Michał Gałędek

The publication is devoted to several examples of the practice of criticism of the Head of State and executive power in Polish history. The authors have chosen three moments of interest: the first one is the first decade of the “Congress” Polish Kingdom established in 1815, and the second refers to the Second Polish Republic in the period after the coup d’État by Józef Piłsudski in 1926. Finally, the authors refer to some practical aspects of criticism of the authority in the public space in recent times, also recalling the high-profile criminal trial that reached the highest instance – the Supreme Court in 2023. In these examples, the authors focus on aspects of the permissibility of criticism, its specific forms and the reaction of the executive in the early history of the constitutional state and camouflaged criticism of power respectively, through the interwar liberal model of protection of freedom of speech and of the press, which failed in the face of authoritarian changes and the political will to protect the good name of one particular individual; after the death of Piłsudski, the lack of adequate legal protection post mortem was finally “remedied” by a particular repressive law. The last section of the discussion refers to the contemporary Polish state of law, and here the focus is on the faces of criticism and the forms of its suppression. In particular, attention was paid to the problem of the extensive use of means used by the police against criticism particularly unpleasant to the power camp (up to the bizarre action with the hiring of a jib) and the question of maintaining specific protection of the Head of State against defamation in the Criminal Code.

The article focuses on the problem of using the legal heritage based on the example of the May Third Constitution. This issue is considered in relation to two selected moments in the history of the Congress Kingdom of Poland – 1814/1815 and 1831. What connects them, and at the same time makes them unique periods in the political and constitutional history of Polish territories under the partitions, is the relative freedom the Polish elites had in their right to decide on the constitutional foundations of their own statehood. In 1814/1815, Prince Adam Jerzy Czartoryski was granted the emperor’s consent to prepare a draft which, after corrections, became the basis of the Constitutional Act granted by Alexander I. Similarly in 1831, after the dethronement of Tsar Nicholas I, the insurgent elites were free to embark on an unfettered constitutional debate on the systemic reform of the state. Both in 1814/1815 and in 1831, Polish political and intellectual elites faced a dilemma as to whether the May Third Constitution could serve mainly as a monument and symbol of Polish history, or whether it still had the potential to be directly applied; and if so, then to what extent and under what conditions. The publication is devoted to exploring answers to these questions.

The article focuses on the problem of using legal heritage based on the example of the Constitution of 3 May 1791. This issue is considered in relation to two selected moments in the history of the Congress Kingdom of Poland – 1814/1815 and 1831. What connects them and, at the same time, makes them unique periods in the political and constitutional history of Polish territories under the partitions is the relative freedom the Polish elites had in their right to decide on the constitutional foundations of their own statehood. In 1814/1815, Prince Adam Jerzy Czartoryski was granted the emperor’s consent to prepare a draft which, after corrections, became the basis of the Constitutional Act granted by Alexander I on November 27, 1815. Similarly, in 1831, after the dethronement of Tsar Nicholas I, the insurgent elites were free to embark on an unfettered constitutional debate on the systemic reform of the state. Both in 1814/1815 and in 1831, Polish political and intellectual elites faced a dilemma as to whether the Constitution of 3 May could serve mainly as a monument to and symbol of Polish history, or whether it still had the potential to be directly applied; and if so, then to what extent and under what conditions? The publication is devoted to exploring the answers to these questions.

The present source publication is the sixth in a series encompassing the most important documents related to preparations for the replacement of French codes with national codification drafted by the Civil Reform Committee which worked between 1814 and 1815. The publication includes the second part of “The project of the civil judicial procedure in first instance”, which is comprised of enforcement proceedings presented just like the first part (the trial) by Franciszek Grabowski, and the fragments of the minutes reporting the course of the discussion concerning the solutions proposed within the project.

We present three source texts. The first are the writings of father Dhiel, General Superintendent of the Reformed Evangelical Congregations, which dealt with matrimonial laws and divorces. Next is the draft act by A. Bieńkowski concerning property contracts between spouses, and the last are fragments of Civil Reform Committee session minutes regarding these writings. The author of the first text covered three issues of fundamental significance to the Protestants, those being: obstacles to contracting marriage, premises for divorce, and the problems of jurisdiction in divorce cases. The author of the published draft act, in turn, postulated the reinstatement of the separation of assets, which had functioned previously under ius terrestre as the statutory property regime in marriage. This solution was in direct opposition to the one introduced in the Napoleonic Code. The draft act was much shorter than the chapter of the Napoleonic Code that it was to replace: 34 articles as compared to 195. In many aspects it could be deemed fragmentary, written from the perspective of the landed gentry, and omitting many problems that concerned other social strata.

The present source publication is the fifth in a series encompassing the most important documents related to preparations for the replacement of French codes with national codification written by the Civil Reform Committee which worked between 1814 and 1815. Herein are contained the minutes of the sessions held by the Committee which concern a key debate among its members who argued as to whether to derogate the French Code of Civil Procedure in its entirety or only in fragments which were considered to be the most burdensome in Polish realities. Moreover, the publication also includes the first part of “The project of the civil judicial procedure in first instance”(primary procedure) presented by Franciszek Grabowski, a preeminent traditionalist in the Committee, along with fragments of the minutes reporting the course of the discussion concerning the project. Together with the second part of the proposition submitted by Grabowski encompassing enforcement proceedings, a counterproject of the code of civil procedure by progressive judge Antoni Bieńkowski, as well as a debate over these two proposals, which are to be published in the next issues of “Krakowskie Studia z Historii Państwa i Prawa”, the materials presented below portray the crux of the debate held over the Code de procedure civile of 1806, which aroused much controversy, and which was in fact the most criticized part of the French legislation in force in Polish territories.

As part of the source publication series begun in the second fascicle of the twelfth volume of Krakowskie Studia z Historii Państwa i Prawa [Krakow Studies in History of State and Law], we are publishing this time documents related to the preparation of the Civil Reform Committee, which operated in 1814–1815, to develop a new national civil code to replace the Napoleonic Code: 1. Wstęp przy wprowadzeniu planu do kodeksu cywilnego [Introduction to the Plan of Implementation of the Civil Code], 2. Plan Bieńkowskiego do nowego kodeksu cywilnego [Bieńkowski’s Plan for the New Civil Code], 3. Projekt Linowskiego do uformowania komisji mającej wygotowaćKsięgęprawa cywilnego i procedury [Linowski’s Plan for Forming a Commission to Prepare a Book of Civil Law and Procedure] and fragments of minutes of the Civil Reform Committee sessions regarding this draft. Source material on matrimonial law published in two last issues of the „Krakow Studies”in 2019 differed from the documents published in this fascicle because they were intended to serve only a partial reform of the Napoleonic Code envisaged for a temporary period, until a new civil code was developed. Antoni Bieńkowski presented his Plan for Implementation of the Civil Code at the session held on 20th November, 1814, less than a month after presenting the drafts of matrimonial law to the Civil Reform Committee (23rd October). The introductory part of the Plan presents the general assumptions regarding the works. They are followed by a list of the planned chapters and a justification of the adopted order. The actual Plan itself (second document) lists the same titles of chapters, along with the issues that should be regulated in a given place, and then it indicates where the models to follow could be sought. The debate related to the presentation of Bieńkowski’s Plan and the scope of activities in this field entrusted to the Committee by Emperor Alexander, took place at sessions held from 17th to 24th November. It ended with the preparation of Aleksander Linowski’s Plan for Forming a Commission to Prepare a Book of Civil Law and Procedure on 27th November. This document planned three stages of codification works: first, a 9-member commission was to draft both codes, and then departmental deputies were to work on them (first personally, and then representatives of them, with some Committee members). The last stage of preparatory works was to be comprised of meetings of five senators and members of the Council of State with selected Committee members and a representatives of departmental deputies.

As part of the series of source publications commenced in the second fascicule of the 12th volume of “Krakowskie Studia z Historii Państwa i Prawa” [Krakow Studies in History of State and Law], we are publishing [Draft] to Replace Title 5 of Book 1 of the French Civil Code  and fragments of the minutes of Civil Reform Committee’s sessions concerning this draft. On 23 October of 1814 Antoni Bieńkowski presented at the Committee’s session drafts of marital laws: personal and property. The former of the two drafts is published below, whereas the latter will be printed in the upcoming fascicule of “Krakowskie Studia z Historii Państwa i Prawa”. This draft, similarly to the others penned by Committee members, never came into effect as law. The issue of upholding the lay system of marital law, introduced by the Napoleonic Code, remained a contentious one for years to come. In 1825 the Sejm enacted Book One of the Civil Code of the Kingdom of Poland, which implemented a mixed model of marital personal law. Lay elements, however, were a lot stronger there than in the 1814 draft (particularly, also marital issues concerning Catholics were placed within the jurisdiction of common courts of law). Also this law was heavily criticized by the conservative circles. 

The present paper is an introduction to the source edition of 13 documents concerning the organization of the Civil Reform Committee and the Committee’s work on changes in civil law and civil procedure. The Civil Reform Committee was appointed by Tsar Alexander I on 19 May 1814 in connection with the plan to transform the Duchy of Warsaw into the Kingdom of Poland, a Russian client state. Participants of the Committee’s works were Adam Jerzy Czartoryski, Mikołaj Nowosilcow, Tomasz Ostrowski, Stanisław Zamoyski, Tadeusz Matuszewicz, Aleksander Linowski, Józef Kalasanty Szaniawski, Tomasz Wawrzecki, Franciszek Grabowski, Antoni Bieńkowski, Józef Koźmian, and Andrzej Horodyski.The Committee’s goal was to prepare a reform of the administration, the treasury, and the codes of civil and penal law. The Tsar’s guidelines urged the Committee to sever all ties with the French models and to draw from native traditions. As regards civil law and civil procedure, the works reached a moderate degree of advancement. Only outlines of the future codes and fragmentary legislative drafts were prepared. Even though these works may be deemed to have been a beginning of Polish codification of law within the modern meaning of the word, the documents used in this process have been heretofore used sparsely by historians, including historians of law. Thus the need for their publication. At the same time we are publishing fundamental documents concerning the organization of the Committee itself.