The Diet adopted this law on 1 December 1868, under the official designation of ‘Law XLIV of 1868 on the equality of rights of the Nationalities’ (a nemzetiségek egyénjoguság tárgyában).
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Even had the Hungarian Law XII not provided for the introduction in Austria of ‘complete constitutional institutions’, which was more than it could be said to be enjoying under the February Patent, the German Left itself was determined that Austria must receive constitutional liberties not inferior to those which Hungary had secured for herself. The Reichsrat therefore devoted most of the summer and autumn to devising the appropriate legislation, the main results of its efforts being embodied in five laws, which were given the status of ‘fundamental laws’ which could be altered only by a two-thirds majority. These were adopted en bloc, together with the legislation giving effect to the Compromise, on 21 December.
The Government had stood aside from this work (in any case, Beust was sympathetic) and with the Czechs absent and the Poles treating what went on in Vienna as almost irrelevant to themselves, the German Left had had a fairly clear field, their only important opponent being the Emperor himself, who disliked them for their bourgeois origin and their anti-clericalism, and resisted with determination their attempts to limit his control in the fields of foreign relations and defence. At that juncture, however, he had not felt capable of opposing them on as many points as he would have wished, and the ‘December Constitution’, as this corpus of laws was thereafter generally known (it remained in force, with only minor modifications, for the rest of the Monarchy’s lifetime), was therefore in most respects a faithful and complete enough expression of the German Liberals’ wishes, with reservations where the Emperor had dug his heels in.
The Crown in fact emerged with its powers not greatly shorn.
In respect of foreign affairs, the only limitation placed on the Monarch’s discretion was that commercial treaties or treaties involving ‘the Reich’, parts of it, or citizens, in ‘burdens’ or obligations had to be approved by the Reichsrat. The Monarch was declared ‘supreme commander of the armed forces’ without further definition of their nature or of his competences. In most other respects, the Austrian laws followed the provisions of the Stadion Constitution so closely that it is unnecessary to do more here than note the few points, beyond simple changes of wording, made in the interest of clarity, on which it modified that instrument. The term ‘Ministerial responsibility’ received the definition that the Ministry was ‘responsible’ to the Reichsrat for the legality of all measures enacted in its period of office, even if lacking a counter-signature. The defence budget and the determination of the intake of recruits were added to the list of measures for which the consent of the Reichsrat was required. The emergency paragraph was expanded to make abuse of it more difficult: it must not be used to modify the Constitution or to place a lasting burden on the exchequer or to alienate public property, and the validity of a measure taken under it lapsed if it was not laid before the next Parliament within four weeks of its convocation, or if one of the two Houses then rejected it.
On the other hand, the Monarch retained the right of veto over legislation and his right to prorogue or dissolve Parliament, and as in Hungary, no restriction was placed on his choice of Ministers, who were ‘responsible’ to Parliament only in the sense that they could be impeached if they violated the Constitution: they were not bound to obey the wishes of a Parliamentary majority.
Few changes were made in the ‘structural’ field. The Speech from the Throne, when presenting the Reichsrat with the Compromise, had said that this must necessarily be followed ‘by the grant, through agreement in the Reichsrat, of all possible extensions of autonomy to the Kingdoms and Lands’. The Liberals did not want to abuse their position, but they were, after all, centralists. Owing to Kaiserfeld’s influence, the competence of the Reichsrat compared with that of the Landtage was actually slightly reduced by the change that the questions for which the Reichsrat was competent were enumerated, and all others fell automatically to the Landtage. But the essential pattern of the February Patent, the principle that questions affecting all Cis-Leithania came before the central body and local questions before the Landtage, was left unaltered, as were the composition of and franchise for the latter bodies, and the method of composing the Reichsrat of delegates from them, with the emergency procedure of direct elections if a Landtag refused to send its representatives. The bi-cameral composition of the Reichsrat and the composition of the Upper House were left unaltered. Quorums were fixed of one hundred for the Lower House and forty for the Upper.
This time Parliament was not to be done out of a legal inventory of the fundamental rights of the citizen, of which it produced a very imposing list. The Austrian citizen was guaranteed immunity of his person, his property, his domicile and his mails, and freedom of belief, of religious practice (public in the case of the legally recognized Churches178), of speech, of the Press (the censorship was abolished) and of learning and instruction (subject to the general supervision of the State). All citizens were declared equal before the law, and all public offices were open equally to any of them, and the enjoyment of all civil and political rights was expressly declared to be independent of religious confession.
The general law recognized the principles of freedom of association and assembly, but it left the application of the principle to be defined by a special law, and this placed fairly severe limits on both these rights: the authorities had to be notified in advance of public assemblages and could forbid them on grounds of public security, and they could forbid the formation of, or dissolve, an association on the same grounds. Political associations, moreover, were forbidden to found branches, or to combine among themselves.
The principle of national and linguistic equality, recognized in 1848 and reaffirmed in 1849, reappeared in the Kremsier wording, slightly amended and expanded, but still only as an enunciation of principle, the Reichsrat, unlike the Hungarian Parliament, having shrunk from the task of framing interpretative legislation, as beyond its powers, as Paragraph XIX of the Law on the Rights of Citizens, in the following wording:179
All peoples (Volksstämme) of the State enjoy equal rights and every people has an inalienable right to the maintenance and cultivation of its nationality and language.
The equality of rights of all locally current (landesüblich) languages in schools, administration and public life is recognised180 by the State.
In Lands inhabited by several peoples the public educational systems are to be so organised that each of those peoples receives the necessary facilities for education in its own language without being compelled to learn a second language.181
Another law reintroduced the separation of the judiciary from the executive, irremovability of judges, interlocutory procedure in the Courts and trial by jury for serious offences. Another provided for the establishment of an Administrative Court of Appeal to deal with conflicts of competence between public bodies and to hear complaints by citizens of violation of their rights.
A point to which the Left attached particular importance was the liberalisation of the confessional system. The Law on the Rights of Citizens touched on this in the important respect that, without mentioning the Jews, it in fact removed all the inequalities to which they had been subject. The Liberals wanted to go much further and to have the Concordat revised radically, and Beust (himself a Protestant) also held that some revision of it would be necessary. Francis Joseph’s heart was entirely with the Catholic party, but in view of the strong feelings of the Parliamentary majority, and also of the international situation, he agreed that some concessions were necessary. He sent an emissary to the Holy See with a message to that effect, and publicly rebuked his Bishops for failing to support his endeavours to solve the Confessional problem ‘in a spirit of conciliation and concession’. Meanwhile, the Lower House, before adjourning, sent up to its sister body two more Bills which directly contradicted important provisions of the Concordat: o
ne, to restore the Josephinian marriage law, making marriage again a civil contract’182 the other to place the control of the education in the hands of the lay arm, the Reich, Lands, etc., being responsible for higher and secondary establishments, and the communes for elementary.183
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The Monarchy’s new Defence Law, although it became law only in the Parliamentary period, being adopted by the two Parliaments (by the Austrian with much more difficulty than by the Hungarian) in December 1868 and coming into force in 1869, is so truly a part of the general settlement that this is the proper place to describe its provisions.184 It laid down the principle of universal obligatory service for all able-bodied male subjects of the Monarchy. The term of service was set at twelve years, the first three of them with the colours, and the next seven with the reserves. The Landwehr and Honvédség were composed partly of regular soldiers passing their last two years of service in these formations, partly of members of the annual intake of recruits surplus to the requirements of the regular army. The number of recruits actually required from Austria and Hungary respectively was to be settled decennially in advance, by negotiation between the two Parliaments, the numbers to be proportionate to the populations of the two countries. For the first decennial period, the number was to be that required to give a war strength of 800,000 for the regular army and 100,000 each for the Landwehr and the Honvédség, and the first annual contingents were fixed at 95,474 (54,541 from Austria and 40,933 from Hungary) for the regular army, 10,400 for the Landwehr185 and 12,500 for the Honvédség.
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The conclusion of the Compromise also made it necessary to change the nomenclature of the Monarchy and its central organs and services.
In a letter to Beust, dated 14 November 1868, Francis Joseph informed him that he proposed to entitle himself in the future ‘Emperor of Austria, King of Bohemia, etc. and Apostolic King of Hungary; for short, Emperor of Austria and Apostolic King of Hungary’, with the descriptions ‘H.M. the Emperor and King’ or ‘His Imperial and Royal’ (k. und k.) Apostolic Majesty’. His dominions were to be known as the ‘Austro-Hungarian Monarchy’ or ‘Austro-Hungarian Empire’ (Reich), alternatively. The word still displeased the Hungarians, and these names were eventually dropped in favour of the simple ‘Austria-Hungary’.
The central services now became kaiserlich königlich (Imperial-Royal, the kaiserlich referring to the Gesammtmonarchie, the königlich to Hungary. In 1889 the word und was inserted in the nomenclature of the armed forces, which thus became k. und k., and in 1895 the ‘and’ was inserted in the title of the Foreign Minister, who now became ‘Minister of the Imperial and Royal House’. The title of Reichskanzler, bestowed on Beust at his own request to put him on a level with Bismarck, was in any case not renewed, and of the two other ‘common’ Ministers appointed in 1867, in each case as Reichsminister, the Common Finance Minister lost the ‘Reichs’ as early as 1868; he and his portfolio were thereafter always known simply as ‘common’ (gameinsamer, közös). The Minister of War remained Reichskriegsminister until 1911, when he, too, became k. und k.
This still left the Western half of the Monarchy without a name, for Francis and his successors had never ruled over an ‘Austria’ composed of these territories, and the champions of Bohemia’s State rights, not to mention the Poles, would never admit the existence of such a unit. These Lands therefore continued up to 1917 to bear no other official name than that of ‘the Kingdoms and Lands represented in the Reichsrat’ (the word ‘Reichsrat’ was of course itself tendentious, but seems to have got by), or for short, unofficially, as Cis-Leithania,186 writers and speakers who found themselves forced to use this name revenging themselves by calling the other half of the Monarchy Trans-Leithania. The demand for the introduction of the name ‘Austria’ as official denomination of these territories figured regularly in the programmes of German National Parties, and in 1917 the Emperor Charles sanctioned the change. This ‘Austria’ had a life-span of only one year.
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As we have seen, these two main ‘Constitutions’ still left the Crown in a very strong position de jure, and de facto it was even stronger, especially in the Western half of the Monarchy. In spite of its wording, Law XII does not seem to have been meant to assert any claim to impose a Ministerial or Parliamentary control over the Crown’s general conduct of foreign policy, but only, like the Austrian law, to make commercial treaties and such-like subject to Parliamentary consent.187 The Delegations did regularly discuss such treaties, and difficult enough they used to find it to reach agreement on them. The Monarch’s freedom to conduct his own foreign policy in the broader sense was in any case rendered practically complete by the unlimited freedom enjoyed by him in the appointment, retention or dismissal of his Foreign Minister. Francis Joseph always insisted on these rights,188 and he never felt himself bound to take any notice whatever if either Parliament disapproved of any action by his Minister.189 He was not entirely indifferent to the opinion of others, and the idea that the Monarch should have advisers (whose opinion he was not bound to follow) was familiar to him, and did not seem to him incompatible with his own absolute powers. In the earlier years of the period now opening it was his habit to submit questions of the highest importance to Crown Councils attended by the three Common Ministers, the two Ministers President, and sometimes other individuals. It may, however, be doubted whether over these questions he ever entirely shed the mental attitude expressed in his remark to Rechberg, quoted above.190
In the first years after 1867, Francis Joseph still conducted many of the top-level negotiations himself. Later, he left more to his Ministers. Aehrenthal once or twice convoked ‘Conferences of the Common Ministers’, which, again, were attended by the two Ministers President, perhaps also by the Chief of the General Staff. These Conferences became common after July 1914.191 The Ministers President, if forceful characters, then really exercised an influence on the Monarchy’s foreign policy, and Burian, who was Foreign Minister in the First World War, complains how difficult this made his task.192 Even then, Francis Joseph had the last word: the Foreign Minister took the Council’s decision to him, and he did not regard himself as bound to accept it.
Francis Joseph never admitted anyone’s right to question his ‘reserved rights’ (as enumerated in Law XII) in the military field, although he was sometimes driven to accept interpretations of them which would not have been his own. The competence of the Reichsrat or the Hungarian Diet to vote the Budget and the intake of recruits was, on the other hand, a real one, although the latter could, owing to the provisions of the Army Service Law, be exercised only at the end of each decennial period. Cases of conflict between the Crown and the legislatures were thus possible in this field, as in others in which the legislatures enjoyed a voice, and where they did occur, the difference in the real relationship between the executive and the legislatures in the two halves of the Monarchy became operative.
That the Crown had no power to veto legislation in Hungary was of little practical importance, for the unofficial right of ‘preliminary sanction’ filled the gap. In either half, the Monarch was equally entitled to appoint the Minister President of his choice and to retain him in office in face of an adverse Parliamentary majority. But the difference in the constitutional legislation of the two countries, and still more, differences of a more pragmatic kind, made it harder for him to govern against the will of Parliament in Hungary, than in Austria.
In Austria, if the Reichsrat was not in session (nicht versammelt), the Government was legally entitled to enact necessary measures under the ‘emergency Paragraph’ (Para. 14), and although such measures were only ‘provisional’, and required endorsement by the Reichsrat when it did meet, there is no case on record of the Reichrat’s refusing its retrospective endorsement. The immense complexity of parties and interests represented in the Reichsrat, and the ingrained tradition of subservience to the Crown, made it certain that the Crown would always get its way, and seldom with much difficulty. On the one occa
sion on which a Party on which a Government rested refused to vote a military budget, out of hostility to Francis Joseph’s foreign policy, the Government fell, the Party was relegated to the Opposition, and the policy was pursued. Usually, if an adverse vote threatened, one or another Landtag was manipulated until the threat vanished.
In Hungary, if a Budget was not voted within the year, a situation called by the lawyers ex lex came into being. Any demands by the Government for taxation or recruits then lacked legal sanction, and the Counties and autonomous municipalities were within their legal rights in refusing to comply with them. The Hungarian tradition of resistance to Vienna, especially over these questions, made them actually enjoy doing so. Here, too, the Crown could mobilize enough forces to be sure of coming out top in the end, but the process was a painful and arduous one. In Hungary it was really difficult to govern without a Parliamentary majority; in Austria such a majority was nothing more than a convenience.
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The Compromise was not, even in intention, a general settlement of the problem of the Monarchy, still less, of that of Central Europe. It was an ad hoc agreement between Francis Joseph and the Hungarian leaders, other parties intervening with more or less effect, under which each ‘compromised’ by making certain sacrifices of rights and aspirations in the interests of security.
The principals to the transaction did not themselves regard it as ideal. Each thought the price of it excessive. It was, of course, still more unpopular with those who had hoped for a different structural arrangement for the Monarchy: the Hungarian Left, the centralist Germans, the Czech partisans of Austro-Slavism formed round a nucleus of Bohemian State rights, the Croat Trialists, the Hungarian Nationalities opposed to the idea of the unitary Hungarian State.
Any of the alternative plans advocated in these various quarters would have satisfied certain ambitions which the Compromise disappointed; most of them would have avoided some hardships and injustices which the Dualist system inflicted. But before we condemn Dualism on that ground we must be clear that the tangle of claims, ethnic, historical and the rest, in the Monarchy was so unutterably complex, many of them so flatly irreconcilable with each other, that no conceivable settlement could have done justice to all equitable cases, still less, satisfied all wishes. Any possible alternative to that of 1867 would have created other discontents, inflicted other injustices, and the real touchstone by which Dualism must be judged is not whether it was good, but whether it was better (or less bad) than the possible alternatives to it.
The Habsburg Empire (1790-1918) Page 88
