The Reichstag had also decided to treat the questions of ‘national’ liberty and inter-‘national’ equality as ones of fundamental rights. The Constitutional Committee and the Reichstag plenum found it relatively easy to agree on the basic principle. The plenum rejected, indeed, a first draft which is interesting in that, while it would have put all the languages of the Monarchy on an equality in respect of education and of the ‘outer service’ (i.e., the language used by officials in dealing with the public), it left the language of ‘inner service’ (that used by officials communicating with each other) unmentioned, presumably on the assumption that it would continue to be the German.208 But it ended by agreeing on a more general wording which added the idea of equality of rights to the Pillersdorf draft, but did not particularize how this was to be realized. The paragraph (No. 21) now ran:
All peoples (Volkstämme) of the Empire are equal in rights. Each people has an inviolable right to preserve and cultivate its nationality in general, and its language in particular. The equality of rights in the school, administration and public life of every language in local usage (landesüblich) is guaranteed by the State.
But this amounted only to the marking out of the field, within the limits of which there then followed the manoeuverings for position, which in practice turned round two questions: how should the sub-units of the State be delimited, and what should be the relationship between the central power and the local constituents. For it was the answers given to these questions that would determine the real power-positions of the various nationalities within the Monarchy.
A legend has grown up about the proceedings of the Reichstag in this field, that once escaped from the nefarious influences of the Court, the aristocracy, and other reactionary forces, the peoples of the Monarchy found each other in mutual affection and sweet reasonableness, and would have produced a solution on the basis of which Austria would have lived peaceably, had the reaction not prevented it. Nothing could be further from the truth. The work eventually accomplished by the Reichstag was, indeed, very valuable. But the will to produce it had been generated, not by the absence of the non-democratic forces, but by their too close presence in the background, for everyone in Kremsier was acutely aware that even while they worked, Windisch-Graetz was only awaiting his chance to sweep their work aside.
The Sub-Committee of Five to which the Constitutional Committee had originally assigned this problem had proved unable to reach an agreed draft at all, and the Committee had been obliged to ask them for individual proposals. It took two of these – one from Palacký and one from the German Silesian, Cajetan Mayer, as bases of discussion when it opened its own debates on 22 January.
When these discussions began, each people (sometimes each of several factions of a people) fought for its own cause with unqualified egotism, so that the first proposals were completely irreconcilable with one another.
The peoples to whom the existing Land system was unfavourable tried to get it remodelled in their favour. So the Slovenes (or rather, those of Carniola, for those of Styria and Carinthia were lukewarm) wanted historical boundaries swept aside altogether, and all the Slovene areas of Austria united in a great new Kingdom with its capital at Laibach. The Italians of the Trentino wanted their homeland to be attached to Lombardy-Venetia, or failing that, formed into a separate Crownland. The Ruthenes (going back on the concessions made by them at Prague) wanted a new Land of East Galicia,209 and Palacký, who led the Czechs, began by taking a similar line: he proposed that the Monarchy should be partitioned on national lines, which would have involved the sacrifice by the Czechs of the German districts of Bohemia and Moravia, in exchange for the Slovaks of Hungary (whom he claimed as Czechs).210
On the other hand, the majority nationalities in the mixed Lands regularly refused to let the minorities go. A German Deputy from Bohemia211 suggested giving Galicia and Dalmatia a separate status, and altering the frontiers of the other Lands to make the German areas into a unit, which should then join Germany. But this proposal, although variants of it were, as we shall see,212 taken up by the German nationalist parties many years later, found no favour with his countrymen at this time, outside Bohemia. The German Tiroleans, Styrians and Carinthians would not hear of their Lands being partitioned, nor would the Poles, and his own countrymen did not support Palacký in his proposals, which in any case went beyond the Reichstag’s terms of reference (which did not extend to Hungary); they came down instead on retaining the historic boundaries of Bohemia and Moravia, these two Lands then to be united with Silesia on the alleged authority of the April Majestätsbrief.
As the Germans would not hear of this last proposal, which the Moravians and Silesians also opposed, it was dropped, and since the Czechs, once they had decided to go for the inclusion of the Sudeten Lands, backed the Poles, and refused to support the Italians, or even the Slovenes, a large majority emerged in favour of retaining the existing ‘historic units’, and this was duly decided, with the sole exceptions that the Vorarlberg was to be attached to the Tirol, and Gorizia, Gradiska, Trieste and Istria were to form one Land (the Küstenland, or Littoral). On the other hand, the Committee recommended reinstating the Bukovina as a Crownland, on the interesting argument that if the Roumanians got their own Landtag, their favourable political situation would exercise such an attraction on the Roumanians of the Danubian Provinces that they would wish to join the Monarchy.213 The Italians’ claim for a Crownland of their own in the Trentino was rejected, as was that of the unfortunate Ruthenes. It was, however, recommended on Cajetan Mayer’s proposal that the larger Crownlands should be subdivided into Kreise, delimited on an ethnic basis.214
The all-important decision taken that the structure of the Monarchy should be based on its historical components, the weight of the struggle shifted to the division of powers between the central authority and the Lands. Here, again, each nationality fought for itself. The Germans (those of them, that is to say, who thought in national terms at all, these being chiefly the Viennese and the Sudetic Germans, for the Tiroleans were purely egocentric, the most extreme federalists of all, and the Styrians little better) based their policy on the fact that the Germans were the strongest single nationality in Austria, and were represented in most Lands, but in many of them, only as a minority. They thus fought for a system which should place the effective authority in the hands of a central Government and a Parliament elected on an all-Austrian basis, institutions which they could hope to dominate; when forced to concede the principle of some representation for the Lands, they argued that all Lands were equal in status, so that all must be represented equally. The Poles and Czechs contended for a federalist system with the maximum of authority resting with the governments of the Lands, which would have left them free of central control and have left the Ruthenes and the Sudetic Germans respectively at their mercies. The representation of the Lands in any common institutions should be weighted in accordance with their sizes and populations.
In the course of the prolonged discussions, all parties retreated somewhat from their first and most extreme positions. They agreed to recommend a Parliament of two Houses, the ‘Federal Chamber’ being composed of representatives of the Lands, and deference was paid to the principle of inter-Land equality by the provision that each Land was to be represented in this body by six delegates; but the resultant practical unfairness to the bigger Lands was partially redressed by a proviso that each Kreis should also send one representative. The second Chamber, which was to consist of 360 members, was to be elected on a direct franchise limited to persons paying a minimum of six gulden annually in direct taxation. The respective competences of the Reichstag and the Landtage were not exactly defined, but the Lands were to enjoy a fair, but not inordinate, measure of autonomy, and the Kreise in their turn were to receive enough autonomy to shelter them against the naked tyranny of the Lands. In Lands of mixed nationality arbitral Courts were to be set up to decide disputes on purely national issues.
It was, as we have sa
id, a scheme of considerable merit, which certainly did not mete out general justice (which the Ruthenes most emphatically did not receive), but contained many constructive ideas, and represented a working compromise between the stronger of the innumerable conflicting interests which might have worked out well enough so long as the will to make it work prevailed. It should, however, be emphasized that it was the German Austrians who really (by majority) accepted it with pleasure, and only their historians who praise it warmly, while neither the Czechs nor the Poles, not to mention the Ruthenes and Italians, ever admitted it as anything better than a pis aller.
In any case, its merits were not destined ever to be put to the test. Long before the drafts were ready sentence of death had been secretly pronounced on the Reichstag and all its works.
Several of the Ministers – not Schwarzenberg alone – had from the time of their appointment disliked the alleged Left-wing character of the body, and had complained of various sins by it of omission or commission (including dilatoriness in dealing with the question of the landlords’ compensation under the land reform). Its worst offence, however, lay in its Constitutional proposals. It is hardly imaginable that the proposals for abolishing titles and demoting the Catholic Church could ever have been accepted by a Court backed by an armed force; but what actually sealed the Reichstag’s fate seems to have been its unlucky attempt to declare the people the fount of sovereignty, and to deny that the Emperor bore his crown ‘by Grace of God’. Even constitutionalists like Stadion could not accept this dogma, and although the Reichstag had withdrawn it, it had irrevocably forfeited the confidence of the Government and the Court by ever proposing it. ‘If’, said Windisch-Graetz, ‘they will not hear of the Grace of God, they shall learn of the grace of canon.’215 But even without the offending clause, the Reichstag’s work would have been unacceptable to Francis Joseph and his new advisers, for they were determined on principle to accept no Constitution which derived from the popular will.216 It was a minor point for them that the terms of reference of the Constituent were too narrow for their purposes, since the system planned by them must include Hungary and Lombardy-Venetia.
As early as 20 January the Ministerial Council had taken a formal decision to dissolve the Reichstag and simultaneously to promulgate a Constitution of its own devising, and Stadion, with some assistance from Bach, set about drafting the new document; that another six weeks passed before this was done was due partly to the apparent absurdity of enacting a Constitution to apply to Hungary while Hungary was still unconquered, and partly to the opposition of Windisch-Graetz, who wanted to restore a system resting on the great aristocracy, and had even (as described above) reintroduced such a system as a ‘provisional civilian administration’ in those parts of Hungary which had come under his de facto authority. And Windisch-Graetz had been promised that the new Constitution should not be issued without consulting him. It took painful argument before Schwarzenberg and Stadion could talk the Field-Marshal round, and by the time he yielded it was too late to wait for complete victory in Hungary, for the Constitutional Committee of the Reichstag was nearing the end of its work; in fact, it finished it on 2 March, and a plenary session was to be called immediately which, it had been agreed, was to pass the Committee’s work quickly and proclaim the Constitution on 15 March, the anniversary of Ferdinand’s promise to grant it.
The battle of Kápolna came just in time. It was not much of a victory, for the Hungarians, although they retreated, had done so unmolested. But it was proclaimed, perhaps in good faith, as heralding the end of Hungarian resistance. On the evening of 6 March, Stadion appeared in Kremsier, had the leaders of the Reichstag called together and told them, to their astonishment, that the Emperor had determined to proclaim a Constitution for the entire Monarchy; their own labours had therefore become otiose. The protests of even the conservative members of the Reichstag were so vehement that Stadion himself wavered. He promised to see what could be done, and drove back to Olmütz. But Bach, whom he woke from his sleep at three in the morning, simply answered: ‘Your Excellency knows very well that it’s too late to alter anything now’ – and went to sleep again.
In the morning a proclamation, dated the 4th, appeared, announcing the dissolution of the Reichstag on the ground that it had wasted its time on ‘dangerous theoretical discussions’ instead of completing its work. All Stadion could do for its members was to pull strings with the police to enable the radical ones to escape217 before the constables sent by Schwarzenberg to arrest them arrived. At the same time, the new Constitution was promulgated.
This document differed from the Reichstag’s draft218 in defining the powers of the Crown unambiguously (and extensively). The Monarch had, indeed, to swear to the Constitution, but his powers in the Crown’s traditional fields of foreign relations and defence were almost unlimited. He was supreme commander of the defence forces; he took the decision for war and peace and concluded treaties, with the single reservation that ‘treaties imposing new burdens on the Reich’ had to be approved by the Reichstag. He was head of the executive, and appointed or dismissed Ministers, as well as other public servants. All enactments by him had to be counter-signed by a ‘responsible Minister’, but the definition of ‘responsibility’ was reserved for later legislation. He exercised the legislative power ‘together with’ (im Vereine mit) the Parliament and the Landtage, and Parliament was to be convoked every year; but he had an absolute veto over legislation, and was empowered to dissolve the Reichstag ‘at any time’. If he did so he had, indeed, to convoke its successor within three months, but an important paragraph (no. 87) empowered him, if a case of emergency arose when the Reichstag or a Landtag was not in session, to rule by Order in Council, such enactments having ‘provisional legal effect’, although the ‘reasons and consequences’ of them had afterwards to be ‘submitted’ (dargelegt) to the Reichstag or Landtag. The wording did not, however, make it clear whether the body to which an emergency measure was submitted could invalidate it retroactively. The Emperor was assisted by an advisory council (Reichsrat219), nominated by the Emperor himself.
The proposed Parliament was also a comparatively staid body. It was to consist of two Houses, both composed by election, but the franchise for the Upper House was indirect (it was to be composed of delegates from the Landtage) and for the Lower, comparatively restricted; there was to be one Deputy for every ten thousand electors, the voting qualification being payment of direct taxes to amounts ranging from six to twenty gulden. Voting was open.
For the lower levels, Stadion had at first thought of abolishing the Lands, as political entities, altogether, and making the Kreis the effective unit of local administration. He had been persuaded that such a breach with tradition would cause too much ill-feeling, and therefore adopted for the time being (although hoping to carry through his own change later) the Reichstag’s proposed hierarchy of Land, Kreis (where the size of the Land called for this) and Gemeinde, intercalating above the last-named an innovation of his own, the Bezirk (Rural District), but in compensation abolishing, except in the single case of the Littoral, the Gubernia in which the smaller Lands had been grouped before 1848.220 The Ministries gave their orders direct to the Kreisämter, the Statthalters of the Crownlands thus being little more than decorative figureheads unless the Crownland was too small to justify dividing into Kreise. In such a case, it was given a Landesregierung, which performed the same functions as the Kreis of a larger Land. The Statutes for the Landtage were to be promulgated later.
In interesting contrast to the centralization on the higher levels, the Gemeinde, the basis of the whole structure, was completely self-governing in respect of its own affairs, and its elected President was responsible for securing enforcement of the law of the land. Elected representatives from the Gemeinde Councils formed the Bezirk Council, and representatives of these again, the Kreis Council, so that those units also enjoyed some autonomy. The whole judicial system was now a State service (the Patrimonial Courts disappeared). The
judiciary and the administration were separate, and mutually independent.
The Constitution proper guaranteed all citizens of the Reich equality before the law and equality of admission, given equal capacity, to public office. The nexus subditelae, in all its forms, was expressly abolished. The principle of inter-national and inter-linguistic equality was repeated in the opening words of the Kremsier draft, although omitting the State guarantee of linguistic equality in public life and education. An accompanying Patent, valid this time only for the Austrian Lands, guaranteed all their inhabitants freedom of conscience and of the private practice of their religions, and laid down that the enjoyment of civil and political rights was irrespective of confession. All legally recognized Churches were further entitled to the public and communal practice of their foundations, etc. Knowledge and teaching, expression, the Press, petition, assembly and association were, subject to certain exceptions in the interests of security, free. Other provisions in the generous list related to the inviolability of the person, domicile and the post, etc.
But the real significance of the Constitution, besides its character of an octroi, lay in its pan-Monarchic and strongly centralist character. The Monarch was crowned only once: as Emperor of Austria. There was to be only one citizenship, one legal system and one central Parliament, the Allgemeiner Oesterreichischer Reichstag. The whole Monarchy also constituted a single Customs Union; all internal tariffs were abolished.
To this complete centralization and uniformization there was one real exception, and one nominal one. Lombardy-Venetia was to be given a separate status, to be determined later. It was further stated that ‘the Constitution of Hungary remains in force, with the reservation that those of its provisions which are contrary to the present Imperial Constitution are abrogated, and that equality of rights is assured to every nationality and every locally current language in all fields of public and civic life; a special statute will regulate these questions.’
The Habsburg Empire (1790-1918) Page 65
