CHAPTER IV

 

THE TEMPTATION OF THE WEST:

THE ROMANIAN

CONSTITUTIONAL TRADITION

 

IOAN STANOMIR

 

 

The European cleavage between "the old regime and modernity," defined by the pre- eminence of constitution and separation of powers, is also present in the Romanian space. The chronological limit between these two types of political organization cannot be clearly determined, due to the difference in the political and intellectual context. What can be precisely stated is the fact that this transition to modernity, finding its origins in the beginning of the 19th century, has 1866 as its landmark, the year when the first true Constitution was adopted.

The constitutional transition was accompanied by a profound modification of mentalities and of the identity mechanism. ‘The Old Regime’ of the Phanariots [defined by the fact that the Ottoman Empire was imposing its choices of rulers upon the two Principalities, Moldavia and Wallachia] was far from fitting the classification of medieval absolutism. Paradoxically, one of the Phanariot rulers [whose origins caused them to be more open to the European Enlightenment], Constantine Mavrocordat, published a project entitled Constitution in France in 1741. The title is significant, although the above-mentioned document was nothing more than a fiscal reform text. The presence of the Phanariots in the Romanian space, condemned out of patriotic reasons a year later, was an occasion for the indigenous space to get in touch with the ‘Europe of Lights’.

The origins of Romanian embryonic constitutionalism, meaning only the political will and juridical tendency to reform the society, are to be found in the reform projects of the boyars from the end of the 17th century. ‘The Eastern Question’, which was about to take shape at that time, implied a debate over the Principalities’ statute – the Ottoman Empire’s weakening leads, almost unavoidably, to the appearance in the region of the two neighboring empires, the Russian and the Austrian. Hence comes the obsession of the boyar elite to submit projects for the reorganization of the Principalities to the European Congresses and Courts, in the years following 1774.

1789 represents an important year: the French revolutionary project tended to ignore frontiers, proposing a general solution, regardless of time and space. ‘The Rights of Man’ and separation of powers ceased to be simple ideals and began to find their place in Declarations of Rights and Constitutions.

Modern continental constitutionalism found its beginning in the revolutionary shock of 1789 – the Romanian case was no exception. Moreover, for the Principalities the irradiative force of the French spirit proved itself quite significant toward the end of the 17th century; the stronger the Romanian States felt, the stronger the French influence became. Of course, it is not a single instance in the ‘Europe of Lights’; in the Romanian space, even if chronologically lagging, the ‘lights’ are present. The libraries of intellectuals and clergymen included volumes of the Encyclopedia, and the basic readings of the elite were almost exclusively French works. The first decades of the 19th century are defined by this impressive French influence: through diplomats, books and images the three French eras [the Revolutionary, the Napoleonic, and the Restoration] became the main vehicle of Romanian modernization.

The appeals to society’s reform are part of this synchronizing process. In The History of Modern Romanian Civilization, Eugen Lovinescu analyzed the process of the Principalities’ Europeanization by describing it as imitation. The break with the Orient, with the Phanariots, was reflected in the feeling of an imperative of modernization. In the decades prior to 1848, the vocabulary of the Romanian language is itself structured in the spirit of Westernization: the Russian, Turkish and Greek influences are gradually replaced with a vocabulary which owed a great deal to French and other Latin languages.

The Principalities claimed they belonged to ‘Europe’. History was read again for the purpose of discovering patriotic models, while the public space was molded towards this ideal of coherence with Western Europe. The political and judicial organization was one of the most striking aspects of retardation, upon which the intellectual reform still needed to exert its influence.

A boyar memorandum written in 1802 by D. Sturdza illustrates this point. He suggested that Moldavia be reorganized on the basis of an aristo-democratic republic – the central idea being that of a less arbitrary government which, nevertheless, favored the oligarchy of the landlords. The use of a term like ‘republic’ reflects the new spirit of the time, through which, slowly, the local elites opened towards West – the phenomenon of political reflection translated itself into constitutional projects. Simple proposals, with no concrete results in the realm of practical politics, generally texts centered around the reform of the State, played an essential role in beginning the trend toward a constitutional evolution.

The year 1821 marked the beginning of what may be called the accelerated modernization of the Principalities. The Phanariot monopoly was eliminated as a consequence of a revolutionary movement, led by Tudor Vladimirescu in Muntenia. The movement grew out of European reaction to the order instituted by the Holy Alliance. Vladimirescu himself communicated with the Greek revolutionaries of the Hetairia. The internal autonomy of the Romanian States was assured by the guarantee that local boyars would rule them. The 1821-1822 period was significant for the intellectual movement, since the restoration of native princes after 100 years did not lead to the reformation of the State. This development, in turn, inspired new projects for constitutional reform.

A historical accident, the discovery by A.D. Xenopol, in the late 1800s, of some documents in the attic of an old house, it allowed access to what historians called the Constitution of the Moldavian [‘Carvunari’]. The document has a symbolic importance; it was interpreted as a reconciliation between the boyar claims and the principles of the French Revolution. The denomination Carvunari itself was inspired in the epoch by the Italian Carbonari. The apparent radicalism of the movement was responsible for the use of this name.

Although it had no immediate consequences, the document written by the Carvunari announced the future spirit of constitutional reform after 1835. Whereas it seems that the only intention of the Carvunari was to dispute the political monopoly of the Great Boyars, there are certain clues that prove an extremely significant Western influence.

What the Anglo-Saxon law generically calls ‘the rule of law’ is beyond all doubt framed by the Carvunari. This is due to the fact that for the authors of the project, The Law [‘Pravila’] is the supreme authority upon which the future organization of the State was supposed to be founded. I.C. Filiti pointed out that the intention of the project was to build constitutional rule in Moldavia, which would provide for the respect of individual civil liberties.

A comparative analysis reveals also the sources of this embryonic constitutionalism. The Declaration of the Rights of Man and of the Citizen from 1789 is one of the compulsory references. The rule of law [Pravila] is stipulated in the fourth article of the ‘Constitution’. Besides those specifying ‘the rule of law’, the provisions that guarantee individual liberty [written in terms reminiscent of Habeas corpus], and those which eliminate preventive detention are also essential. Article 18 defines law, in the spirit of the French Revolution, as an expression of the general will.

The significance of this document of transition is clear: it expresses, despite its ambiguous style, a French revolutionary influence, which would become more and more important. Furthermore, one can not ignore the fact that the idea of a written constitution, including civil liberties, is a relatively recent intellectual acquisition, which owes its appearance to the same irradiant French revolutionary spirit.

The institutional status of the Principalities exerted significant pressures on their constitutional evolution. ‘The Eastern Question’, which had its roots in the gradual weakening of the Ottoman Empire, led to a modification of their diplomatic position. After 1829, through the Treaty of Adrianopole, the Ottoman Empire retained its suzerainty over them, but they were also granted the protection of Czarist Russia.

The period between 1830 and 1848 may be defined as one in which the Principalities, nominally tied to the two powers, are placed within the framework of Russian influence. The years of Czarist protection were reflected from a constitutional point of view in the ‘Organic Regulations’, documents which were elaborated by the Boyars Committees from the two Principalities, and approved by the protective Court of Petersburg.

The position of the ‘Regulations’ in constitutional history is controversial. The fact that they were written by the boyars with the help of the Russian occupation power contributed to their extreme unpopularity. The ‘Regulations’ were, not without reason, interpreted as a step towards the annexation of the two Romanian States by the Czarist Empire.

Nevertheless, an objective view cannot omit the fact that the ‘Regulations’ [true fundamental documents, which did not include a ‘Declaration of Rights’ or ‘Bill of Civil Liberties’] belonged to a historical process of constitutional modernization.

The ‘Regulations’ introduced the first elements of a limited monarchy. The monarchy was defined by its elective, lifelong and noble character, which thus consecrated the older boyar claim for an oligarchic regime.

All things considered, the position of the Prince was no longer identical with that of the rulers in the Phanariot or absolutist ‘Old Regime’. An embryo of separation of powers was introduced, to the extent that the legislative power was exerted by both the Prince and an Ordinary National Assembly [an assembly of the estates, which privileged the boyars]. The mechanism of the relationship between the Prince and the Assembly was a constitutional one, close to the European solutions. It also included the absolute veto of the Assembly’s decisions, as a right of the Prince.

The imperative formulated by the Carvunari, ‘the rule of law’, is framed here as well: the law can no longer be defined in terms of a loose absolutism, like the Prince’s act of will, but it is defined as an agreement of will between the Ruler and the Assembly.

The principle of separation of powers could not, for objective reasons, be specifically mentioned in the ‘Regulations’, because Russia could not afford to sanction the imperatives of 1789. Yet, implicitly, separation of powers can be deduced from the texts of the two documents: the executive power is entrusted to the Ruler, who exerts it with the help of some ministers, both appointed and removed by him. The separation of powers, even if it was implicit, had as a corollary the existence, for the first time in a coherent manner, of a judicial power, structured on different degrees of appeal. Also, modernization is visible in the way the departments of state administration are assigned competence, as prescribed by the fundamental document.

A retrospective judgment reveals how much the ‘Regulations’ [effective in Wallachia on June 1st, 1831, and in Moldavia on January 3rd, 1832] were the product of a political compromise. The establishment of a modern state, governed by laws and instances with precise competence, was not accompanied by the introduction of a requirement which will eventually become dominant in political and constitutional thought, the abolition of the prerogatives of nobility and the equality of subjects before the law. The spirit of the ‘Organic Regulations’ reflects that of a Europe dominated by the rigidity of Metternich and the Holy Alliance. What cannot be denied is the fact that the two above-mentioned fundamental papers urged the coming into being of radical attitudes. The boyar elites, through the Western-educated sons, got in touch with a European world, which can hardly be reduced to the model of Imperial Russia. Between 1831 and 1848 the Romanian Principalities were the place where the Romanian space experiences for the first time, in a systematic manner, revolutionary European radicalism. Utopian socialism found its echo in the building of a phalanstery, while the secret societies [a dimension of the July Monarchy] proliferated.

The doubt cast upon the ‘Organic Regulations’ is a consequence of the contact with the West, and especially with France and Germany. Public opinion [another European invention adopted by Romanians] was that the ‘Regulations’ represented the legal method of confirming and maintaining Russian domination. By contrast, the ideas of political radicalism, which had their origins in 1879, were intermingled with the patriotism aspiring to the emancipation from the Russian patronage. The later ‘National Party’s’ profile, political reformism and nationalism, was framed in the era prior to the European revolution of 1848.

A decade before 1848, one of the secret societies, animated by Ion Câmpineanu, edited a project on a Constitution – the gesture was symbolic: national emancipation, independence and unification were accompanied by the act of elaborating the fundamental pact.

The principles of this Romanian Constitution reflect the same Western temptation that pervades Romanian constitutional law. Their character is obviously different, since the stipulations of this document take over the objectives of modern European constitutionalism. Equality before law, freedom of expression, and the explicit introduction of the principle of separation of powers proves a European synchronization. The regime had at its core a National Assembly watching over ministerial responsibility, thus prefiguring the revolutionary constitutionalism from 1848.

The 1848 generation had a direct experience of the European revolution. Many of the important leaders participated in the French period of the European revolution. The Romanian student societies from the French Capital represented the space where the new ideas were concocted. Edgar Quinet, Jules Michelet, Alphonse de Lamartine, Giuseppe Mazzini are names which dominated and inspired the generation. Sons of boyars, belonging by birth to the ruling elite, the 1848ers had the intellectual profile of European romanticism. Between the Romanian ardor and Miickiewicz messianic radicalism, there is only a difference of geographical distance. The Romanian space [including not only the two Principalities, but also Transylvania and Bucovina] was integrated in this pan-European movement.

Of the four revolutions going on in 1848, the only one, which ends by establishing a temporary government endowed with a real authority, is that in Wallachia. ‘The Proclamation of Islaz’ from June 11th, 1848, formulated the principles of the revolutionary movement, including, besides a foreword marked by the rhetoric of the time, a set of concrete provisions.

The principles of the ‘Proclamation’ can be read as a ‘Declaration of Rights’. The most probable author of the document, I. H. Radulescu, reconciled the requirements of the revolution with those of pragmatic constitutionalism. Besides legislative independence, at least two other stipulations were introduced, which proclaim forever the break with the organic order: juridical equality and taxation. The emancipation of the serfs, land reform and the emancipation of the Jews were also listed.

Building a constitutional order was the central goal of the revolution. The unicameral parliamentary system [similar to the French Constitution of 1791] presupposed a ‘general assembly’ made out of representatives of all estates [article 4]. Thus it became possible to define the political regime as quasi-republican – as long as a ‘responsible ruler’ elected for five years was stipulated. ‘The rule of law’, the core claim of all movements after 1821, implied another idea of European constitutionalism – the responsibility of the ministers and of all other clerks. Also, from a historical perspective, the inclusion of a stipulation which would appear again in the Constitution of 1866, relevant, the absolute freedom of the press and the elimination of censorship.

The Declaration’s corollary was the last article, which called on an ‘Extraordinary National Assembly’ to draft Wallachia’s Constitution in accordance with the 21 provisions mentioned in the Proclamation. The preoccupation with the constitutional effort did not represent a unique feature of the Wallachian revolution; the French revolutionaries furnished the model, which was then adopted in the Romanian space.

Wallachia’s government, made up of revolutionaries, was in power for a relatively short span of time, only until September 1848. Yet the temporary government issued a decree on July 14th, 1848 summoning Wallachia’s Constituent Assembly. The most probable mission of this body was to elaborate the fundamental document and to elect the ruler. Initially, the core idea was to adopt universal suffrage [all Romanians over 21] with a hint of a two-tiered voting system. The first electors were to designate a number of ‘elective deputies’, who in turn would elect the deputies of the Constituent Assembly.

The extremely large number of illiterate persons, and their obvious lack of preparation for a vote was the justification for the complicated voting system. Later, on August 4 to 16, 1848 the Deputy of the Hospodar [the new form of rule in Wallachia] presented the principles of the future Constitution to the Sultan.

‘The Proclamation of Islaz’, generally speaking, was resumed, and an explanation was added, stating that universal suffrage was modified by a reference to the "capacity to read and write." This provision was in the spirit of the times; literacy tests even existed in the United States in the 19th century.

The constitutional experiment which transpired in Wallachia in the short period before the invasion by Russian and Turkish troops, included the works of a ‘Property Committee’, which aimed at reconciling the interests of the landlords and the peasants, and, therefore, to achieve genuine land reform, a utopian idea for the epoch, yet of great significance to the constitutional history. This experiment became a laboratory for future attempts at solving the peasant problem. The agrarian reform was to include, in the spirit of lawfulness, an allotment of land to the peasants and compensation paid to the landlords.

The Moldavian revolution, which began more modestly than the Wallachian, started with a ‘Petition-Proclamation’ on March 28, 1848. It did not manage to impose itself. Its immediate proximity to Czarist Russia led to its rapid repression. What should be mentioned is the fact that the experience of exile, which followed in Bucovina and Transylvania, radicalized the process of political and constitutional thought. The relative moderation of the Moldavian revolutionary program, in comparison with its Wallachian counterpart has already been underlined in the historical literature.

G. Ibraileanu, wrote half a century later, in The Critical Spirit in Romanian Culture, about the differences of character and education between the two ‘elites’: to the abstract and ‘revolutionary’ Wallachians, the Moldavians would oppose a critical spirit based on a more profound historical culture, with conservative tendencies. It is no accident that the author of The Project of the Constitution, Mihail Kogalniceanu, was one of the publishers of the local chroniclers. He was a mind of a tremendous historical culture, who studied in France and Prussia. The Project of the Moldavian Constitution, elaborated while he was exiled, has the historical merit of offering the first systematic form of a constitutional document. Ion Câmpineanu’s project, or ‘The Proclamation of Islaz’, could not attain the degree of juridical equilibrium of the Moldavian document.

It was modeled after European constitutions. It includes a chapter referring to "Debts and Duties," a set of guarantees of civil liberties, comparable to the provisions found in the first ten amendments to the American Constitution, while the ‘Legislative Power’, the ‘Judicial Power’ and the ‘Executive Power’ had their competencies well established.

The character of the regime was that of a constitutional, elective, national monarchy, in the tradition of the ‘Regulations’. The legislative power was elected through a system which combined wealth and education or position. Judicial equality was consecrated as the rule of the State. ‘The Ministers’ Council’ had the role of a cabinet – a central principle of constitutional monarchy [the inviolability of the king and the ministers’ responsibility] being specifically mentioned in Article 50.

The description of the state as constitutional is probably the most significant aspect of this project. The presence of the attribute ‘constitutional’ proves the extent to which the Western pattern was molding the tradition of political and juridical thought. This project also solved, for the first time, the problem of sovereignty in a manner closely related to European constitutionalism. "The exertion of sovereignty by the nation is delegated by the election to the National Assembly and to the Ruler." [Art. 31]

Mihail Kogalniceanu’s project is a symbolic stage in the process of the reception of Western constitutionalism. The French and Belgian [the Constitution of 1831] influence mediated a legal synchronizing. Generally speaking, the type of modern parliamentarism is indeed framed in the Moldavian 1848 constitution.

The years between 1849 and 1853 marked, in the Romanian space, a period of apparent return to the ‘Organic Regulations’. The Constitution of Principalities, according to the Balta Liman agreement between Russia and Turkey, May 1st, 1848, was recognized as the two ‘Organic Regulations’, the Romanian States being under a regime of military occupation.

However, the most significant development remains an event which occurred outside of the Romanian Principalities: the exile of the Romanian revolutionaries in Western capitals and in the Ottoman Empire. The importance of this event comes from the fact that in the space of exile, the ‘Romanian Question’ gradually transforms from a local problem into a concern of the Great Powers. At the same time, the idea of the unification of the two Principalities gradually becomes more of a concern for the exiled Romanians. Romanian was no longer an abstraction; the differences of local patriotism faded in the favor of a Romanian national identity.

A historical accident modified what seemed to be an immutable order: the ‘Crimean War’ reestablished Russian Czarist authority in the Principalities, while the Peace Congress of Paris in 1856 radically modified the international status of the Principalities. Russia’s protectorate was replaced, in a significant way, by a collective guarantee of the seven Great Powers [Russia, Turkey, Austria, Sardinia, France, England and Prussia]. Moreover, ‘Ad-hoc Divans’ [estates’ assemblies] were to be convoked in the two Principalities in order to make "the Claims of the inhabitants of the Romanian States" known to the Powers. The diplomatic language could not elude reality, what happened was a constitutional reform in which the Great Powers and the local Assemblies participated collectively.

Ten years after the European revolution, modern constitutional ideas were again present in the claims made by the Divans. The central idea of a representative regime and of the rule of law in the year 1848 was now accompanied by another goal, which was absent in the previous revolutionary movement: the unification of the Principalities under the rule of a foreign Prince from a dynasty ruling in Europe.

Titu Maiorescu, the founder of the Romanian critical literary movement and a conservative politician, characterized the claims of the Ad-hoc Divans as being the origin of modern Romania, explicitly rejecting the ideas of the revolution from 1848 as an abstract radicalism.

The unionist militantism was part of the spirit of that time: in the century of nationalities, the Romanian demands found the sympathetic support of the French Emperor Napoleon III, being at the same time a contemporary with the Italian Resorgimento. The solution of a foreign prince on the throne of the unified Principalities was in the spirit of an older tradition in the projects of reform: ever since the end of the 18th century, the native boyars requested the emancipation of the Great Powers, accompanied by the election of a ruler of a Western house. The reasons were obvious: a foreign prince was considered a guarantee of internal equilibrium, due to the fact that he did not belong to any of the boyar factions, and as a modality to safeguard the national prestige. The ‘wishes’ of both Divans included the same aims: the Principalities’ autonomy, the unification into one single state, ‘Romania’, a foreign prince and a ‘representative constitutional regime’. The European originated constitutionalism was interacting with the fight for national identity.

The claims of the Consultative Assemblies of the Principalities were only partly mentioned in the Paris Convention in August 1/19, 1858, a treaty which played mutatis mutandis the role of a constitution. This was due to the fact that beyond terminology, its contemporaries themselves interpreted the text as a constitution, the first one, in the modern European sense, acting in the Principalities. The unionists criticized it because it did not formally recognize the unification: the two Principalities were to preserve their juridical identity, within the framework of a ‘United Principalities’. Therefore, there were two Rulers, two governments, two Judicial Assemblies, and also some common institutions: The Central Committee, entrusted with the legislative unification, and the High Court of Cassation and Justice. The larger goal of the document was the unification, but the way to achieve it did not seem to be the one desired by the local elites.

From a constitutional point of view, the Convention confirmed the end of the ‘Old Regime’ in the Romanian Principalities: any privilege, license or monopoly was abolished, the corollary being that of "everyone’s equality before the law, of taxes, and of the right to hold public offices" [article 46]. Individual security and the right to a fair trial were guaranteed.

The representative regime, in the European constitutional sense, was thus regulated – a unicameral system, the functions of the second chamber being fulfilled, only seemingly paradoxically, by the Central Committee: a unicameral system that was close to the French Constitution of 1791, or to the Belgian Constitution of 1831, two decisive influences in the genesis of modern Romanian constitutionalism. The political system of constitutional, elective, life-long monarchy was similar to Mihail Kogalniceanu’s model of 1848. The ‘Hospodar’, the Ruler, exerted the executive power, assisted by his ministers, while the judicial power was collectively exerted by the Assembly, the Ruler and the Central Committee.

At that time, the regime introduced by the Convention was interpreted as having a parliamentary character. The existence of a President of the Council/a Prime Minister implied for the political actors the Cabinet’s responsibility before the Assembly. The stipulations of the Convention made use again of the laconic manner of presentation of ministerial political responsibility, as it was framed in the 1814 and 1830 French constitutional Charts, and in the Belgian Constitution of 1831. "The ministers are responsible for the violation of the law and for any misuse of public money" [Art. 15]. Another principle of constitutional monarchy was also enlisted: the documents of the Prince were to be countersigned by the competent minister in order to confer on them validity.

The introduction of an ‘impeachment’ procedure in the case of a minister is another product of the influence of European constitutions: the Assembly pronounced the judgment with a two-thirds vote, while the trial was entrusted to the High Court.

The Romanian Parliamentarism has its origins in the provisions made by the Convention: the electoral law used an indirect voting system for the lower classes. For the first time, the idea of an Estate Assembly was replaced with that of an elected Chamber in accordance with European norms. The limited number of voters in the Principalities did not alter the liberal character of the Chamber.

Paradoxically, the document’s laconism made the Unification possible – through what could be called a constitutional artifice. Alexander Ioan Cuza was elected as Ruler in both Assemblies, which brought the Unification of the Principalities into being on the basis of a personal union on January 24, 1859. Only three years later, on January 24th, 1862, the administrative unification of the Principalities, along with the creation of a single central government in Bucharest, was completed.

The elective assemblies of the two Principalities became the space where the political cleavages began to appear: the main demarcation line, in an European sense, remained that between conservatives and liberals. The rhythm of the reforms, the extension of political and civil rights, but most of all, the problem of land reform made the differences of doctrine manifest.

Alexander Ioan Cuza’s seven-year rule, until 1866, accelerated the process of modernization in the Principalities. The European path followed by Romania was by then a certitude: universities were founded in Iasi and Bucharest; a Civil Code based on the French model and Penal Codes, along with Penal Procedure Codes, were adopted. Also, the estates of those monasteries that belonged to Mount Athos were secularized. Romania was characterized by a zeal of modernization which is almost unparalleled in Eastern Europe.

The agrarian problem, or rather the impossibility of solving it, due to the opposition of the conservatives, makes the May 2nd, 1864 coup d’etat, organized by the Ruler, unavoidable. It was a solution inspired by the 1799 and 1852 Bonapartist model. The new regime of the authoritarian monarchy was animated by the constitution of the second empire from 1852 and has as its constitutional basis in the ‘Developing Statute of the Paris Convention’ and in an election by a plebiscite. This was the first Constitution issued by Romanians. The concern of Prince Cuza to expand his authority through the introduction of a second Chamber, designated by himself as the ‘Corpul Ponderator’, remains central. At the same time, the Assembly’s authority was severely limited.

In the new regime, which introduced a broader electoral law and used the ‘traditional’ means of political caesarism, a combination of popularity and authoritarianism, adopting land reform was no longer a problem. Though incomplete, land reform would manage to protect the peasants from proletarianization.

Prince Cuza’s authoritarian Bonapartism became the catalyst of an alliance between the liberals and the conservatives. Impossible at first sight, the alliance was concluded on the basis of a historical compromise, meant to safeguard real estate and political liberties. For Romanian history, the forced abdication of Cuza on February 11th, 1866 has the symbolic significance of the ‘Glorious Revolution’ of 1688: a historical compromise meant to restore, at least partially, liberties, including property rights. With Cuza’s abdication, the solution of a foreign prince became again an available option for the political elite – in fact, bringing a foreign prince to the throne was not a unique choice – after gaining internal autonomy, Greece and Bulgaria would proceed in the same manner.

Following a plebiscite, on May 10th, 1866, Carol de Hohenzollern Sigmaringen, was sworn in as the prince of Romania – a pragmatic decision that avoided the internal conflicts of Serbia or of the Latin-American states. The compromise of accepting the constitutional monarchy, which was made by the 1848 generation, was a sign of the prevalence given to the interest of the community over any factional interests. A republic in Eastern Europe would have been a dangerous experiment.

After Cuza’s abdication the making of a new fundamental pact was necessary. A unicameral Constituent Assembly was elected and until June 1866 the debates centered upon the different solutions regarding the institutional establishment.

The possible sources that can be invoked in the discussions of the 1866 Constitution are quite varied. One set of sources reorganizes the constitutional projects prior to 1859. Shortly after the unification, the Central Committee from Focsani drafted a constitution; seven years later, in 1866, the State Council drafted, in its turn, another constitution which would form the basis of the Constituent Assembly’s discussions [in both cases, the projects specified a unicameral parliamentary system].

A second set of sources for the 1866 constitutionalism can be identified in the fundamental documents of France from 1814 and 1830 and in the Belgian documents from 1831. The Belgian influence is far from marginal; ever since 1848, the moderate and balanced Belgian constitutional monarchy, visibly exerted its attraction over Romanians. The Paris Convention made the already existent attraction even stronger. As a neutral country which exerted minimal influence over continental Europe, Belgium furnished a model for Romanian legislators from many points of view. Ever since the reign of Alexander I. Cuza, Belgium was the model for the press law of 1862 and for the law of local governmental organization and for the expropriation law of 1864.

The Belgian Constitutional was in fact a product of the a synthesis between the French and the British traditions, which brought it closer to Romania. The 1831 Belgian constitution made use of the heritage of the French Charters of 1814 and 1830, which brought to the continent the model of the British monarchy. The ‘Magna Carta’ as a contractualist paradigm, a covenant between the sovereign and the people, as represented through the Parliament, shaped the French and the Belgian Constitutions of 1830 and 1831. Indirectly, the Romanian Constitution of 1866 was integrated with a ‘tradition’, which had its origins in British innovations.

The severe judgment of those who saw in the Constitution of 1866 a simple copy of the Belgian document of 1831, comes from the neglect of the local constitutional tradition – a sequence of projects that prepared the elite for the final option which was made in 1866.

The goal of the fundamental act, the first elaborated by a Romanian parliament without any external intervention, was to transform the state into a ‘constitutional state’, as expressed in the Moldavian project from 1848. ‘Constitutionalism’ implied separation of powers in correlation with national sovereignty, which was exerted by delegation in the manner indicated by the Constitution. The executive, legislative and judicial powers had their powers specified in a text which for the first time mentioned the modern title of the state, ‘Romania’.

The constitutional monarchy had the same status as that of the French kings, whose powers were defined by the constitutional charters. The Prince’s extended executive powers and his participation in the legislative power placed him in the position of an arbitrator of political life. The Romanian monarchy that arose was of a dualist parliamentarism, being defined by a relative equilibrium between the Chambers and the Monarch. A compromise in the Constituent Assembly resulted in the provision of an absolute veto for the Monarch, in other words, the possibility to refuse the sanctioning of a law passed by the parliament. This compromise satisfied the demand of the conservatives to protect the authority of the Prince.

The ‘constitutionality’ of the act of founding the Romanian state implied a systematic and explicit establishment of public rights and liberties. The ‘classic’ form of the fundamental act followed the continental and American tradition of integrating a ‘Bill of Civil Liberties’ into the constitution. The text from 1866 only confirmed the previous endeavors of the constitutional projects regarding civil liberties.

By contrast with the Convention of 1858 and the ‘Developing Statute of 1864’ the regulation of civil liberties was extremely careful, including a large array of rights and liberties, from the right to property to the interdiction of censorship and the death penalty. The constitutional texts acted as an ultimate guarantee in significant detail in due process matters, including carefully described trial procedures. As a corollary, the Romanian State prohibited the extradition of political refugees, which resulted in a wave of Russian and south-Danubian political activists who found refuge in Romania.

The legislative power was central in the state: initially, the project submitted for debate in the Constitutional Assembly stipulated a unicameral system. The conservative reaction to the liberal demand for a single chamber led to the creation of the Senate, for the second time, after 1864. Political and juridical arguments pleaded for a superior chamber.

The conservatives argued for the Senate in the Constitutional Assembly by using a set of European justifications. They asserted that a second chamber, which reflected through its representation, the characteristics of property, social superiority and long lasting services, was a protection against any attempt to violate property rights or political rights by a potential threat of the tyranny of the majority. The debates of the Assembly recounted the traditions of European constitutional law, which had their origins in the works of Montesquieu, who emphasized the importance of the two Chambers.

The existence of a constitutional monarchy in which the person of the king is sacred implied a certain responsibility of the Cabinet before the Chambers. Taking over the Belgian solution of 1831, the Constitutional Assembly superficially declared the ministers as being ‘responsible.’ The absence of specific provisions explicitly stipulating the political responsibility of the Cabinet led to the development of a constitutional custom which consecrated this duty as such. Although the Romanian constitutional system traditionally defined itself through the primacy of the executive power, the Parliament used its right to force the dissolution of the Cabinet by casting a vote of ‘no-confidence’. The fact that the budget had to be passed by the Parliament was a supplementary guarantee.

From an electoral point of view, the members of the Constitutional Assembly chose the solution of a tiered voting system. The reasons which caused the Constitutional Assembly to opt for this were derived from the Romanian reality of an existing class of landowners, the young bourgeoisie, which was mature enough for political activity, while the rural majority of the population was deprived of the necessary education and the economic independence which were both required in order to make possible active participation in political life.

The Chamber of Deputies with its four electoral colleges made it possible for the peasants to be represented through an indirect vote; the rural community nominated thus the delegates who voted in its name. However, the landlords and the urban voters, all of them subject to stringent qualifications, elected the majority of the deputies, while the deputies representing the peasants had an insignificant electoral influence.

The Senate whose existence was justified by its elitist character, almost exclusively represented the landlords, which guaranteed the maintenance of the ‘Status Quo’. The representation of the professional elites in the Senate was guaranteed by exempting the former ministers and those who had a Doctoral degree from property qualifications, by the existence of rightful senators, leaders of the orthodox clergy and by allowing professors to name their representative in the Senate.

The limits of democracy, which are quite obvious from a contemporary analysis, came from the goals of the Constitutional Assembly to guarantee liberties by entrusting the government to those capable of deciding independently in public matters. This was an option that considerably narrowed the electorate, leading to unequal parliamentary representation, similar to that which led in Great Britain to the movement for widening the franchise, and to the ‘Reform Charters’. The Romanian solution could not have been innovative: the successive extensions of the right to vote reached their climax in 1917 with the stipulation of universal suffrage.

The most important challenge to the constitutional compromise of 1866, a constitutional structure which was European in its spirit and institution, may be found in the difference between the ‘legal’ and the ‘real’ country. Again, this was a problem faced by many transitional societies in the 19th century. The Romanian state and its regime of freedoms and guarantees similar to Western European states, was the only Eastern European state which practiced constitutionalism, but was confronted with the existence of a rural population which was obviously retarded in comparison with the urban one. Romania was the juxtaposition of two different states, one modern and synchronized with the West, and another rural with a limited franchise and in chronic poverty.

The contradiction between the ‘European form’ and the local ‘content’ constituted itself as the ground of a conservative critique, which began with an article published by Titu Maiorescu in 1868, "Against the Contemporary Trends in Romanian Culture." The main question raised by his criticism had to do with the relevance of establishing a European regime in a country which was unprepared to make a full use of its mechanisms. Hence the feeling that the fundamental document of 1866 was a ‘form’ alienated from the body of society. The relationship between a constitutionalism of European origin and a Romanian society, still tied to traditional values, was a dominant feature of the epoch following 1866.

In 1877 Romania proclaimed its independence, and in 1881 it became a kingdom. Up to a point the Monarchy of Carol I [who reigned until 1914] had the dimensions of a local Victorianism – a sense of duty and an inborn respect for tradition made the never too popular Monarch a model for some. Instead of exercising a direct political influence, Carol I preferred the exercise of a disciplining impact upon the parties, by imposing a rigor unknown to the Romanian people. The initial reasons for bringing a foreign prince were retrospectively confirmed to the extent that the dynasty fulfilled its historical role. In this regard, one can contrast the stability of the Romanian monarchy with the structural instability of other Balkan kingdoms.

Between 1866 and 1938, the year when the constitutional monarchy ended, Romania did not experience civil wars. The long rule of Carol I – almost half a century – is a reality which shows the European dimension of the Romanian kingdom.

Constitutionalism also implied the coming into being of a system of parties. In 1875 the liberal current, in the European sense of the term, coagulates into a political party, followed in 1881 by the Conservative Party. The political instability in the two yeas following 1866 is followed from 1888 by a period of alternation between the two parties to the government, which became known as ‘governmental rotation’. Given the conditions of the limited franchise, political life was dominated by corruption, also common to other European countries. The extreme liberty of the Parliamentary debates evoked, through their rhetorical eloquence, the French and British Chambers.

The political elites, made up mostly of landlords, lawyers and industrialists, were confronted progressively with the extension of the vote, culminating in universal suffrage. The system of the electoral colleges [tiered voting] was seen more and more as limiting the political participation of peasants and bourgeoisie in an unacceptable manner. C.A. Rosetti’s liberal radicalism pleaded for universal suffrage, following the model of the French Republic. Other more moderate solutions proposed the creation of new electoral colleges. The significance of universal suffrage became central to the public debate which was following a European evolution.

The reforms of 1884, which reduced the number of electoral colleges, can be compared in terms of their efficiency with the ‘Reform Act of 1832’. The preponderant position of the landlords was not seriously affected, but the precedent of constitutional reform was already present. If the conservatives demanded the maintenance of the 1866 status quo, the liberals openly acted for the extension of political rights.

The constitutional problem was complicated by the combination of the demands to extend political rights with those for land reform, which was meant to continue the reforms of 1864. The constitutional principle of ‘sacred and inviolable property’ was in conflict with the hard facts of the ‘real’ country, where the rural territory was dominated by an unjust distribution of land. A series of peasant rebellions, culminating with the one in 1907, made this an urgent problem. The agrarian and electoral reforms, the main challenges of Romanian constitutionalism, were to be adopted upon a legal, and not a revolutionary basis. In 1913, the Liberal Party, through its leader, I.I.C. Bratianu, again raised the two matters in a political manifesto.

World War I radically modified the context of the public debate. ‘The constitutional question’ was now marked by the military engagement of the Romanian kingdom on the side of the Triple Entente, against the Central Powers, in the summer of 1916. Nevertheless, the crucial challenge to the legal order of the Romanian state came from Russian Communism. The two Russian revolutions, the culminating point being the Bolshevik revolution, seemed to make the socialist arguments even more powerful, by favoring the revolutionary approach over the legal one.

The final step towards the democratization of the constitutional system, by the acceptance of universal male suffrage and the principle of land reform, was made in a manner which avoided revolution – in its refuge in Iasi, the Romanian Parliament accepted the amendment of the Constitution. Romania was the only country in the Balkans and Central Europe that managed to avoid a revolution; the constitutional nature of the Romanian state was saved through another historical compromise. By the Decree of November 16th, 1918, universal male suffrage, on the basis of proportional representation, became the foundation for the election of the Romanian Parliament. The extensive land reform, in its turn, came into being in 1920-1921.

National unification became possible in 1918 due to a fortunate series of circumstances. First of all there was the legal background of the decisions made by the National Assemblies of Basarabia, Bucovina, Banat and Transylvania. Secondly, there were the ‘14 amendments’ of President Wilson. Also, a significant Romanian American Diaspora and a number of Romanian intellectuals lobbied in all the capitals of the allied powers. On December 1st, 1918, through the unification with Transylvania, the process reached an end in a way which hardly could have been anticipated at the beginning of World War I.

The constitutional reform of Greater Romania reached its climax in 1923, when a new Constitution, in fact an extensive revision of the Constitution of 1866, was adopted. The model of the centralized state of a French origin and the regime of the constitutional monarchy were preserved, while minority rights and the emancipation of the Jewish population were added.

Universal suffrage made important changes possible in the legal order. The Assembly of Deputies, the lower Chamber, became the expression of the national will, as represented through proportional voting. The liberal project, initiated through the Constitutional Assembly, changed the Senate in a considerable way by attempting to reach an equilibrium between the senators who represented the direct electoral body and those who represented the professional, military, intellectual and ecclesiastical elites.

The character of the Senate may be a key to understanding the fundamental document. The Romanian Constitution aimed at establishing a ‘joint government’ in the tradition of Polibiu’s and Cicero’s reflection, in which democracy, aristocracy and monarchy were balanced against one another. In the spirit of the Romanian Constitution, the goal was to reconcile the political representation of the elite with the democratic imperative, under the ‘Rule of Law’. In 1923 Czechoslovakia and Romania were the only states in Central and Eastern Europe founded upon the principle of separation of powers and on pluralism. The flaws in the electoral mechanism and the administrative misapplications could not alter this constitutional character. As a matter of fact, Romania can claim some historical merit, considering that between 1858 and 1937 parliamentary government was not negatively affected, surviving the war and the temptation of revolution. However, the parliamentary cycle was to end in 1938, Romania and Czechoslovakia being the only countries in the region to avoid totalitarianism until that time.

Romania’s transition to constitutional modernity, by way of synchronization with the Western world, is no accident or isolated reality. Far from being a failure, it represents a surprising success. Romania’s proximity to Russia and its relatively undeveloped economy did not impede the construction of a constitutional parliamentary system. Western legal values fertilized the local soil, aiding modernization. Romania’s situation can perhaps also be explained by its Latin origins and by the European character of its history. A comparison with Czarist and Communist Russia proves to what extent the native elites are responsible for the construction and consecration of a common good.

Contrary to appearances, the Constitution of 1923 was not an imitation lacking substance, but the conclusion of a century of projects and constitutional evolution, a century in which Romanians assumed the European constitutional paradigm, as a part of Europe.

 

Translated by Olivia Horvath

 

NOTES

 

 1Ioan Stanomir, Lecturer, Faculty of Political Science, University of Bucharest.

 2We can say that the document was written by Ionica Tautul, Andronache Dornici and Iordache Draghici.

 3The dates herein are often given showing the date in both the old style and new style calendar. Therefore, under the old style calendar it occurred on August 16th, while on the new style calendar it occurred on August 4th.

 4However, in the United States it was used predominantly as a technique in some southern states to prevent black people from voting and was eventually outlawed by Federal statutes for this very reason. See Edward L. Barrett, Jr., Constitutional Law: Cases and Material, The Foundation Press, Inc., Mineola, NY, 1977, p. 1084; see also Susan Welch, John Gruhl, Michael Steinman, John Comer and Susan M. Rigdon, American Government, 5th Ed., West Publishing, Minneapolis/St. Paul, 1994, p. 180.

 5Titu Maiorescu, Istoria contimporana a Romaniei, Bucharest, Socec, 1925.

 

BIBLIOGRAPHY

 

I. For a historical approach to the political events and an analysis freed from the clichés of the old historiography, see: Keith Hitchins, Romania, 1866-1947. Keith Hitchins, Romania, 1774-1866, Oxford University Press, 1994.

II. For a synthesis of Romanian history, see: A History of Romania, The Center for Romanian Studies, Romanian Cultural Foundation, Iasi, 1998

III. The coming into being of the new spirit, under the influence of the French and more general Western ideas, was approached in the Romanian culture as part of a larger process of the coming into being of romanticism: Paul Cornea, Originile romantismului romanesc, Minerva, Bucuresti, 1972.

IV. An almost complete presentation of the role that different models had in the becoming of the Romanian culture: D. Popovici, La Litterature roumaine dans l’epoque des lumieres, Sibiu, 1945.

V. For an anthology of the documents which reflects the attempts to reform before 1830, see: Vlad Georgescu, Memoires et projets de reforme dans les Principautes Roumaines, 1764-1830, 1970.

VI. For another perspective on the Romanian culture, that of Orthodox Europe and of its political and cultural models, see: Al. Dutu, Political models and national identities in Orthodox Europe, Babel Publishing House, Bucuresti, 1998.

VII. For the period after 1821 and for the changes from the realm of politics during this time, see: I.C.Filitti, Framintarile politice si sociale in Principatele Romane de la 1821, Bucuresti, 1832.

VIII. For the period of the Organic Regulations, see: I.C.Filitti, Domniile romane sub Regulamentul Organic, 1834-1848, Bucuresti, Socec-Sfetea, 1915.

IX. For the Revolution of 1848 see the collection of documents in three volumes edited by Cornelia Bodea, at Editura Enciclopedica, Bucuresti.

X. Also on the movement of ideas during the Revolution of 1848, see: Paul Cornea, Gindirea romaneasca in epoca pasoptista (1830-1866), two volumes, Editura pentru literatura, Bucuresti, 1968.

XI. For an analysis of the genesis of political parties centered around the distinction between liberals and conservatives, see: A.D. Xenopol, Istoria partidelor romanesti, de la origini pina la 1866, Bauer, Bucuresti, 1910. Apostol Stan, Grupari si curente politice in Romania intre Unire si Independenta, Bucuresti, 1977.

XII. For a remarkable synthesis of the history of political ideas in Romania, see: Vlad Georgescu, Istoria ideilor politice romanesti, 1369-1878, Ion Dumitru Verlag, Munchen, 1987.

XIII. For a picture of the intellectual framework and the political debates after 1859, see: Apostol Stan, Putere politica si democratie in Romania, 1859-1917, Albatros, Bucuresti, 1995.

XIV. For an analysis of the process of creation of the Constitution of 1866, see: Al. Pencovici, Dezbaterile Adunarii Constituante din anul 1866 asupra Constitutiei si legii electorale, Bucuresti, 1883. I.C.Filitti, Izvoarele Constitutiei de la 1866 (Originile democratiei romanesti), Bucuresti, 1934

XV. For the perspective of "Junimea" on the modern political development of Romania, see: Titu Maiorescu, Istoria contimporana a Romaniei, Bucuresti, Socec, 1925.

XVI. For an anthology of Romanian conservatism, see Polis, 1-2/1998.

XVII.On the Constitution of 1923, see Constitutia de la 1923 in dezbaterea contemporanilor, ed. D. Gusti, Humanitas, Bucuresti, 1990.

XVIII. For a comparative analysis of Romanian constitutional law, see: Al. Tilman Timon, Les influences etrangeres sur le droit constitutionnel roumain, Bucuresti, Cugetarea-Georgescu Delafras and Paris, Librairie du Recueuil, Sirey.

XIX. For an anthology of representative texts on the evolution of Romanian constitutitional law, see: Cristian Ionescu, Dezvoltarea constitutionala a Romaniei, 1741-1991. Acte si documente, Lumina Lex, Bucuresti, 1998.

XX. For a systematic approach to the current institutions of Romanian constitutional law (the Constitution of 1991), see: Tudor Dragan, Drept constitutional si institutii politice, two volumes, Lumina Lex, Bucuresti, 1998. Ion Muraru, Drept constitutional si institutii politice, Actami, Bucuresti, 1998.

XXI. For a historical perspective on the Romanian Parliment, see: Apostol Stan, P. Cancea (editors), Istoria parlamentului si a vietii parlamentare in Romania pina la 1918, Academiei Publishing House, Bucuresti, 1983. T. Draganu, Inceputurile si dezvoltarea regimului parlamentar in Romania pina la 1916, Dacia Publishing House, Cluj, 1991.