on the export of nitrate. This demonstrates how, through the Seym's practical maneuvers, the regulation of certain questions might slip away from the competence of the monarch.[15]
While returning to the text of the Henrician Articles themselves, we might emphasize that they introduced several new devices of constitutional value. They provided for the regular convening of the Seym (every two years for the six weeks' session which might be prolonged). Likewise, they provided for the monarch who was responsible since he could be impeached if he violated the law. On such occasion the nobiliary nation could renounce their allegiance to him and dethrone him. In the early 17[th] century the detailed procedure on bringing the monarch to accountability was adopted.
The Seym's legislative activities assumed the form of various acts adopted by the legislative body. Those among them that might be closest to the present day idea of statutory law were the constitutiones. The statutory laws were also detectable under the name of uchwaly and among them - the uchwaly podatkowe (which referred to taxation). In the hierarchy of norms the position of uchwaly was considered to be inferior to constitutiones. Nevertheless they were adopted while following the procedure which was identic with that followed in case of the constitutiones and the political commentaries of the early 17[th] century identified them with the regular statutory laws.[16]
The constitutiones were split into the public and private ones. The former were those that were of public nature and applied to everybody or at least to the inhabitants of a certain region while the latter were of private character (konstytucje prywatne). They tried to settle problems referring to specific individuals (their nobilitations, reversal of infamy imposed on someone, restoring someone's good name, rewards granted to a nobleman distinguished by some military attainments etc.).[17]
The legislative initiative was vested in all participants of the Seym, i. e. in the monarch, in the Senate and in the ziemskie deputies who represented the nobility brethren of the respective provinces referred to as ziemias (also województwas). It was exactly the Seymik that functioned as the assembly at which the local nobles used to rally before the convening of the Seym.[18]
Throughout the 16[th] century there grew among the nobles the belief that these were they who made up the sovereign power in the State.[19] Norman Davies rightly observed that the nobility regarded themselves as the supreme authority in the state, and considered the dietines to be a form of the senior branch of the legislative process. The business of the central government occupied only one part of their deliberations, and not necessarily the most important one. They received the proposals of the King, of Sejm, or of the officers-of-state, with strong reservations as to their own competence, and did not feel bound to obey or to conform. Their envoys were expected to stick closely to their instructions and were required on oath to swear "to Almighty God, Three-in-One, that I shall defend our freedom, and to admit no laws which are contrary to the instructions.[20]
What facilitated the strengthening of the idea that sovereign political and legislative power was vested in the nobility were the long interregna that followed the extinction of the Jagiellons. In the first 15 years following the death of the last monarch of this line the interregna totaled over three years. As long as the interregna lasted, Sejmiks as local assembles as well as interregnal Sejm had no superior organ over them. They provided for all valid legal norms and saw to their implementation. As a result certain matters already anchored in the mechanism of the Commonwealth drifted to the foreground. Specifically the role of provinces called "ziemie" and "województwa" grew enormously.[21] And consequently the role of the sejmik grew.
The information on the agenda of the approaching Seym reached the Seymik in the form of legacja as brought by the royal envoy. In the legacja the monarch requested the nobility of the respective ziemias to discuss the issues planned to be debated during the Seym sessions and to equip the deputies whom they were expected to elect with the instruction that would allow them to adopt the right position toward the needs of the State. The monarch naturally insisted that the deputies be equipped by their nobility brethren with plena potestas, the one which would give them considerable freedom in adjusting their position to what they believed was reasonable. The research
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shows that even if the deputy was equipped with limited powers the latter mostly referred to financial matters (it was the question of giving consent to the taxes proposed by the Crown). In other matters the deputy was expected to see to it that the measures he consented to during the Seym compromise between his views and those of other deputies.[22]
Apart from legacja that was sent to the Seymik itself the Royal Chancery was also busy sending individual letters to the eminent persons, participants of the Seymik sessions, thereby encouraging them to support the cause outlined in the legacja.
The proceedings of the Seymik were fairly formalized. The legacja itself had to be registered in the Grodzki Court[23]. It was the business of local Starosta - royally appointed Governor - to make the entry of the legacja into the aforementioned records.
The Seymik operated along the lines of direct democracy which meant that all nobles of the province could attend it and have thir share in formulating the Seym's resolutions. In practice obviously the voice of eminent individuals ranked high while that of the ragtag's or landless gentry did not count. Due to the large number of individuals arriving at the Seymik its sessions were frequently organized within the walls of churches (from which the Holy Host had to be removed), in the castles, inns but also in the cemeteries or in open fields. Although formally many thousand noble inhabitants of the province could attend the Seymik in practice the proportion of those who were willing to participate varied from 5 to 10 per cent of potential participants, others being prevented from coming by everyday reasons, like harvest, problems with transportation but also disinterest in political issues.
The sources show that when important question pervaded the nobiliary nation the real number of those attending the Seymik of larger province might amount to several hundred individuals, exceptionally even 1200 participants were recorded. In the periods not affected by particular troubles the Seymik of larger province might assemble some 200 participants. In smaller provinces the number of attendants might be fewer than 100. In slack periods in a small Seymik the number of those who arrived might be limited to several dozen individuals.[24]
The mode of formulating the final resolution and consequently - in case of przedsejmowy Seymik - drafting the instruction for the elected deputy varied depending on the local customs. Generally however when the method "by acclamation" failed the Seymik resorted to kreskowanie, i. e. to counting votes in order to find which opinion obtained the support of majority. As has been said the contents of the instruction - designed to guide the deputy during the Seym debates - could exceed the issues found in the monarch's legacja. The nobility of the province could therefore demonstrate in it their own legislative initiative. Apart from electing the deputy and drafting the instruction for him the Seymik was competent to adopt Lauda which were the law provisions. If they were of the nation-wide dimension they required the approval of the Seym.[25]
At the end of its session the Seymik arrived at its final resolution: the conclusion. Usually a special Committee was formed and assigned the task of validating this conclusion by making an entry (oblatowanie) of it in the records of the Grodzki Court or Grodzki Office. The conclusion certainly included the Seymik-adopted legal norms. In the course of time also the instruction that was drafted for the deputy required being entered into the records.
It might occur that the tumultuous sessions of the Seymik ended with its split and the frustrated minority who were far from accepting the Seymik's resolution registered their protestation in the Court records.
When started with the Seymik's resolution the law-creatings process was further continued at the Seym. Before arriving at the Seym session the Seymik-elected deputies of a certain region (Malopolska, Wielkopolska, Mazovia, Lithuania) used to rally at the so called Seymiki Generalne at which they, together with the senators of their area, tried to work out a joint stance on the proposals made by the monarch. In the mid-17[th] century these regional Seymiks were replaced by the gatherings (so called "sessions of the nations", sesje narodowe) held by the regional groups during the Seym debates[26].
On occasion of the opening of the Seym the monarch had a chance to submit to the joint houses - before they split for separate deliberations - the agenda of the Seym. This agenda included so called propositions from the throne. The latter did not exhaust the legislative initiative since this initiative was vested also in both houses and much of its substance was smuggled by the Seymiks' instructions given to the respective deputies.
The proposals of bills originating in both houses circulated between them. If they originated in the lower house they were followed by a discussion, sometimes fairly heated. In case they were not immediately approved of they were referred to those who supported them with the suggestion to make improvements[27]. Also a special Commission
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might be formed to do the business. The research shows that in such case there might follow repeated readings and repeated remitting for improvement. But if all these efforts proved unsuccessful the proposals for the bill might end in failure. However if they were eventually accepted by the deputies, they travelled to the Senate. The legislative procedure that was followed in the upper house was a specific one. No voting occurred there. The King who presided the Senate used only to seek the advice of the Senators. Therefore he questioned them starting from those who occupied the most eminent positions in the State[28]. The milieu of the Senate was composed of the archbishops and of the bishops of the Catholic Church and the upper-positioned State dignitaries like voivods and castellans. The conclusion of the discussion was the King's although usually he followed the line that was found to be dominant. It is worthy of note that to the proposals accepted by both houses and turned into bills the King was expected to give his assent. The research shows that in this respect his right was not illusionary and he was found sometimes to refuse his assent despite the unpopularity that such move might arouse[29]. It is also worthwhile to note that the bills accepted by both houses were submitted to the Royal Chancery where their texts were given final shape. On the last day of the Seym session they were again resubmitted to the legislative body and read allowed in the presence of the King, the Senators and the lower house deputies. They were treated as one package, a legislative product of the given Seym. If no opposition appeared the constitutiones contained in the package were considered to have been passed[30].
Since the pressure of the last day of the Seym functioning often prevented the obtaining of the absolutely perfect texts of the passed laws therefore at the end of the Seym session - when the debates of the houses had already been closed - the opportunity of further processing of the texts of constitutiones still existed. The constitutiones landed in the hands of the Legislative Commission which was engaged in "levelling" (ucieranie) and stylistically polishing them. This created an opportunity for interfering in their texts. This interference - which might consist in introducing some retouchings into the final text - might a rouse serious protests of the noble representatives who participated in the session. The protests of that type were sometimes registered in the Grodzki Court of the place at which the Seym was held. These protests however remained ineffective.
The problem that is particularly crucial in the discussion of the legislative procedure followed in the old-time Polish-Lithuanian parliament is that of the unanimity required in the lower house for the passing of laws. It was believed that the laws should be adopted sine contradicende, particularly if they interfered with the privilegies of the nobility because in such case there functioned the slogan quod omnes tangit ab omnibus approbari debet[31].
Before the mid-17[th] century, i.e. before visible symptoms of deterioration of the republican Constitution, this common consent-requirement was not interpreted as the requirement of unonymous consent. This means that the common-consent principle was flexibly interpreted. The absence of an acceptance of a certain bill - when manifested by single deputies - particularly when the rest of their colleagues in the delegation of a given province approved of it, could be ignored[32]. On some other occasions, by invoking the arguments of Christian values, common good and solidarity, a lot of successful efforts were made to induce the opponents to join the stance on certain points as adopted by the majority. In exceptional cases when the entire representations of certain provinces abstained from joining the position taken by the majority and the opposing deputies invoked as their argument the instruction with which they were equipped by the Seymik, the monarch resorted to what might be called the dispersed lower house device"[33]. That meant that upon the dissolution of the Seym the King addressed the opposing Seymiks requesting them to change the stance taken by their representative who argued that the instruction they were equipped with prevented them from giving their consent to the specific measure that was the object of debate[34]. The research shows that such requests of the monarch - usually referring to financial problem -were practically never refused.
In rare cases it might also happen that the deputies sent to the Seymiks of a certain region consented to approve of a certain bill while a mass of others assumed an opposing attitude. As a result the law thus adopted was considered to be binding only in the region that voted for it. This was what happened with Formula Processus of 1523 which was a codification of the law of procedure but which was accepted and implemented only in Malopolska (Polonia Minor).[35]
Let it however be observed again that in the law-creating process much depended on the King's diplomatic skills and determination. Therefore Kos-Rabcewicz-Zubkowski is right when he emphasizes that the practice of the Polish Seymy during the sixteenth century was to consider resolutions of the Seym as valid even if opposed by a minority. The king considered the reasons (rationes) submitted by the opposing deputies and decided whether to accept or to reject the opposing view. This was not yet the practice of "liberum veto", allowing one deputy to interrupt the session of the seym. Many
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examples show the adoption of resolutions opposed by a minority. This was possible, as according to the contemporary concept the king created laws (condit leges). The chambers of deputies submitted to the king the resolution of the majority and the opposition submitted reasons for their opposition. The king then decided whether to confirm the resolution of the majority and transform their resolution into law or to agree with the minority and refuse his sanction.[36]
Around the mid-17[th] century and in the decades that followed it the Republic began to run into a series of internal and external difficulties: Khmielnicki's Rebellion, invasion by Sweden, threats from Muscovy etc. This was accompanied by the fall of political morals and led to the deterioration of the previous smooth functioning of constitutional system. From 1652 it was possible for one individual deputy to break off the Seym's session irrevocably on the basis of his free opposing vote (liberum veto)[37]. The reasonable interpretation of common-consent principle turned into the strictly understood unanimity requirement. As a result a series of ineffective Seyms followed. Therefore a lot of problems that should be solved at a central level began to slide down to the local levels. The Seymiks began to take over and deal with a considerable part of important affairs such as taxation, recruitment of soldiers and the like[38]. The remedy that in the course of time began to be applied to heal the spoiled mechanism of the State consisted in convening the Seyms under the slogan of Confederation. The latter meant the armed league formed by the nobles in order to reach a certain goal in some specific circumstances, for instance when the regular constitutional instruments failed to successfully function. The Seym convened under the slogan of Confederation could not be disrupted by liberum veto[39]. In practice the Seyms that were summoned in the second part of the 18[th] century were incessently organized along the lines of Confederation. This guaranteed their effectivenes. On the basis of Confederation there was also convened the Great Seym that functioned for four years (1788-1792) and that embarked upon a fundamental reform of the constitutional system. The reform was carried out through adopting the constitution of 3 May 1791. One of the fundamental points introduced by the Constitution was that reforming the method of adopting laws. The voting by majority was introduced and the liberum veto was eradicated.
As has already been emphasized earlier this 1791 Constitution is worth mentioning for variety of reasons since it inter alia provided for a fairly modern formula of forming the government. The latter was appointed by the monarch who had to take into consideration the fact that the ministerial body should command the majority of the houses. The point was that the Senate and the house of deputies, in their joint session and through secret voting, could demand the dismissal of the minister whom they did not accept. And consequently they could apply the same procedure vis-a-vis the remainder of the governmental staff. The King therefore was forced to form the ministerial body from among those individuals who might count on the support of parliamentary majority. The discussed device was the first introduction of the vote-of-no-confidence in the history of Continental constitutionalism. By that time this mechanism functioned only in the British system[40].
What was responsible for the specificity of the law-creating process in the old-time Polish-Lithuanian Respublica was its constitutional shape based on self-governmental and republican principles. In the lower house of the Seym the laws were passed when among the Seym participants there was attained a common consent to adopt them. In the country that had no absolute monarch and that was organized along self-governmental lines the common consent was particularly needed for the law enforcement. The principle of common consent was flexibly interpreted which secured the smooth operation of the system until the mid-17[th] century. By that time the system began to scroop. The common-consent principle was replaced by the strictly understood unanimity requirement. An interesting comment on the causes of such development was given by Kos-Rabcewicz-Zubkowski. Wrote he: While in England the development of parliamentary practice culminated in the victory of the principles of majority, the changes in Poland resulted in the liberum veto (principle of unanimity). Among the reasons of such an evolution in Poland are the insignificant role of the cities in the Polish Seym, the introduction to the seym (after the union with the Grand Duchy of Lithuania in 1569) of deputies from northern and eastern provinces where the nobility was under greater influence of the magnates than in ethnic Poland, and the elections, after the death of Sigismundus Augustus in 1572, of foreign kings who had not been educated in Poland and so were not able to dominate the Seym as fully as the kings of the Jagellonian dynasty[41]. The fundamental improvement of the spoiled parliamentary mechanism in adopting laws was introduced by the Constitution of 3 May 1791. ■
NOTES
[1] A brief review of the privileges granted to the nobles may be found in: Ludwik Kos-Rabcewicz-Zubkowski, Polish
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constitutional law, in: Polish Law Throughout the Ages, ed. by Wenceslas J. Wagner, Hoover Institution Press, Stanford University, Stanford, California, 1991, p. 224 - 225.
[2] Interesting remarks on the causes of democratic and republican tendencies in Poland's history were made by Norman Davies: The strength of the locality was apparent in Poland from earliest times. Though somewhat less prosperous than its French or German counterpart the Polish locality combined the economic self-sufficiency of European settlements with a degree of isolation comparable to that of Russia. Hence, it has been argued, a diametrically different pattern arose from that pertaining in Muscovy, where the localities were isolated but not economically viable, and where the pooling of resources in a strong, communal organization was essential to survival. In Poland, the inhabitants of the localities could well afford to resist the advances of outside authorities as unwarranted interference in their private affairs. Their typical attitudes would be those of individual freedom, allodial land holding, local pride, and regional patriotism. The opportunities for rulers to construct a successful power base was less than in Western Europe, where settlement was denser and connections between localities were closer, and less again than in Muscovy, where the localities readily submitted to the centre in the interests of protection and mutual supply. Thus, on this crucial question of the relationship of the parts to the whole, the pattern of settlement in Poland has been seen to be quite characteristic even in modern times. The traditional term in Polish for the locality was gniazdo or 'nest". It aptly express the strong sentimental bond, which tied people to the one small area where most of them would spend their entire lives, and where the peasants on the lord's estate felt greater affinity with their immediate neighbours of all classes, than with anyone from outside. Norman Davies, God's Playground, A History of Poland, vol. I, The Origins to 1795, Oxford University Press 2005, p. 44.
[3] The General Confederation of Warsaw, 1573, Pomniki praw czlowieka w historii. Ksiega jubileuszowa Rzecznika Praw Obywatelskich, vol. I, edited by Hubert Wajs, Rafal Witkowski, Warszawa 2008, pp. 106-107.
[4] Waclaw Uruszczak, Historia pahstwa i prawa polskiego, tom I (966-1795), Lex, a Wolter Kluwer business, Warszawa 2013, p. 217; see also Kos-Rabcewicz-Zubkowski, Polish Constitutional Law, p. 249-250.
[5] Uruszczak, Historia, p. 142; Lewandowska-Malec, Izabela Lewandowska-Malec, Sejm Walny Koronny Rzeczypospolitej Obojga Narodów i jego dorobek ustawodawczy (1587-1632), Ksiegarnia Akademicka, Kraków 2004, p. 260. As regards the customary norms they made up the earliest normative system which with the acceptance of Christianity was subjected to modifications. This was inter alia due to the influence of Canon Law which, while viewing the customary provisions from its own perspective used to differentiate between bad and good customs and regard only the latter as consuetudo approbata. Also the monarch through his prerogative competence, censored the customs, thereby eliminating those of its norms that were unacceptable.
[6] Likewise, in order that we might please them by more abundant favors, and also that they might honor us with loyalty and better services, we promise that from this day forward, we will neither possess nor confiscate, nor cause to be possessed or confiscated, the hereditary property of any royal subject, of whatever rank, position, or prominence he may be, or rank he may have been; nor, through us, our officials, or any others, will we visit the penalty of this confiscation, for any illegal or blameworthy act, unless, first, our judges, which we have assigned to the case, together with our bishops and barons, have conducted a full legal inquiry, and second, a sentence has been handed down. The land privilege of Wladyslaw Jagiello granted in Czerwinsk, 1422 (Jacek Jedruch, Constitutions, Elections, and Legislatures of Poland, 1493-1977: a Guide to Their History, New York 1998, p. 417).
[7] Moreover, we promise and pledge that for some impropriety, we will neither seize at once, nor order the seizure of, any propertied native individual; nor shall the same be punished, unless justly convicted through a criminal proceeding. As for jurisdiction and judges, an accused will be tried in the locale of his home, by judges of that same place. Exceptions to the foregoing: the above does not apply in the case of a man caught in the act of stealing or of public crime (viz, arson, voluntary manslaughter, rape of maidens and matrons, pillaging and despoiling of villages), nor in the case of those, who should be unwilling to honor or pay an outstanding debt, bordering on an excessive or criminal amount. The land privilege of Wladyslaw Jagiello granted in Jedlnia, 1430 (Jacek Jedruch, Contitutions, p. 418).
[8] Norman Davies, God's Playground, p. 247-250.
[9] Op. cit., p. 164.
[10] Op. cit., p. 165.
[11] Historia Pahstwa i Prawa Polski, Wybór zródel, X - XX wiek, Wstep i przygotowanie: Lech Grochowski, Andrzej Misiuk, Wydawnictwo Uniwersytetu Warminsko-Mazurskiego, Olsztyn 2003, p. 40.
[12] Waclaw Uruszczak, The Nihil Novi Statute and the General Seym of Radom in 1505, in: Separation of Powers and Parliamentarism. The Past and the Present. Law, Doctrine, Practice, Wydawnictwo Sejmowe, Warszawa 2007, p. 42.
[13] On the details of the Seym's competence after 1573 see Izabela Lewandowska-Malec, Sejm Walny, p. 260.
[14] Op. cit., p. 258.
[15] The sources show that it might be also with the full consent of the monarch himself that the Seym sometimes embarked upon regulating certain problem that previously used to be regulated by the King. What inspired the monarch on such occasions was his search for the support of the Seym in settling some difficult matters, ibidem.
[16] Lewandowska-Malec, Sejm Walny, p. 240-241. The history of uchwaly podatkowe is more complicated, see op. cit. p. 253255.
[17] Op. cit., p. 243-245.
[18] The Seymiks that came into play on that occasion were called the przedsejmowe ones. The point is that, depending on the purpose for which they were called, the Seymiks could assume variety of types. Apart from przedsejmowe there might be also: deputackie, relacyjne, gospodarcze seymiks, see Norman Davies, God's Playground, p. 250.
[19] This had something to do with the so called "Executionist Movement" among the middle nobility. It started to develop in the early 16[th] century and was continued for the next decades. Its advocates demanded among others the strict observation of laws relating to the nobility's privileges as well as the recalling of all Crown estates leased to senators, see op. cit., p. 111.
[20] Op. cit., p. 250.
[21] Kazimierz Baran, Procedure in Polish-Lithuanian parliaments from the sixteenth to eighteenth centuries, Parliaments, Estates and Representation, 22 November 2002, Ashgate Publishing Ltd, Gower House, Croft Road, Hampshire GU 11 3HR, Great Britain © International Commission for the History of Representative and Parliamentary Institutions, 2002, p. 60.
[22] Op. cit., p. 62.
[23] This was the Court of fairly universal scope of competence with the emphasis however on examining the criminal cases.
[24] Op. cit., p. 64.
[25] Juliusz Bardach, Boguslaw Lesnodorski, Michal Pietrzak, Historia ustroju i prawa polskiego, Wydawnictwo Prawne Lexis Nexis, Warszawa 2001, p. 218.
[26] Bardach, Lesnodorski, Pietrzak, op. cit., p. 218.
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[27] Lewandowska - Malec, Seym Walny, p. 472-473.
[28] Op. cit. p. 474-478.
[29] Op. cit. p. 485-486.
[30] Uruszczak, Historia, p. 229.
[31] Op. cit., p. 139-140.
[32] Op. cit. p. 139, see also Lewandowska-Malec, Sejm Walny, p. 481-488.
[33] Baran, Procedure, p. 68.
[34] Ibidem.
[35] Uruszczak, Historia, p. 139.
[36] Kos - Rabcewicz - Zubkowski, Polish Constitutional Law, p. 234-235.
[37] Baran, Procedure, p. 68.
[38] Op. cit. p. 65-66.
[39] Jedrach, Constitutiones, p. 132-138.
[40] For more details on the Polish 3 May 1791 Constitution see Baran, Procedure, p.69; see also Uruszczak, History, p. 214.
[41] Kos-Rabcewicz-Zubkowski, p. 235.
Lábjegyzetek:
[1] The author is a professor, head of department Uniwersytet Jagiellonski, Krakkó.
Visszaugrás
