Prussian Constitution (1848/1850)
The constitution for the Prussian state of 1848 was inspected during the constitutionalism on 5 December 1848 in response to the March revolution in Berlin from Prussian King Friedrich Wilhelm IV. For the entire Prussian state imposed . Although not, as planned, agreed between the King and the National Assembly , the constitution adopted many liberal positions for the first time on German soil, a large catalog of basic rights and the introduction of jury courts combined with the task of ensuring legal security and control of the monarch .
Neither the acceptance of the constitution nor the later reforms should hide the fact that Prussia was still far from a democratic state order . The king had an absolute veto against laws. The separation of powers was limited by the case law could be circumvented by the monarch and the military had to be called a state within a state. The three-class suffrage severely restricted the political participation of the middle and lower classes.
However, these points of criticism of the constitution must also be viewed against the background of the political and social situation after the revolution of 1848 . So it is understandable that for many citizens a “semi-liberal” constitution was preferable to a further state of emergency.
Article 13 of the German Federal Act of the German Confederation of 1815 stipulated that each member state of the federal government must have its own constitution (" A state constitution will be in place in all federal states "). This also applied to Prussia . The drafting of a constitutional charter for the Prussian state was delayed due to the negative attitude of the Prussian kings Friedrich Wilhelm III. (Constitutional promises of 1810 and 1815 had remained unfulfilled) and Friedrich Wilhelm IV. , Who invoked his divine grace .
The constitution, on the other hand, must be viewed as a reaction to the revolutionary events in Germany in general and in Berlin in particular. Until mid-March 1848, in contrast to other German states and especially in contrast to France , Prussia was “only partially [...] covered by the revolutionary movement”. Up until this time, the king pursued a policy of small concessions to the liberal zeitgeist to prevent a revolution. In this context, for example, the promise of the periodic convocation of the state parliament on March 6, 1848 can be classified, even if this promise came “when it was already too late” and its effect was no longer as expected.
After the fall of Metternich , the Berlin Democrats called for a large demonstration in Berlin on March 18. Under the pressure of events, Friedrich Wilhelm IV granted freedom of the press , issued a patent for “accelerating the convening of the united state parliament” and demanded far-reaching liberal reforms. Nevertheless, the demonstration got out of control, soldiers intervened, shots were fired, and a barricade fight began. The king was forced to announce on March 19 that after the barricades had been removed, "all streets and squares should be cleared by the troops immediately".
A proclamation by the king in the Allgemeine Preußische Zeitung on March 22nd promised far-reaching concessions to the zeitgeist. The National Assembly, indirectly elected according to the same electoral law as the Prussian representatives of the Frankfurt National Assembly , was commissioned by Friedrich Wilhelm IV to submit a constitution for agreement. The desired cooperation between the Prussian National Assembly and the Royal Prussian Ministry failed due to the different ideas of the King or the Ministry and the members of the National Assembly. On July 26th, they presented a draft constitution, the so-called " Charte Waldeck ", which among other things called for the abolition of the royal right of veto , would have meant the transition of Prussia to a constitutional monarchy and which he, as "the King declared to the Prime Minister [e] [...] 'would never accept under any conditions' ”.
At the same time since the March Revolution , the reactionary forces around the king grew stronger, which was already evident from the appointment of the conservative Count Friedrich Wilhelm Graf von Brandenburg as successor to Prime Minister Ernst von Pfuel against the will of the National Assembly. On November 9th, the National Assembly was adjourned "for your own safety" and relocated to Brandenburg.
Less than a month later, on December 5, after intensive revision of the previous draft constitution by his government, especially by Otto Theodor von Manteuffel , the king issued a constitution which, to the surprise of the population, adopted many liberal positions and which followed closely the Charte Waldeck leaned. The National Assembly was dissolved. This constitution was partially amended by him in early 1850.
Provisions in the constitutional text
The basic rights of the Prussian constitution of 1848 are, as already evident from the heading (“From the rights of the Prussians”), exclusively civil rights . A law determines the conditions for acquiring and losing citizenship . Article 9 also excludes the loss of civil rights through judgment after a criminal offense ( civil death ).
In Article 4, Prussian citizens are assured of equality before the law and a ban on professional privileges.
The constitution guarantees personal freedom , but this is restricted by the “Law for the Protection of Personal Freedom” with regard to arrests, since the law in question opens up the possibility of protective custody to maintain “public morality, security and tranquility”. The arrested man had to be brought before a judge as soon as possible.
The inviolability of the home is guaranteed. The Prussian citizens are guaranteed the apartment as a private sphere, which can only be restricted by law, for example in cases of a house search . Interferences with the fundamental right to the secrecy of letters , which is also dealt with in Article 6, are - comparable to today's Federal German Article 10 - only permissible by order of a judge, during house searches or arrests. However, there is a contradiction to this in Article 33 of the Constitution: Here, criminal investigations are stipulated as an exceptional case of the confidentiality of letters, and there are also "necessary [..] restrictions" in cases of war.
The constitution guarantees the right of freedom of expression and freedom of the press with some restrictions in Articles 24 to 26. Every Prussian citizen is allowed "to express himself freely by word, writing, printing and graphic representation [..]", any censorship or inhibition of the right to freedom of expression is prohibited. Opinion and press offenses are punishable on the basis of a “special provisional law”. Publishers, printers and distributors of any text, the content of which violates the law, are guaranteed impunity if there is no further complicity.
Freedom of assembly , i.e. the right to peaceful assembly in closed rooms without registration, is guaranteed in Article 27. Restrictions on outdoor gatherings are subject to law. Before it comes into effect, open-air meetings must be registered at least one day in advance. They may be rejected with reference to a threat to “public safety and order”. This means that the organization, for example an outdoor demonstration, is dependent on the interpretation of the authorities, but the rejected person can take action against this decision by means of a petition, because “ all Prussians have the right to petition .” More details, for example regarding the type of Petition and to which chamber it can be addressed are completely absent from the constitutional text.
According to Article 7 of the Constitution, every Prussian has the unconditional right to a “legal judge”; only ordinary courts can impose penalties in accordance with a law.
In Article 8, the Prussian citizens are guaranteed property protection. The inviolability of property is only restricted by deprivation or restriction for reasons of public good. Mandatory compensation is payable to the injured party. The protection of property in the Prussian constitution of 1848 thus resembles current regulations.
The free choice of religion and -Ausübung, as well as to join in religious or any other party the right, are guaranteed. Articles 11 to 16 also deal with the coexistence of religion and state. The Prussian state guarantees all civic rights regardless of the religion of the individual, but at the same time the practice of religion must not hinder civic duties. All religious societies (with special emphasis on the “Protestant and Roman Catholic Church” in the constitutional text) exercise their rights (e.g. filling church posts) autonomously; the same rules apply to the publication of their orders as to normal publications. A compulsory civil marriage exists as a prerequisite for a religious marriage, but the religious marriage is insignificant for the legal validity of the marriage.
The Prussian state guarantees the independence of science and teaching. Every Prussian youth has a basic right to general, free education at public elementary schools; there is compulsory schooling . The establishment of private teaching establishments is guaranteed; the prerequisite for working as a teacher in public or private schools is proof of "moral, scientific and technical qualifications" from the relevant state authorities. Religious instruction at elementary schools is subject to the religious societies. The teachers in public schools are public servants, they are paid a sufficient salary by the state. The management of public schools and the selection of teachers as well as the financial obligation for the maintenance of the schools is the responsibility of the municipalities.
Personal freedom, the inviolability of the home, the confidentiality of correspondence, the right to a legal judge, freedom of expression, freedom of the press, the punishment of press offenses, freedom of assembly and the right to association in societies are permitted on the basis of Article 110 of the Prussian constitution of 1848 in the event of a "war or riot [...] to be temporarily and district-wise suspended".
Legislation and chambers
The legislature is incumbent on the king and both chambers. Through the division of the legislation, the principle of the separation of powers is implemented to a very limited extent, since the king alone has executive power and the right to determine the judiciary.
The interconnection of powers between the legislature and the executive is limited, as the ministers, even if they are responsible to parliament, are not dependent on appointment or dismissal. The king can “in urgent cases, under the responsibility of the entire state ministry [which is dependent on the king by dismissal], issue ordinances with the force of law”, which “the chambers can postpone for 60 days by dissolving the chamber when they next meet can] be submitted for approval ”.
The legislative initiative rests with the king and both chambers alike. The same legislative proposal can only be proposed once per session. At the beginning of a legislative proposal by a chamber there is the summoning by the king, which must always take place in both chambers at the same time. The chambers are "opened, adjourned (for 30 days and only once per session) and closed" by the king alone; the king can also dissolve both or one chamber at any time in order to have them re-elected after a maximum of 40 days and after a maximum of 60 days to gather again. The chambers must be convened in November each year. After being called, they decide on their own legislative proposals on the initiative of the President or at least 10 members in a secret meeting or vote on legislative proposals from the King or the other chamber on the principle of an absolute majority. In order to take a vote, a majority of the members of a chamber must be present. In order to pass a law, all three parties have to agree, so they have completely equal rights in the legislative process. Thus, both chambers and the king have the right to veto new laws. The constitution itself can be changed “through the ordinary legislative process”. An unchangeable constitutional core does not exist.
Business processes and rules of procedure as well as the election of the (vice) president, their secretary and decisions regarding their members are made by the chambers autonomously. They are also allowed to address writings to the king and to form investigative commissions.
In order to be valid, a law that has been passed must have been "published in the form prescribed by law". The preaching of the law is the duty of the king. In theory, by delaying the proclamation of a law, the king can postpone its binding force.
The 180 members of the first chamber, Prussian citizens for at least five years and over 40 years of age, are indirectly elected by the voters for 6 years , with provincial, district and district representatives acting as electors . Every Prussian citizen who is at least thirty years old and pays an "annual class tax rate of at least eight thalers, or can provide evidence of real estate worth at least 5000 thalers or a pure annual income of five hundred thalers" is eligible to vote for the first chamber. This means that the first chamber is a parliament elected indirectly through census suffrage .
The second chamber, consisting of 350 members, who must be at least 30 years old and have been Prussian citizens for at least one year, is elected by electors. Every “independent” Prussian citizen who does not receive poor relief is entitled to vote. An “election execution law” determines further details of the election. The legislative period of the second chamber lasts three years. The MPs act as “representatives of the whole people”.
The members of both chambers have a free mandate, so they vote "according to their free conviction". At the same time they are obliged to “swear allegiance and obedience to the king and the constitution”.
Parliamentarians are entitled to indemnity and limited political immunity . The immunity of the MPs only applies during the session and in the event that the MP is not caught within one day of the offense. At the request of the chamber concerned, however, the criminal proceedings against its member must be temporarily suspended and detention ended for the duration of the chamber's session. Members of the second chamber receive travel expenses and diets, those of the first do not.
Executive and Administration
The highest executive body is the king, who swears an oath on the constitution when he comes to power. Among other things, this constitutional oath characterizes Prussia as a constitutional monarchy after 1848, but the preamble at the same time follows the absolutist claim to power: "We Friedrich Wilhelm, by God's grace ". The king enjoys immunity (“The person of the king is inviolable”). The king has the right to "declare war, to make peace and to establish treaties with foreign governments" without involving a chamber, but is also required to conclude trade or other contracts that burden or oblige the state or its citizens as well as for rule The approval of the chambers is required for a foreign country. Foreign policy is therefore largely beyond parliamentary control. Furthermore, the king alone has the right to mint coins. The reign goes on to the eldest son of the king. Unless "provision has been made for both by a special law" beforehand, both chambers determine the reign and guardianship of the king in the event that the king is a minor (under the age of 18) or incapable of governing .
Subordinate to the king are his ministers, whose appointment, dismissal and number he is free to determine. The ministers are responsible to the chambers and are obliged to provide information on incoming complaints they receive. In addition, their presence can be requested by a chamber at any time. But the ministers must also be heard by the chambers if they themselves request it. An immunity for ministers (in the event that they are not members of a chamber) is not specifically regulated in the constitutional text, but they can “by decision of a chamber be charged with the crime of constitutional violation, bribery and treason”, about which the supreme authority Court has to decide.
The state's financial management and budget are subject to far-reaching parliamentary control. The budget is determined one year in advance by law. All positions in the civil service are filled by the king. Since taxes and duties may only be levied through inclusion in the state budget or through a law, their levying is only constitutional with the consent of the king and both chambers. The acceptance of government bonds and government guarantees also requires the approval of the three legislative bodies. “Preferences” in taxation are not allowed under the constitution. The Upper Chamber of Accounts checks the budget of the previous year and submits it to the chambers, which exonerate the government and have to approve it retrospectively if the budget is exceeded. The consent of both chambers is therefore required for all important state budget decisions.
The regional authorities of Prussia are provinces, districts, districts and municipalities. This lays the foundations for subsidiarity in the Prussian state, as can also be seen from the fact that the "assemblies consisting of elected representatives" "decide on the internal and special affairs of the provinces, districts, districts and communities", i.e. their own Be able to decide matters independently. The limits of the vertical separation of powers, ie when “the resolutions of the municipal, district, district and provincial representatives are subject to the approval of a higher representation or the state government” is determined by a law. The local authorities must also report to the state government for their budget. The municipality is also responsible for the administration of the local police in cities with less than 30,000 inhabitants.
Like the heads of the regional authorities, with the exception of the municipalities (whose heads are “elected by the parishioners”), all positions in the civil service are generally filled by the king. The state officials "have to swear allegiance and obedience to the king and the constitution". The civil servants' status should be taken into account, they should be given "adequate protection against arbitrary deprivation of office and income". The civil servants who were employed before the constitution was drawn up should also be taken into account. All civil servants are to be prosecuted for “violations of the law committed by exceeding their official authority”. No “prior approval from the authorities” is necessary, so civil servants are treated as equal to every citizen in cases of legal prosecution.
"Judicial power is exercised in the name of the king [...]."
The king has the right to appoint all judges for life. However, he does not have the right to dismiss. Once in office, the judges are thus independent in their decisions. You can be completely or temporarily removed, transferred or retired by a judge's decision on the basis of legally stipulated reasons. A law determines the requirements (for example regarding training) for working as a judge. One of them, with the exception of legally regulated exceptions, is that the judge does not hold any other paid state office.
The king has the right to exercise pardons and mitigation of sentences without involving the courts. However, the pardon or reduction of sentences of the accused ministers requires the approval of the accusing chamber.
The organization and regulations of the jurisdiction and competences of the individual courts are not regulated in the constitution itself, but with reference to the relevant laws. The two highest courts of law are united into one; the Supreme Court does not have the right to review norms.
Basically, unless otherwise determined by a public judgment due to the danger of state security and order, criminal and civil law negotiations are public. Judges' rulings are therefore subject to the control of public opinion and the “fourth power”, the media. Jury courts are used in cases of serious criminal offenses, political offenses and press offenses.
Military and vigilante groups
The armed forces remain under the authority of the king, who leads the " supreme command of the army". There is no parliamentary control of the army. In "war and in the service" it is subject to the "military criminal jurisdiction" and when not in service it is subject to the "general criminal laws" only if this is retained. In the military, the general laws have only limited validity, and basic rights are also limited. The “military disciplinary regulations” may violate personal freedom, inviolability of the home, the confidentiality of letters, freedom of assembly and free association in societies. Article 108 of the enforced constitution precluded the military from being sworn in on the constitution. The deployment of the army in the interior to "suppress internal unrest and to implement the laws" is regulated in a law, an deployment must be ordered by the authorities. Without having to "consultation [the] military commands and arrangements" commands are followed on standing army or Landwehr, a disobedience right at illegal commands thus there is not.
The Prussian army consists of "the standing army, the Landwehr, the vigilante" and the army of conscripts .
Real Estate Provisions
Fiefs and entails two legal forms of organization of real estate are in the Prussian Constitution after it became especially on Fideikommisse "with the advent of liberalism criticism [...] awake," prohibited and existing fiefs and entails dissolved. This means that the “right to freely dispose of property” is subject to “no restrictions other than those of general legislation”. At the same time, the “Fiefs of Thrones” and “the Royal Household and Princely Fideikommiss” represent an exception to the prohibition of these legal relationships. They are to be “regulated by special laws”. Many of the rights of the former landlords are now forbidden by law, such as the “sovereignty of the courts” and the “manorial police” as well as “ hereditary subjection ” and the “tax and trade constitution”.
Some provisions in the Prussian constitution of 1848 mainly concern the constitution itself, or regulate the state organization temporarily. All laws, ordinances, taxes and duties as well as authorities that are compatible with the constitution remain in place. A revision of the constitution takes place "immediately after the chambers meet for the first time" through the ordinary legislative process. Another article concerns a possible constitution for the whole of Germany. In the event that this should require changes to the Prussian constitution, "the king will order them and [...] notify the chambers [...]". The chambers should "take a decision on whether the provisional amendments [ordered by the king] are in accordance with the German constitution". Thus, the initiative for a constitutional amendment in favor of a German constitution lies solely with the king and not, as with any other constitutional amendment, with all three legislative bodies.
The three-class suffrage
In the constitution of December 5, there was still talk of an “election-implementing law”, which “determines details about the execution of the elections to both chambers”. This did not happen in the case of the second chamber. Instead of a law by compromise between the king and both chambers, the “Ordinance on the Execution of the Election of Deputies to the Second Chamber of May 30, 1849”, decided by the King alone, came into force. He was referring to Article 105 of the Constitution, which allows emergency ordinances with legal force without the involvement of Parliament. The justification for the introduction of an electoral law staggered according to tax classes was based on the distinction between the “powers of citizens”, which are “partly physical or material, partly spiritual”. Depending on the civic power, there is then a higher weight of the vote. Another reason is based on the fact that "in the poorer members of the state society the greater sum of the physical, so in the richer the higher amount of the spiritual powers, and thus the weight that is apparently attached to the material property, - in the deed of higher intelligence benefits. ”The constitution of 1848 already mentions considerations“ whether another mode of election, namely that of division into certain classes […] is preferable ”.
Deviating from the provisions of the constitution on the election to the second chamber, the following sentence determines the electoral code, which established the three-class right to vote: “The primary voters are divided into three sections according to the direct state taxes to be paid by them (class tax, property tax, trade tax), namely in such a way that a third of the total sum of the tax amounts of all primary voters falls on each division. ”The weighting of the votes between the first and third tax class corresponds to a factor of 20, so the vote of a voter in the first tax class is equivalent to the votes of 20 voters the third tax bracket, which led to a massive distortion of the actual will of the voters.
Comparison with the March demands
In order to pose the question of whether and to what extent the Prussian imposed constitution, as many historians claim, was "modern", from the "limited view of Prussia a great advance", or "by no means clearly reactionary in character" has to be However, they should not only be linked to the currently valid ideas about the rule of law, as happened in the previous chapters, but it is also important to determine to what extent they satisfied the progressive ideas of their time. Defining the various conceptions and definitions of the March demands in a generally valid way has to be described as almost impossible due to the heterogeneity of the revolutionary groups alone. Nonetheless, there are fundamental demands which almost all liberal and democratically minded revolutionaries have led in their demands. They are summarized in the “Demands of Mannheim”: The catchwords were people's arming, jury courts, a German parliament and freedom of the press, enshrined in a constitution. These demands, possibly supplemented by freedom of assembly, can be considered the core demands of the March Revolution.
Above all, the very existence of a constitution, albeit with absolutist claims to power, signifies a great step by Prussia into constitutionalism ; the power of the king was now limited by the constitution. The constitution itself contained very progressive articles on fundamental rights, such as freedom of the press and freedom of assembly, which, however, can be overridden together with some other fundamental rights in the event of an emergency. The constitution complies with the requirement for a jury. You decide in cases of serious crimes and political or press offenses. The constitution does not include the desire to arm the people. In the meantime, vigilante groups and general conscription emerged, nonetheless not independently but subject to military orders and orders. Through their existence, the abundance of power of the standing army is counterbalanced to a certain extent. Finally, there remains the demand for a national parliament for all of Germany. This met in May; When the result of the efforts, a nation state under the leadership of Friedrich Wilhelm IV, was presented, the Prussian king refused. Changes to the Prussian constitution in favor of a German constitution are also subject to his initiative.
The constitution shows compliance with the liberal demands on many points. The democratic shortcomings of the constitution lie less in the amendments in favor of the March Revolution, apart from the right to override most basic rights in the event of war or riot, but rather concern the separation and control of powers, the right to issue ordinances, and the undermining of the judiciary King, dissolution of the chambers and their electoral mode.
Against the background of the regained power of the king in the years 1849/50, the constitution seems like an interlude of constitutionalism in absolutist Prussia. Few - symbolic - elements of the constitution fell victim to the counterrevolution; most parts of the constitution survived the revision of 1850. The conclusion that can be drawn from the constitution of 1848 also applies to the following years. The Prussian constitution of 1848 was, despite an octrois in place of the promised agreement with a constituent national assembly, able to please the moderate liberals in the state. Above all, this was due to the progressive elements of the constitution worked out in the previous text, including the large catalog of basic rights, the introduction of jury courts and, in principle, the introduction of a constitution that ensures legal security and control of the monarch. However, neither the acceptance of the constitution nor the reforms should hide the fact that there are still clear restrictions on a democratic state order. The chambers' legislative authority and most basic rights may be suspended in the event of war or riot, and the king's absolute veto is retained. There is only a very limited separation of powers, there is a census election, the monarch can circumvent jurisdiction and the military must be described as a state within a state. These criticisms of the constitution must also be viewed against the background of the political and social situation after the March Revolution, and so it is quite understandable that for many citizens a “semi-liberal” constitution was preferable to a further state of emergency through revolution.
The new (revised) constitution for Prussia came into force on January 31, 1850 and lasted until 1918. With the November Revolution of 1918 it ceased to be in force and was only replaced in 1920 by the new (democratic) constitution of the Free State of Prussia .
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