1 USA

The first line of modern constitution making began in the British colonies in North America, which obtained independence and eventually created a unified state in the revolutionary period of 1775–91. In this environment, the origins of constitutional law were defined by changes in imperial society.

The emergence of revolutionary constitutionalism in the British colonies was originally shaped by transformation in the British Empire. During its foundation, the British Empire in the North Atlantic was a loose agglomerate of territories possessing diverse legal relations to the English (later British) crown. Some colonies were founded through royal charters (Virginia, New Hampshire, Massachusetts); some were based in proprietary grants, close to personal fiefs (Pennsylvania, New Jersey, New York, the Carolinas, Maryland); others, such as Rhode Island and Connecticut, had corporate charters guaranteeing almost unlimited self-government. Generally, however, the relation between the colonies and the metropolitan power was determined by the fact that many colonies were established by individual ventures. Before the founding of Georgia in 1732, which was initially governed by trustees in London and became a royal colony in 1752, Jamaica was the only English colony created by direct royal intervention as it was transferred to the English crown by treaty.Footnote ² Consequently, colonial relations to Britain were mainly mediated through attachments of a commercial nature. The military basis for imperial rule in the northern Atlantic was initially relatively weak, although surely not non-existent. Even in colonies administered by royal governors, British military presence was low.Footnote ³ This was not unique to the North Atlantic. British expansion in the region now belonging to India was only loosely shaped by public institutions. The role of the British East India Company in consolidating British control in India was often compared to the acts of commercial organizations in creating colonies in America.Footnote ⁴

By the middle of the eighteenth century, the British Atlantic colonies had begun to witness a solidification of imperialism. This solidification was shaped by intensifying conflicts between the British government and other states with colonial pretensions in the Atlantic region. Such conflicts culminated in the Seven Years’ War, which was subdivided globally into numerous theatres of war. As mentioned, the primary hostility in this war, between Britain and France, resulted mainly from territorial disputes in backcountry Pennsylvania. Such disputes would have assumed limited importance before the thickening of imperial government. However, these disputes gave rise to substantial mobilization of troops at the imperial centre, eventually involving multiple military clashes between Britain and France across northern America. This solidification was also reflected in a series of institutional changes. Through the eighteenth century, the British colonies in the Atlantic were more closely assimilated to the imperial polity, whose legislative centre was in London. Military bodies played a central role in this transformation and military pressures drew the imperial polity together. This was partly a process of subordination, as British military bodies stationed in the colonies bound colonies and metropole together in military hierarchies. However, this process linked the empire and the colonies at a lateral level, and it conferred specific constitutional distinction on colonial citizens and on colonial institutions, which began to operate as organic parts of the empire. Intensified imperialism was not clearly distinct from extended state formation. It created the basis for a large, decentralized North Atlantic polity. Together, these factors created the constitutional conjuncture for the American Revolution.

First, during the Seven Years’ War, the British army acquired greater prominence in the North Atlantic, frequently forming the most immediate contact between inhabitants of British colonies and the metropolitan government. Initially, the British army appeared in colonial America as an organization whose purpose was to defend British territory inhabited by British–American subjects against French troops. In many respects, such territorial defence was a joint endeavour. It involved common military mobilization in Britain and in the colonies in which colonial troops were often subject to British military articles, forming parts of the British army. With regional variations, the Seven Years’ War saw extensive conscription in the American colonies, both in state militias and in quotas dispatched to the British army. In some areas, British colonial warfare induced unprecedented militarization in American society. Many colonies introduced draft and anti-desertion laws in the Seven Years’ War, and members of colonial populations, often residing in remote rural localities, were connected through military organizations.Footnote ⁵ This process necessarily strengthened ideas of imperial citizenship; the shared discharge of military duties meant that colonists entered unprecedented immediacy to each other and to the imperial polity. Ultimately, the imperialist objectives of the British crown were successfully achieved and France was defeated in 1763. Through the latter stages of the war, the British Empire underwent great enlargement and British–American subjects jointly engaged in an expansionist war. The Treaty of Paris in 1763 then transformed the legal nature of lands Britain held in America. As mentioned, most American lands had initially been occupied by private enterprise or charter. From this point on, military conquest, coordinated by public institutions tied to the British crown and sanctioned by international treaty, formed the legal basis for British control in large parts of the empire.

At one level, the Seven Years’ War connected Britain and its colonies in an increasingly dense system of institutional integration and shared citizenship. However, for many inhabitants of the American colonies, integration in the British polity had ambiguous implications and their position in the polity after 1763 was uncertain. Through the war, imperial subjects from Britain became visible in the colonies as a governing group that conducted rapid military expansion in former French parts of North America. Clearly, American residents participated fully in this process; as soldiers and settlers, they were centrally involved in territorial acquisition. However, this military enlargement altered the position of British government in American colonies, where, previously, most regions had experienced only light imperial rule. Indeed, the increased British military presence raised sensitive constitutional questions about the relation of the British army to American colonies and about the powers the British army could exercise. Above all, this placed inhabitants of the American colonies in a strained constitutional position as many of them had been deployed by an army for shared imperial protection, but this army then asserted external military authority in their domains, acting – in effect – as an occupation force in their society. Through this, British expansion in North America meant that inhabitants of British colonies were expected to act as colonizers and objects of colonization at the same time. The problems inherent in such experiences were reinforced by the fact that colonial inhabitants were not well treated by agents of the British army. Relations between military and civilian authorities in the Seven Years’ War were often poor and protest about British requisitioning, impressment and quartering of troops was frequent.Footnote ⁶ American soldiers were not highly regarded in the British army and colonial troops and state militias were often ridiculed. This was not improved by the fact that, at least in earlier initiatives, the British military leadership lacked competence.Footnote ⁷

Ambiguities in this situation were greatly exacerbated by the fact that, after the end of the Seven Years’ War, the British military presence was not withdrawn and a British standing army became a feature of colonial administration. Moreover, as the British army had been stationed to defend the boundaries of the British Empire in North America, the government in Westminster demanded that fiscal resources to support the army should be levied in the colonies. This created a situation in which the British empire became institutionally present both as an external military force and as a fiscal state. These processes were reflected initially in policies introduced by Grenville in 1763–5, in which the British government passed new laws to generate more tax and strengthen British control over the colonies.Footnote ⁸ This culminated in the Stamp Act (1765) and the Townshend Acts (1767), which imposed new taxes on American colonial assemblies.

Second, during the Seven Years’ War, powers exercised by colonial assemblies in North America were extended, as such legislatures assumed central roles in the war effort.Footnote ⁹ Throughout the war, the lower houses of many state assemblies obtained increased responsibility for raising and provisioning troops, and the Westminster government widened the functions of such legislatures because it relied on them for resources and revenue.Footnote ¹⁰ Through this process, elected members of colonial assemblies acquired new authority. In states subject directly to British government, such officials were able to assert powers originally exercised by royal governors, including some control of public spending, the framing of financial legislation and the regulation of militias.Footnote ¹¹ By consequence, members of colonial legislatures consolidated their position as actors in a colonial constitution, claiming a distinct set of rights and obligations. One outcome of this was, naturally, that such legislatures, reinforced by colonial war, were reluctant to surrender their constitutional powers after 1763. After 1763, spokespersons for American liberties used this position to declare that ‘rights granted to the British colonies’ necessarily included ‘equal freedom with the mother state’. This theory resulted in the claim that the British Empire ‘consists of many separate governments’ in which ‘no single part’ could impose its power on other parts.Footnote ¹² Leading advocates of increased autonomy in the American colonies justified their opposition to Britain, not simply by denouncing the presence of British armies, but by condemning the methods used to finance imperial armies as violations of a transatlantic constitution. Critics of the empire advocated ‘harmony between Great Britain and these colonies, ON A CONSTITUTIONAL FOUNDATION’.Footnote ¹³

Together, these factors set in motion the tax revolt that eventually led to the wars of American independence.Footnote ¹⁴ Through its military consolidation in the eighteenth century, the British Empire embarked on a paradoxical pattern of formation. The empire asserted greater control of its constituent parts, and, owing to warfare, imperial subjects were integrated in a shared set of loyalties and duties as imperial citizens. At the same time, citizenship remained asymmetrical and rights granted in warfare lost force outside military environments. This stimulated a deep constitutional conflict. In this conflict, British colonies, perceived by many of their inhabitants as parts of an extended imperial polity, were expected to finance an army, which some of their inhabitants perceived as part of an external occupation regime. This conflict occurred against a background in which, within the colonial states, legislative bodies had assumed augmented constitutional powers, amongst which the power to approve or reject fiscal extraction was jealously guarded. This conflict culminated in British military occupation of regions that were recalcitrant in complying with imperial levies, notably the port of Boston in 1768. In this event, the arrival of British troops to defend metropolitan claims against Bostonians visibly stirred memories of the arrival of British redcoats to defend imperial rights against the French only ten years previously. Hatred for the invasion was increased by the fact that, as heirs to the British Whig tradition, members of colonial elites despised standing armies, depicting the British military presence in North America as a tyrannical regime.Footnote ¹⁵ In each respect, conflict was concentrated on the implementation of a constitutional order to support military occupation.

2 France

The origins of constitutionalism in France can be found in a similar constellation. The later eighteenth century saw a substantial power change in Europe resulting from the Seven Years’ War. Through this change, Britain became the dominant imperial nation and France entered a period of financial crisis because of war debts accrued through unsuccessful imperial conflicts. Owing to its parlous fiscal position, the Bourbon monarchy in France was exposed to numerous reformist pressures in different spheres. After 1763, the monarchy began to examine methods for improving fiscal extraction, and this involved greater consultation with groups in society able to produce more revenue. This occurred against a background in which the existing methods for raising taxes were ineffective as they partly depended on the sale of public offices. This also occurred in a context in which royal control over society was patchy and members of the nobility still possessed far-reaching authority in their domains, especially in judicial and fiscal functions. Although serfdom was disappearing in France, feudalism still shaped the structure of society and unfree labour limited the ability of the monarchy to generate revenue. Remedies to the fiscal weakness of government were often proposed by physiocratic theorists who argued that such problems should be solved by increases in revenue raised directly on agrarian products. Such theorists advocated far-reaching agrarian reform, explaining that ‘agricultural advances’ were vital for the ‘production of tax’ and ‘the subsistence of all classes of citizens’.Footnote ⁷³

Monarchical weakness in France was strongly determined by problems of military administration, which also became the focus of reform policies. In the earlier eighteenth century, the French monarchy had avoided some problems experienced by other states with large armies as its dependence on entrepreneurs for supply of military personnel was limited. The French army developed a system of direct state commissioning from an early stage. This system did not avert problems of military financing, but it reduced the external dependency of the monarch in military matters.Footnote ⁷⁴ Nonetheless, the expenditures of the Seven Years’ War challenged governmental capacity for raising troops in France. Further, through the eighteenth century, a militia system had been established that was extremely unpopular, creating hostility in society at a time when the government was fiscally vulnerable.Footnote ⁷⁵ More specifically, the French officer corps, largely recruited from the nobility, was weak, partly because, like other offices, military commissions were transacted venally. For example, military captains typically purchased their commands and they were required to invest their own resources in maintaining their units. This often meant that captains limited their outlays in hiring soldiers, partly because they depended on expensive mercenaries, and the readiness of their troops for combat was questionable. The international power shift placed pressure on the French army, and the years after 1763 saw costly attempts at military reform. This was concentrated in policies enacted first by Étienne François de Choiseul and then by Claude-Louis Comte de Saint-Germain. These reforms entailed measures to subject military recruitment to stricter governmental oversight, to abolish private commands and to ensure adequate qualifications amongst ranking officers.Footnote ⁷⁶ Central to these reforms was a decree of 1776 to prevent private acquisition of military office. However, such reforms had limited impact on the social structure of the army and, even in the 1780s, the status of the nobility as natural members of the officer class was not contested.Footnote ⁷⁷

On each count, in the aftermath of 1763 in France, a crisis in military finance and performance led to, or at least accentuated, a more general crisis of state. This crisis was then expressed in a series of constitutional conflicts which ultimately culminated in the revolution of 1789. The first conflict occurred in 1787–8, in tensions about fiscal legislation between the monarchy and Paris parlement, a judicial body with duties for authorizing new taxes. This ended as the monarch suspended the parlement because it refused to support his taxation plans. In parallel the Assembly of Notables was called to discuss the fiscal conditions of the monarchy in 1787, and a meeting of representatives of all political classes, the General Estates, was then convened in 1789. This occurred against a background in which, through the eighteenth century, representative assemblies had not been convoked at the national level. Disputes in the General Estates led to the formation of the revolutionary National Assembly in 1789, which declared itself an autonomous constituent body comprising representatives of all parts of France, who decided, initially, to create a constitutional order to frame the powers of the monarchy.

In the National Assembly, delegates of different regions immediately addressed the question of military defence, and a military committee was created in 1789. Initially, owing to the unpopularity of militia service, proposals in the Assembly to create a conscripted army were rejected and the army was organized on a professional basis. Yet, from the outset, some revolutionaries had in mind a plan for military reform in which offices in the army would be separated from existing social hierarchies, and the sociopolitical basis of the army would be fully reconfigured. These ideas were partly reflected in the Décret sur la constitution militaire (February 1790) in which the allocation of military functions reflected a distinct constitutional vision of the polity. In this decree, access to military office was guaranteed for all citizens (Art. 5) and military budgets were subject to control by the legislature (Art. 4). However, this decree moved beyond traditional designs for a professional army and began to propose a new conception of the military. For example, in Art. 3, it prohibited the use of foreign armies in France, at least without express authorization by the legislature. This advanced an ideal of a national army in which mercenaries were perceived as politically dangerous. The connection between nationhood and army was more strongly declared in Art. 7, which stated that a soldier who had served for sixteen years should acquire active citizenship, which, under the emerging electoral law of the revolutionary polity, entailed the right to vote. At this early stage, military service was presented as a distinct pathway to citizenship and the military allowed access to political rights. This was also expressed (1790) in legislation that declared that all active citizens had a duty to serve as members of the National Guard. This law was supported by the argument that the ‘right to bear arms is inherent in the quality of the active citizen’.Footnote ⁷⁸ In provisional manner, these documents expressed the principle that citizens earned political rights through military duties, so that political and military interactions were closely connected. From an early stage in the revolution, full citizenship entailed certain military obligations.

Of course, these military reforms were not isolated phenomena and they formed part of a wider process of social transformation. However, most laws of the revolutionary period had some military implications. For example, the military reforms followed revolutionary laws to abolish the remnants of feudalism and to liberate agricultural labourers from serfdom. Such laws established guarantees for equal legal personality amongst the population, for the suspension of seigneurial jurisdiction and for the abolition of tithes and duties that impeded free labour. In each point, these laws contributed to improving government capacity for raising taxation and for weakening aristocratic authority, partly for military reasons. Soon after the first military reforms, the Le Chapelier Law (June 1791) abolished all corporations so that economic production was subject to uniform laws. The revolutionaries in France also devoted particular attention to producing general law codes, which they introduced to eradicate the privatistic structure of the ancien régime. In each respect, new laws reflected a process of internal colonization in which revolutionaries used uniform legal orders to extend the reach of government power, penetrating into social domains traditionally under familial jurisdiction. A penal code was passed in 1791, and early codes of civil law were also drafted in the 1790s. This meant that citizens acquired increased proximity to the state in both the economic and military domains.

These military forces were then articulated in the construction of constitutional law throughout the revolutionary period in France. By 1791, the first revolutionary constitution reflected the fiscal problems of the Bourbon government, and it established a representative government, forming a more robust, consensual basis for public authority, including taxation. This was expressed in provisions for an elected legislature with control over taxation matters, based in the assumption that national representation is the central point of the sovereign state. This commitment to popular sovereignty was also reflected in the fact that the legislature was elected by an extended, semi-democratic male franchise, so that citizenship, electoral rights and fiscal contribution were connected. In fact, the franchise was constructed on a tiered design, in which men who made lower fiscal contributions had the right to vote only in local, communal and primary elections.Footnote ⁷⁹

At a manifest level, the constitution of 1791 attached relatively marginal importance to military considerations. The constitution in its totality was shaped by a powerful anti-corporatist emphasis reflected in the declaration of rights attached to the constitution, which eliminated intermediary associations between the citizens and the state. This emphasis clearly implied hostility to the historical status of the military organizations as distinct corps, and it reflected anxiety about possible armed mobilization against the emerging constitutional polity. Indicatively, under the constitution, citizens were barred from exercising electoral rights if armed, and deployment of the army in France was subject to strict legislative approval. Any independent deployment of military force by the king was defined as treasonous, and, famously, it was declared that ‘no armed body’ could assume a legislative role (IV/12). On this basis, the constitution constructed the military as a public organization bound by public legal contracts, assuming an essentially subordinate position in the state. The constitution even dictated that the king’s own guard had to be selected from soldiers who had already served in the regular army or from members of the National Guard. New laws on military discipline (1790) and a code of criminal law for the army (1791) were introduced in this period.

Despite this, the military assumed functions from 1791 that escaped such narrow constitutional demarcation. For example, the 1791 constitution contained public-order provisions allowing use of the army for suppressing domestic unrest. Indeed, the constitution was introduced at the same time as laws allowing declaration of the state of siege in France (July 1791). Military force was vital for the success of the revolution, and the constraints on its use were limited. As the 1791 constitution was enforced, then, the definition of the army was altered and the revolutionaries abandoned their initial objective of establishing a professional army. By late 1792, the revolutionary government, now organized in the elected Convention, revised its recruitment strategies and began to enlist more volunteers.Footnote ⁸⁰ This reform coincided with the onset of war against different European monarchies, and it was partly caused by the simple need to extract more soldiers. As the revolutionary government confronted heightened military challenges, the fiscal system proved unequal to demands for military capacity and the government was forced to seek more recruits. However, this reform was partly caused by the need to restructure the officer corps.Footnote ⁸¹ By this point, the polity was exposed to unsettling internal military threats. The king had tried to flee the country in 1791 and the loyalty of the army was precarious, as many officers appointed under the ancien régime left France, some joining anti-revolutionary armies abroad. Rebellion amongst the officer class had begun in summer 1790 as officers were stripped of noble titles. Indicatively, a decree of June 1791 placed officers under greatly increased surveillance. In fact, Robespierre, by 1792 a leading figure in the Convention, was known for his reticence to declare war, and this shaped his controversies with his opponents amongst the Girondins. One reason for his reticence to engage in war was that he thought that warfare increased the authority of unelected leaders and heightened the risk of military usurpation. This scepticism culminated in April 1793 as Charles-François Dumouriez defected while leading the armée du nord. In response to this, Robespierre declared that the war in Belgium had been caused by the Girondins for treasonous reasons, to create ‘false popularity’ and to sabotage elected government. He argued that military resources should be concentrated on defence, vested in the ‘défenseurs de la patrie’, and that protection of internal liberty should be the main object of military force.Footnote ⁸²

Military organization in the French polity changed further during Jacobin rule. This was intensified by the execution of the king in 1793, as the king had been designated head of the military in the 1791 constitution. From this point, the source of military obligation shifted discernibly towards the principle that military duties were rooted in national membership and the military was projected as the armed organ of the people. Under the Convention, new measures were implemented to increase the loyalty of the military and to reduce the autonomy of regional units, which were seen as potentially hostile to the revolution. Legislation of April 1793 established a system in which representatives of the people were sent to oversee armies and their leaders. This was partly designed to make sure that the armies were adequately supplied, but it also prevented treasonable behaviour. In May 1793, important legislation was introduced which established military tribunals for all armies. This law appointed a military prosecutor (accusateur militaire) to ensure the appropriate dispensation of military justice by judges. A new code of military penal law was also passed in 1793. At the same time, these measures were flanked by recruitment laws that modified the military basis of the polity. In February 1793, a large-scale recruitment drive was initiated. By August 1793, male citizens in certain age groups and social categories (bachelors, widowers with no children) were called up on a mandatory basis for military duties, initially for short periods of service in a levée en masse.Footnote ⁸³

This increase in military conscription was flanked by a changing concept of citizenship which unfolded through the Jacobin period. At the beginning of the revolutionary experiment, the association of citizenship with the army was only implied. From 1793, this association became stronger and citizenship was strictly bound to combat duties, so that the soldat-citoyen became a basic political unit. This link was seen in electoral policies, as the levée en masse coincided with the drafting of a new constitution in which voting rights were significantly expanded. The 1793 constitution was in essence a wartime constitution in which the mobilization of the population played a central role. This was declared in Arts 107 and 109 of the constitution. By October 1793, it was decreed that constitutional government would be suspended for the duration of war with other European states. This meant that all ministerial functions were placed under the direct control of the Committee of Public Safety, which served as an emergency executive with fused civil and military powers. Despite the anxieties of Jacobin leaders about arbitrary rule, the Jacobin interlude was close to a military regime. At a more conceptual level, citizenship was observed as a condition of military identity or common national virtue in which members of society were bound by mortal commitments to the republic. One commentator even observed that death in combat was a fundamental expression of republican ‘equality’.Footnote ⁸⁴ In military practice, further, the growing reliance on conscripted soldiers brought important changes in strategy as it meant that the revolutionary government could recruit large armies and was less concerned about losing soldiers in battle than previous regimes. It has often been noted that, before the revolutionary era, military leaders mainly adopted defensive tactics and they were often prepared to settle for less than total victory.Footnote ⁸⁵ This was partly because they were concerned about losing soldiers, who were difficult to recruit and expensive to train for combat. In the 1790s, such concerns gave way to strategies that relied on larger, more offensive deployment of troops intended to annihilate the enemy, often with high collateral costs. In 1794, the revolutionary Comité du salut publique declared that the ‘general rules’ of war dictated that the army should ‘attack as a massed body’, and ‘take every opportunity to engage in combat by bayonet and to pursue the enemy until he is completely destroyed’.Footnote ⁸⁶ The emergence of constitutional rule created more violent armies whose goals were more singularly focused on destruction.

At the heart of these processes was a transformation of human labour. In 1789, many French subjects were released from unfree labour regimes through early revolutionary legislation passed by the National Assembly. By 1793, many of these same subjects were reintegrated into an unfree labour regime as former serfs were forced to serve in the army and military engagement lost its voluntary dimension. The legislation of the French Republic accelerated the core trajectory of modern European society: it transformed the serf into the soldier-citizen in four years. This development was flanked by the accelerated political marginalization of the nobility, many of whose members were put to death at the point where their former serfs were incorporated in the army. The long-term process in which national governments penetrated their societies to obtain military capacity, at the constitutional expense of the nobility, came to a rapid conclusion in these events. Conscription laws were soon followed by education laws (November 1794) creating schools in which pupils were taught to read and write, to recite the rights of man, and to memorize heroic actions and military songs.

In revolutionary France, as in revolutionary America, the division between war and civil war was frequently unclear. At one level, military government in the Jacobin period was caused by the fact that France was engaged in warfare with European monarchies, who promised the restoration of monarchy in France, finding many supporters amongst French elites. As such, France’s military opponents were potential occupying powers able to mobilize support amongst military actors within France. In this constellation, France’s wars of the earlier 1790s were external and internal at the same time, and they were fought on two fronts. As mentioned, Robespierre was less enthusiastic about war than his disciples and adversaries. But in 1792, he declared that his priority was to eradicate ‘ennemis intérieurs’, and he saw internal purification of the body politic as a precondition for suppressing ‘ennemis étrangers’.Footnote ⁸⁷ Alongside this, the revolution caused intense inter-factional hostility between revolutionary groups, so that the prospect of an intra-governmental coup d’état was always present. Indicatively, the 1795 constitution contained a provision (Art. 69) that created a demilitarized zone around Paris to protect the government from insurgency. Moreover, the essential military form in which citizenship was imposed in French society induced intense resistance. The introduction of conscription in 1793 caused deep agrarian unrest, so that large parts of rural France entered a state of factual civil war. From 1793, conscription gave incendiary expression to the extended presence of the state and provoked numerous instances of dissent and insurrection. Such conflicts were conducted, in essence, by social groups who did not want to be citizens, and who did not want to be bound by direct obligations to the national government. In many settings, uprisings against the revolutionary government were also connected with religious controversies, as the revolution was strictly secularist, subjecting the church to a civil constitution as early as 1790.

In each respect, the French Revolution distilled an integrally militarized mode of citizenship. First, citizenship was intended to cement military attachments as the vertical premise for a new model of government allowing semi-democratic political rights for citizens but demanding high levels of obedience and duty. Second, this form of citizenship meant that lateral relations in society were charged with deep hostility and that the government, legitimated by the political will of its citizens, became an actor in a domestic war with multiple fronts. In both respects, citizenship was tied both to the deployment of external military force and to a process of intra-societal colonization in which the government used principles of citizenship to impose a single legal-political regime across society. National society was constructed around a thick set of norms that fused internal and external violence, and the fact that governments attached their power to citizens for external military ends also allowed them to regiment society internally. As mentioned, the early years of the revolution saw the intensified reconfiguration of all areas of law, including criminal law, agrarian law and civil law, and, in conjunction with military reforms, new legal orders were imposed by violent means. In fact, the writing of constitutions itself was a process in which the national government dictated the preconditions of its authority, and it established the legal codification of citizenship by force of arms.

At the same time, the consolidation of citizenship norms in France did not only have implications for social integration and social obligations in domestic society. On the contrary, the revolutionary design of the French polity had profound international consequences. Advocates of republican citizenship during the revolution promised, initially, that the French polity would only engage peacefully with other states. Robespierre expressed this at an early stage, declaring in the assembly in May 1790 that ‘the French nation, happy to be free, does not want to be involved in any wars and wants to live in that fraternity that nature has ordained’.Footnote ⁸⁸ Related ideas were present in the 1791 constitution. This constitution contained a declaratory statement that the French nation would never act ‘with a view to making conquests’ and – perhaps ambiguously – it would ‘never use its forces against the liberty of any people’ (Title VI). In essence, this meant that, from its construction, the French republic symbolically renounced imperialism. These ideas were also linked to legislation (May 1791 and March 1792), which established legal equality for freeborn citizens with non-white skin colour.

Yet, from an early stage, the revolutionary government engaged in non-defensive war with essentially imperialist objectives. As mentioned, in April 1792, the republic entered war against hostile monarchies which involved territorial aggrandizement. This war was declared in anti-militarist diction; it was presented as a war for freedom conducted for the ‘just defence of a free people’. However, such anti-militarism was not shared by all revolutionaries. Some Girondins identified war as a necessary precondition for government based in popular sovereignty. For example, Jacques-Pierre Brissot argued that war was a necessary baptism for a ‘people that has conquered its liberty’, claiming that a war for liberty was needed to regenerate the nation; he added to this the qualification that ‘war whose goal is to conquer’ was execrable.Footnote ⁸⁹ At the same time, the revolutionary state integrated other territories. In the first instance, this took place through a sequence of reunions in which regions at the French borders were absorbed within France. By 1792, France had incorporated the papal domain of Avignon as well as Savoy. By late 1792, France had imposed a revolutionary administration in some regions to the west of the Rhine. Such cases differed from conventional colonization as occupied territories were directly united with France and a general legal regime was enforced in all areas within the revolutionary state.

As early as 1790, legal thinkers close to the revolution suggested a constitutional doctrine to support revolutionary annexation. At this point, it was claimed in the Assembly that France could legitimately integrate external territories by showing that, in these territories, governments were not based in the sovereign power of the people, and they were not recognized by treaties established by self-legislating nations.Footnote ⁹⁰ These theories acquired reality as the status of neighbouring territories was discussed in 1790–1, in reports concerning the reunion with Avignon. Here, military leaders argued that the revolution created a ‘constitutional pact’ that united all France and this legitimated the incorporation of territories that had not been at liberty to join the revolution.Footnote ⁹¹ From this moment, in effect, constitutional citizenship became an instrument for removing foreign governments. In December 1792, the Convention passed a decree to establish principles for the French administration of annexed regions, especially regions with strong attachments to France. Illustratively, the first article of this decree stated that annexation should be conducted by military generals. It stated that generals possessed the legitimate power to abolish all ‘established authorities’, all ‘existing taxes and contributions’, all ‘fixed feudal rights’ and the ‘nobility and all privileges in general’. The generals should justify such acts by declaring to the conquered people that they were bringing ‘peace, assistance, fraternity freedom, equality’. Such annexation was to be conducted ‘in the name of the French nation’ and for the ‘sovereignty of the people’, and generals effecting annexation should immediately convene representative bodies – ‘primary or communal assemblies’ – to express and vindicate their sovereignty. This decree was presented and explained in a report delivered by Pierre-Joseph Cambon to advise military leaders about their actions in conquered territories. Cambon declared that annexation was justified by the fact that, in incorporated regions, ‘the people did not have the experience necessary to re-establish their rights’. Accordingly, the invading army should declare itself a ‘revolutionary power [pouvoir révolutionnaire]’, and it obtained legitimacy as it brought rights to conquered peoples, who might otherwise struggle to achieve such rights. He declared: ‘if we are the revolutionary power, everything that exists that is contrary to the rights of the people must be destroyed the minute we enter the country’.Footnote ⁹² Slightly later, Cambon argued that, as bearers of the pouvoir révolutionnaire, French military leaders had the authority to suspend all existing modes of administration in regions which they entered.Footnote ⁹³ The pouvoir révolutionnaire was construed as an irresistible extra-territorial constituent power, creating the precondition for all law and all political sovereignty in annexed regions.

In such processes, the principles of citizenship that were used to unify France as a nation state were transposed outwards to integrate other domains into its structure. By the mid-1790s, leading figures in the revolutionary regime accepted an idea of France as a visibly demarcated territory lying between the Pyrenees and the Rhine, and they saw expansion within these limits as geographically justified. In 1793, Danton famously announced that the extension of the republic was legitimated by limits set by nature. However, the aforementioned decree of December 1792 implied that popular sovereignty itself formed an effective basis for imperialism, with some parallels to concurrent developments in the USA. That is, in this decree, the idea that government was legitimated by its direct attachment to the popular will was constructed to justify territorial colonization, and the claim of the government to draw legitimacy from the shared will of citizens allowed it to enforce order in new domains. Indicatively, where representative assemblies were established in annexed regions, the outcomes of elections were predetermined, as only voters who declared fidelity to revolutionary ideals were allowed to participate.Footnote ⁹⁴

Through these developments, the formation of citizenship in revolutionary France followed a deeply paradoxical course. The revolution was based in legal techniques to position citizens as holders of sovereign force in society and to form a strong accountable sovereign state on this foundation. However, revolutionary citizenship authorized external war. In its external effects, the revolution engendered multiple patterns of militarization in which ideals of citizenship used to unify France were employed to overthrow other social orders so that internal and external integration appeared as parts of the same process. In annexed regions, the revolutionary army directly imposed French administration so that new domains were simply assimilated into France on the basis of generalized models of citizenship. In so doing, the revolutionary army enforced external occupation regimes in which resistance to French administration could be dismissed as reactionary subterfuge. Once created, revolutionary regimes outside France were usually marked by deep civil conflict, as revolutionary laws brought internal antagonisms to the surface of society in integrated regions.Footnote ⁹⁵ In each respect, the revolution created a transnational military system in which revolutionary ideals of citizenship traversed the boundaries between the inside and the outside of different societies. The principle of popular sovereignty, used to found a constitutionally ordered nation, became the premise for the creation of an imperial nation and, both inside and outside France, nationalism and imperialism had closely related effects.

These tendencies continued under the more conservative regime led by the five-member Directoire, under the constitution of 1795. By 1795, the revolutionary constitutional order was centred on a model of citizenship designed to control the extremes of Jacobin terror. On one hand, government under the Directoire was based in a limited, indirect electoral franchise and the legislature had weaker functions. Alongside this, however, the constitution made citizenship contingent on military duties both in external and in internal military actions, so that political integration and military integration remained closely linked (Art. 279). The expansionist tendencies of revolutionary government also increased substantially under the Directoire. The Thermidorean regime that passed the 1795 constitution was already consolidating a more robust hold on territories outside France as the constitution assumed force. In late 1794, French armies passed through Belgium, reached Aachen and Cologne and crossed the Pyrenees. Holland was subject to French occupation at the same time. By 1795, therefore, the writing of the constitution was not easily separable from acts of external expansion, and the clauses it contained were at least partly focused on securing the internal preconditions of external enlargement. By a law of 1798, conscription quotas were imposed annually and on a permanent basis on single French men, so that the levée en masse became a fixed feature of the polity. This law was passed at a point of great imperial strength. It followed the Treaty of Campo Formio (1797) in which France’s extended frontiers were internationally accepted and French dominance in much of Italy was cemented. This law was very different in motivation from the emergency levies approved in 1793; it was a conscription law clearly intended to serve concerted annexation. By this time, constitutional law explicitly sustained the internal and the external consolidation of government.

The military initiatives of the Directoire also brought Napoleon to prominence. In 1799, Napoleon used his military position to launch a coup d’état, and, from this point, the military construction of citizenship in France became integral to social order. In 1799, a constitution was passed that placed far-reaching powers in the hands of three Consuls, and – in particular – of the First Consul (Napoleon). This constitution tangibly weakened democratic commitments in earlier constitutions. However, under this constitution, government remained centred in a mixed system in which the power of the Consuls was partly limited by a legislature authorized to check and discuss legislative proposals. The constitution provided for a representative order, in which popular delegates were nominated by lists (Arts 7–8) and appointed by the Senate (Art. 20). It was the duty of the First Consul to promulgate laws (Art. 41), and the Consuls together formed the government with responsibility for proposing legislation and regulating fiscal policies (Arts 44–45), conducting foreign policy (Arts 49–50) and maintaining internal security (Art. 47). In key respects, the 1799 constitution formed a military constitution attaching citizens immediately to state organs for military purposes. It subordinated the army to civil power (Art. 84). However, it conferred special privileges (including pensions) on soldiers and it refined provisions for conscription; in March 1800, the conditions for conscription were specified, allowing some conscripts to use proxies and, in 1802, recruitment councils were established. In parallel, it initiated the formalization of administrative law, which became a defining feature of French law. It created a right of petition (Art. 83) and provided for the creation of the supreme Council of State (Conseil d’État, Art. 52) to edit draft laws and to ‘resolve difficulties that may arise in administrative matters’. In this regard, the constitution illustrated the deep connection between individualization and militarization in modern society, as it was intended to regulate state institutions in their interactions with single persons while also binding citizens to the state in a security constitution, as soldiers. The development of administrative law progressed further as, by 1806, the functions of the Conseil d’État in matters of administrative law became more specialized. This constitution was then revised in 1802, as Napoleon became First Consul for life. By 1804, after the expiration of the Treaty of Amiens, which interrupted the long continuum of war, the constitution was replaced with an imperial constitution. This constitution retained the legislature and the Conseil d’État, but it abolished the Consuls, creating instead a Grand Council (Art. 36) and a Senate presided over by the emperor (Art. 37), which had important functions in military recruitment.

The Napoleonic regime retained some continuity with post-1789 constitutional ideals. Although curtailing political rights, the government Napoleon established was based in constitutional texts that established immediate channels of communication between government and citizens. For instance, the 1802 constitution introduced primary elections in different regional units which were convened to send representatives to electoral colleges. These colleges were initially based in broad suffrage, operating as organizational hinges between government and citizens, although their functions were limited to the nomination of candidates for legislative and executive roles.Footnote ⁹⁶ Moreover, the Napoleonic regime continued to deploy models of national citizenship created in the revolutionary period to attach territories to the French empire. This was evident outside the strict domain of constitutional law. In 1804, the Code Civile passed by Napoleon formed a legal order that dictated principles of individual legal equality for all persons subject to it, and it was predicated on ideas of legal equality that gained appeal during the revolution. This Code was transplanted by Napoleon across Europe, and, wherever it was enforced, it induced far-reaching agrarian reform, capitalization of land and increased emancipation of serfs. In regions Napoleon had conquered, further constitutions were created that supported annexation, and, in many regions of Europe, Napoleon imposed the first modern constitutions as part of an imperialist occupation system. In most instances, these constitutions allowed the direct exercise of electoral rights by residents of annexed regions, so that submission to Napoleon brought many people closer to citizenship.

Napoleonic annexation took place in different ways, and Napoleonic constitutions acquired different functions and created different political entities. In some cases, Napoleon overthrew existing states. In northern Italy, Piedmont was invaded in 1796, became a satellite republic in 1800, and was re-annexed in 1802. However, many Napoleonic conquests were closer to inter-imperial capture, and they involved the absorption of regions that did not possess independent sovereignty. Outside Piedmont, parts of northern Italy conquered by Napoleon had been controlled by the Habsburg government in Vienna before Napoleon arrived. When placed under Napoleonic control, Italian regions were first formed as separate republics with distinct constitutional orders. For example, before Napoleon became First Consul, the Cispadane Republic was created in 1796, which was integrated in the Cisalpine Republic in 1797 with its capital in Milan. This gave way to the republic of Italy in 1802, also administered from Milan, acting as a semi-autonomous polity under French military control. This republic acquired a constitution that established Napoleon as president and contained a class-based electoral system in which different social groups were represented in different colleges. Then, the kingdom of Italy was formed in 1805, in which Napoleon was proclaimed king, so that much of Italy was placed in personal union with France. Other parts of Italy were formally assimilated in France at different points, and Italian regions eventually formed fourteen French departments. For example, Tuscany became part of France in 1808; the Papal States were incorporated in 1809–10. In Italy, unlike other regions, Napoleon created many states without clear historical foundations, and he imposed citizenship in warfare as the first step in national state-building. In parallel, the Polish region around Warsaw was occupied by Napoleon in 1806/7 following war with Prussia, which had colonized Warsaw only eleven years earlier. In this setting, Napoleonic rule was imposed with greater social support. In other areas – for example, Westphalia – new states were created by aggregating previously unconnected territories. The formation of Westphalia was, strictly, also the result of inter-imperial capture, as it was established after Napoleon dissolved the Holy Roman Empire. The 1807 constitution of the Kingdom of Westphalia established equality before law as constitutional norm (Art. 10) and it abolished legal privileges (Art. 12) and made serfdom illegal (Art. 13). It created an equivalent to the French Conseil d’État, whose function was both to resolve administrative disputes (Art. 21) and to produce draft legislation to be considered in final form by representative estates (Art. 25). As in France, the Conseil d’État initiated the development of administrative law, as it was charged with deciding when administrative officials should be subject to legal proceedings (Art. 27).

Across the Napoleonic empire, constitutions took root partly as instruments of state-building and partly as instruments of colonization, and they integrated emerging societies in a complex fusion of internal lawmaking and external violence. At this juncture, empire-building and national construction were essentially convergent phenomena. In each setting, the constitutions introduced in territories subject to Napoleonic rule were designed to extract military conscripts (mainly peasants recently liberated from serfdom) from subject populations. In most regions, the primary provisions of Napoleonic constitutions were concentrated on the mobilization of military personnel, and mechanisms facilitating political representation and legal inclusion were designed to enhance military capacity.

In the original borders of France, conscription increased and became more strictly regulated after 1804. Over time, a large administrative machine was put in place to enumerate young men liable for service, to draw up local lists of recruits, and to prevent evasion. This process was closely connected to the organization of elections under Napoleonic constitutional law. In January 1806, a decree was passed in France that established a civil register, and inscription on the register was obligatory for those wishing to vote for cantonal assemblies. This decree meant that local administrators were able to use electoral lists to identify potential soldiers in their region, so that political representation became a tool to augment military force. Through these structures, the Napoleonic system extracted soldiers much more effectively than the revolutionary armies. It is often noted that, to motivate recruits, the Napoleonic army adopted a technique for rewarding soldiers that reduced the importance of patriotism and republican virtue as sources of military loyalty, and it partly reverted to the distribution of honours and distinctions that typified armies before 1789.Footnote ⁹⁷ However, conscription under Napoleon still relied on revolutionary ideas of military citizenship, and the convergence between legal and political status and military obligations was reinforced through this period.

This extractive function of constitutions was prominent in Napoleon’s satellite states. These regions reproduced the revolutionary patterns of legal reform in which subjects were integrated into a system of citizenship rights and then directly relocated in the army. This aspect of Napoleonic government in Poland is discussed more fully below. In the different Italian states, conscription was imposed in different waves, alongside laws promoting legal equality and economic freedom. In the Italian republic under Napoleon, deep conscription was enforced from 1802.Footnote ⁹⁸ In Westphalia, the 1807 constitution dictated that conscription was a basic law of state (Art. 53) and recruitment of salaried soldiers was illegal; this coincided with the introduction of French civil law. The Confederation of the Rhine (1806) was formed through a treaty that secured many soldiers from confederated states. In each case, the Napoleonic system promulgated constitutions to establish parity before the law for all persons, in order, in part, to integrate persons into the army. In turn, integration into the army formed a crucial method of political socialization. Indicatively, in Piedmont, which was subject directly to French constitutional law, Napoleon reflected that it was only through conscription that the country could become French.Footnote ⁹⁹

Such enforcement of citizenship for stabilizing imperialism had deep implications for societal organization and in regions occupied by Napoleon. In fact, the strategy of military integration promoted by Napoleon gave sharp expression to the divergent implications of constitutional law, and it created societal orders that were militarized in two dimensions, vertically and horizontally.

On one hand, the societies where Napoleonic regimes were formed were subject to a vertically constructed military system. Manifestly, in regions governed by Napoleon, the extractive powers of government were dramatically extended and the army increased in size, largely due to conscription techniques. Moreover, military roles and offices became more central to the interaction between citizens and state, and military attachments to government remained powerful even after soldiers had completed military service. For example, the 1804 constitution made formal provision for military pensions. At the same time, the imperial government created after 1802 attached its legitimacy to outcomes of war, and the regime maintained its momentum as it was successful in military combat. In France, this meant that national integration, expressed through the abolition of privileges and the construction of a general legal order, occurred as the domestic effect of war.

In conjunction, however, Napoleonic governments instilled other military pressures in European society. Distinctively, Napoleonic armies were marked by a sharp distinction between their legitimational claim and their actual nature. Initially, Napoleon’s armies were based on the principle of national service in which military obligations flowed from social membership, rooted in revolutionary ideals of the soldat-citoyen. However, after 1802, Napoleonic armies began to resemble the diffusely assembled armies of the seventeenth century as they comprised multinational corps recruited from annexed territories. By the time the Grande Armée prepared for the invasion of Russia in 1812, less than half of Napoleon’s soldiers were French, and many were pressed into service from Austrian, Prussian and Italian armies that Napoleon had previously defeated. Napoleon partly reversed the regulated nationalization of armies that began around 1700 and was placed on new footing during the French Revolution. Given the size of the imperial armies, further, soldiers usually survived by feeding off the land and by plundering, mirroring earlier military corporations.Footnote ¹⁰⁰ More importantly, in many territories, Napoleonic occupation incited large-scale counter-mobilization in different forms. Most regions subject to Napoleonic control saw violent reactions against conscription such that military force was widely used against internal resistance to secure military capacity.Footnote ¹⁰¹ Occupied societies also devised distinct military techniques to combat Napoleonic occupation. Some states that had experienced defeat by Napoleon began to emulate military reforms introduced in revolutionary France to create a military apparatus able to instil national loyalty in soldiers, providing them with strong motivations to resist Napoleonic rule. Reforms of this kind were prominent in Prussia after 1806; conquest by France brought deep structural adjustments to the polity. Equally, some societies began to organize unregulated uprisings against Napoleonic rule. For example, some type of levée en masse, promoted in France in 1793, became an important mechanism for mobilizing societies against Napoleon, and the proliferation of small wars against France became frequent. This occurred in Tyrol and – most famously – in Spain, where spontaneously formed military units shaped the structure of government after Napoleonic invasion.Footnote ¹⁰² Even in Prussia, the possibility of mass uprising against Napoleon was considered in 1808. In such contexts, Napoleon’s presence induced complex societal militarization, including regimented militarization for war and lateral mobilization for civil war. Such scenarios engendered types of guerrilla warfare more typical of the conflicts encountered by European empires at their peripheries.Footnote ¹⁰³ In each respect, the Napoleonic military system brought a deep socialization of warfare, and the effects of war cut deep into regional societies and profoundly altered social structures. Over a longer period, the revolutionary militarization of society that served French expansion became a structural principle in societies occupied by France, so that some pattern of collective military mobilization became an experience on which nationhood and national citizenship were built. These outcomes of Napoleonic rule had ambiguous consequences which proved vital to the development of constitutional law, and indeed to the basic form of state sovereignty.

Through this diffuse militarization of European society, many states began to interact with their citizens with new intensity and vertical immediacy, and they were forced to entrust citizens with roles that would not have been imaginable before Napoleon. In particular, states that experienced conflict with Napoleon began to arm their populations, as new patterns of military mobilization were required to drive out occupying armies. In most contexts, this meant that states fighting Napoleon reproduced the convergence of agrarian reform, constitutional reordering and military conscription that had been pioneered in revolutionary France. During Napoleonic occupation, Bavaria, Prussia, Spain and Austria entered reform processes that led either to the drafting of a representative constitution or at least to the deep transformation of the state. In most cases, conflicts with Napoleon led to the liberation of subjects working in agrarian economies, as throughout Europe laws were introduced to abolish tied labour. Serfdom was abolished in Prussia in 1807, in Bavaria in 1808 and in other German-speaking states in these years same or shortly afterwards, although such legislation had limited effect in some Habsburg regions. In each case, the elevation of subjects into legally defined citizenship roles coincided with the imposition of conscription. Conscription was imposed in Bavaria in 1804–5, in Württemberg in 1806, in Austria in 1808 and in Prussia in 1813–14. In each respect, the military proximity Napoleon imposed between state and society led rapidly to generalized definitions of citizenship, and French legal forms of imperialism galvanized national reactions against Napoleon.

In many settings, however, the mobilization of populations against Napoleonic rule brought substantial internal risks, and the arming of populations was inherently perilous. Some regions, such as the Rhineland and parts of Italy, contained substantial groups that had sympathized with the revolutionary ideals announced in 1789. In some territories, support for Napoleon was strong and some elites drew clear benefit from Napoleonic government. Many states mobilized their populations for war against Napoleon after 1812, although their armies had fought for him after 1807. In such contexts, military loyalties were necessarily precarious. Overall, the construction of military citizenship against Napoleonic occupation had contradictory outcomes. Although it imposed unifying structure on national societies, it instilled acute potentials for civil conflict at the core of the nations it began to engender. The creation of national armies was a highly sensitive technique for promoting national integration, and it constructed national societies in a form with some similarities to external war.

In each point, the first mass transformation of subjects into citizens in Europe was inseparable from imperialism and military violence, and this had distinctive implications for political organization. In this context, states were required to initiate constitutional construction and enfranchisement in a military environment marked by cross-cutting pressures, and they began to extract legitimacy and sovereignty from citizens in volatile circumstances. Indeed, many states entered a situation in which they relied on their subjects for military purposes, to assert sovereignty, but the loyalty of these subjects, on which state sovereignty depended, was not guaranteed. This distilled the basic paradox of early constitutionalism: states accorded rights to citizens to stabilize their sovereignty, but citizens unsettled the sovereign form of the state that gave them rights. One consequence of this was that states began to deploy additional means to assure themselves of the loyalty of their citizens and to stabilize their sovereignty on reliable premises. In some cases, indicatively, states that promoted a levée en masse against Napoleonic occupation soon implemented regulated conscription laws, so that the spontaneous dimension of military enlistment was reduced. This had already occurred in France in 1793 and 1798, but the conversion of spontaneously armed troops into regimented armies remained a defining challenge for many states after Napoleon.Footnote ¹⁰⁴ One further consequence of this was that, from the outset, governments took steps to control the national sentiments and loyalties that motivated citizens to join armies. As discussed in Chapter 2, nationalism was officially discouraged in most of Europe after 1815. Over time, however, memories of mobilization against Napoleon were frequently reconfigured to form the focus of reactionary political identities with a strong anti-revolutionary dimension. The fact that collective mobilization had been directed against France meant, from the outset, that other European societies were integrated by conservative national affinities. In some German settings, the wars of liberation slowly assumed a central role in national imaginaries, and gradualist ideas of organic nationhood moved to the centre of constitutional thinking. In reflecting on the relation between France and Germany, the great historian Ranke concluded that terror of the French Revolution was an example of the metaphysical strife that occurs when people are ‘chained to ideas’, allowing ‘rational’ constructions to prescribe the coercive form of ‘legality’.Footnote ¹⁰⁵ Many parts of Europe developed a reactionary brand of nationalism after 1815 which was framed, partly retrospectively, by hostility to Napoleon.

In each point, further, the Napoleonic period raised simple questions about the distinction between nations and empires, and it constructed models of citizenship that crossed the boundaries between these two political forms. In France, Napoleonic government imposed a dense, clearly national form on society as it extended outwards, and direct attachments between citizens and the state were intensified through external colonization. In this process, vitally, military constructs of citizenship deployed to integrate people in France were also used to absorb foreign territories, so that the empire was partly convergent in its internal and external dimensions. In fact, the actions of the imperial government towards persons resident outside France and to inhabitants of France were shaped by convergent motivations as military mobilization formed the core nexus between citizen and state in both domains. By 1812, following defeat in Russia, conscription increased rapidly in all Napoleonic territories. Indicatively, citizenship instilled parallel resentment in both the internal and the external parts of the empire. This process stimulated intense resistance outside France, and, inside France, Napoleonic rule was accompanied by common signs of hostility to military citizenship.Footnote ¹⁰⁶ In both parts of the empire, citizenship was often observed as an oppressive, partly annexationist regime. Consequently, France was formed internally as a nation by imperialism, but nation-building was also experienced as internal colonization. In occupied regions, conversely, Napoleonic imperialism acquired nation-building force, and it radically accelerated the lines of inner social construction that, more latently, had defined eighteenth-century Europe. Across Europe and Latin America, the impetus towards the realization of national citizenship resulted from Napoleonic administrative techniques, and most nations approached nationhood because, at least temporarily, they became parts of an empire. This meant that, from this point, empires formed a model for nation-building, and nations were configured through the construction of citizenship in semi-imperial fashion. This also meant that legal categories used to established nations could be made serviceable for empires, and empires increasingly patterned themselves on nations. After circa 1806, most empires began to organize their interactions with society through principles of citizenship borrowed from the French Revolution. In each dimension, further, the Napoleonic era had the outcome that states engaged with their citizens, primarily, as potential soldiers, and they relied for their sovereignty on citizens that constituted a threat to their essential sovereign form. As discussed in Chapter 2, the immediate reaction of most states to this condition became visible in the Congress of Vienna, when the link between national militarism and sovereignty was denied.

A distinct variant on the pattern of military constitutionalism appeared in the main example of anti-Napoleonic uprising outside Europe – in Haiti. In Haiti, originally a French colony with embedded slavery, the construction of national citizenship depended on complex interactions between the locus of citizenship, Haiti, and the imperial power, France, and it was driven by diffusely convergent military pressures. Large uprisings amongst slaves in Haiti began in 1791, caused both by local slaveholder repression and by revolutionary events in France. This mobilization acquired the form of an anti-imperial war and a civil war, as slaves directed their primary hostility towards local plantation owners. The uprising was partly successful because it coincided with war between the French Convention and Spain and Britain in the Caribbean. At this point, the colonial government on the island lacked military personnel to deploy French troops to campaign against rival empires in the Caribbean, and it was unable to suppress the anti-slavery protests in Haiti. As a result, a series of decrees were introduced to free Haitian slaves. This was partly intended to pacify the revolts in Haiti, but it also served broader military purposes. Some insurgent slaves had formed alliances with Spain, and emancipation was intended to separate Haitian slaves from the Spanish army and to promote their recruitment for France. By August 1793, the French commissioners abolished slavery in the north of the island, albeit with caveats and restrictions, and, by 1794, the Convention in Paris abolished slavery in all French territories. This meant that the revolts in Haiti stimulated general emancipation throughout the French Empire.

This conflict acquired a different character under Napoleon. By the onset of Napoleonic rule, military forces in Haiti were led by Toussaint Louverture, whose armies had a stronger focus on the assertion of independent sovereignty. Although a primary force beyond the abolition of serfdom in Europe, Napoleon’s approach to involuntary labour outside Europe was less certain. The 1799 constitution placed French colonies under separate laws, and, by 1802, Napoleon sanctioned slavery in some colonial regions and legalized the slave trade again. He also reduced other liberties of black subjects. Such actions gave rise to the perception that Napoleon was intent on reimposing slavery in Haiti, which naturally affected attitudes towards France. These factors resulted first in the promulgation of a separate constitution for the colony, in 1801. Like other constitutions of the period, the constitution had a strong military inflection. The constitution permanently abolished slavery (Art. 3), but it placed supreme power in the hands of Louverture, who was authorized to use the army for public order purposes and to appoint his successor. It was also flanked by measures to impose military discipline on the rural production, so that labour and militarism remained connected.Footnote ¹⁰⁷ Against this background, Napoleon sent an expeditionary forced to restore order in the island, which brought brutal multi-polar warfare. After the deportation of Louverture, the Haitian armed forces were led by Jean-Jacques Dessalines, who oversaw an intensified militarization of society with large-scale mobilization of guerrillas, resulting in the independence constitution of 1805. This constitution declared Dessalines the emperor of Haiti and placed the island under government by military divisions, with strong military control over civil and judicial functions. The constitution was supported by far-reaching conscription provisions. In key respects, the mobilization of society against French imperialism imprinted a persistent bias towards military hierarchy in Haitian society, which was replicated both in government and in social organization. In fact, through and after the revolutionary period, military structures became embedded in economic practices, and strongly regimented production regimes were imposed on agricultural workers.Footnote ¹⁰⁸

3 Poland

A third line of constitutional formation in the late eighteenth century developed in Poland. This line acquired expression in several reforms, but it culminated in the short-lived constitution of 1791. This constitution was designed to reorganize the Polish body politic in order to prevent the occupation of Poland by rising dynastic empires based in Berlin, Vienna and St Petersburg, which commenced (formally) in the early 1770s. The constitution was shaped by a background in which Poland’s sovereignty had been progressively reduced over a long period. This process in fact originated in the later seventeenth century, at which time Russia’s international position was reinforced and the sovereignty of Brandenburg–Prussia, a marginal principality until 1648, was tangibly hardened, notably in the Peace of Oliva (1660). The 1791 constitution formed the central point in a long sequence of endeavours to strengthen the Polish polity, and imperialism, with strongly dialectical outcomes, was a defining impetus in these events.

Poland stands out in European history as a polity that was pervasively structured by different patterns of international expansion. In the early modern era, Poland itself was an expansionary state, and, following union with Lithuania in 1569, it incorporated large territories to the north and east of its original location. At this time, Poland was constructed as a Commonwealth, which, although centred around an elective monarchy, possessed strong republican features and was constitutionally committed to representative government and equal rights under law for all full citizens. The Polish Commonwealth was weakly centralized, and it was supported by an estate-based constitution, whose central organ was the bicameral parliament (Sejm), to whose sittings members were elected by a highly selective franchise. This constitution had an anti-absolutist emphasis. It originally expressed a balance between the interests of several social groups, notably of large magnates and the lesser nobility, and it protected their privileges by upholding regional administrations based in patronage and serfdom. Individual regions in Poland possessed smaller representative parliaments (Sejmiki), whose delegates influenced legislation in the Sejm. The position of the Sejmiki was defined by the expansionary form of the polity. The Sejmiki were first established as representative instruments to link newly integrated regions as Polish rule spread in the north and east. Originally, they performed defensive functions in raising troops and upholding Polish rule in colonized borderlands. By the late seventeenth century, the Sejmiki had assumed far-reaching autonomy, especially in fiscal matters. Their role in providing military resources also increased greatly, so that they clearly checked the centralizing pull of the monarchy and the Sejm. By the eighteenth century, powerful magnate families acquired dominance in the constitutional order, using the regional Sejmiki to exercise control of government.Footnote ¹⁰⁹ As a result, the Polish state was marked by low internal consolidation of governmental sovereignty. It acted in essence as a loose parliamentary confederation of regional power centres, partly dominated by large family oligarchies.

The powers of the Polish government were further restricted by a traditional constitutional provision – the liberum veto, which prescribed unanimity amongst delegates in the Sejm as a precondition for vital legislation. This meant that parliaments were often inconclusive and influential regional groups attached to Sejmiki could control legislation at the national level. The force of this provision was limited in 1764, after repeated plans to revise it. However, 1768 saw the publication of a corpus of laws defined as cardinal laws. This collection was very close to a modern constitution, written as the polity experienced internal war and was exposed to extreme external pressure. This collection set out norms concerning political representation and procedures for legislation, and it included the stipulation (Art. 17) that the liberum veto should be retained with full effect. Unsurprisingly, neighbouring states drew great benefit from the liberum veto, as it weakened the legislative power of the Polish polity and created internal dissent that provided pretexts for external acts of pacification.Footnote ¹¹⁰ Its retention in the cardinal laws of 1768 owed much to the influence of Catherine II in St Petersburg.

One primary feature of the traditional Polish constitution was that it did not establish a strong fiscal system, not lastly because magnates viewed increased fiscal extraction as a pretext for military absolutism. In consequence, the military apparatus was not effectively centralized and regents routinely struggled to recruit and pay armies. Unlike many European states, Poland was only marginally affected by the Thirty Years’ War, and the military system was not substantially reformed in the decades after 1648.Footnote ¹¹¹ Moreover, Poland experienced protracted warfare between 1648 and 1720, both in and outside Polish territory, causing extreme devastation, territorial depredation and demographic depletion. At this time, Polish military resources were greatly stretched in wars with the Ottoman Empire, often conducted far from Poland. Like other states, Poland saw increasing professionalization of the officer corps in the eighteenth century. Yet the techniques promoted in other European countries to stabilize military funding and ensure official regimentation of armies were not permanently implemented.Footnote ¹¹²

Through this time, Polish governments were dependent on different armies for military capacity. The army at the disposal of the monarch had multiple foundations, and Commonwealth armies, militia armies provided by the noble estates, and a range of mercenary units combined to form the total military force.Footnote ¹¹³ The composite nature of the army was partly a result of the size of the territories in the Commonwealth, which made concerted military mobilization difficult. However, it meant that the command structure of the army was complex and fractious. Poland and Lithuania had separate armies, each of which was led by military officials with high constitutional status (the Hetmans). The Hetman was a vital figure in the Commonwealth, possessing extensive duties in military and fiscal governance. However, the position of the Hetman was not defined in clear constitutional terms, and it varied over time. The Hetman was expected to raise and organize the army, but he controlled the army through webs of patronage, so that the Commonwealth army was partly recruited as a large entourage of the Hetman, reflecting older patterns of military recruitment through affinity.Footnote ¹¹⁴ Historically, the Hetman protected the interests of the high nobility, and the loyalty of the Hetman to the crown was frequently uncertain. However, leading noble families were often hostile to the Hetman, whose powers they saw as draining monetary resources for commitments inimical to their own.Footnote ¹¹⁵ The Hetman was able to station armies in noble domains, often with devastating material results for the owner.

The reliance of the Polish crown on multiple armies weakened the inner structure of the state, and it meant that leading families could act at a high level of political independence. In fact, at crucial junctures, families and other regional groups formed confederations which performed significant military, legislative and judicial functions, even developing autonomous fiscal systems. Such confederations were sometimes established to provide institutional order and domestic security in periods in which other political institutions were depleted.Footnote ¹¹⁶ For example, confederations acquired influence by performing state-supporting functions and guaranteeing military supply during interregna. By the eighteenth century, such confederations had become fundamental to the political system. They were formally recognized in constitutional doctrine as organs of the polity, separate from military associations or informal factions.Footnote ¹¹⁷ One account describes confederations as the ‘dominant political form’ in the eighteenth-century Polish constitution.Footnote ¹¹⁸ However, confederations provided an intrinsically uncertain basis for public order. At times, confederations acted as parts of government, appearing as formal organizations in parliaments and steering legislative initiatives in parliamentary assemblies. In parallel, confederations often pursued military objectives that were opposed to other organs of the polity, and they conflicted with the government. This had the result that the organic composition of the Polish state was informal and associational, and actors within the polity moved variably between systemic and subversive functions.Footnote ¹¹⁹ Periodically, the highest organs of state – including the Sejm itself – saw their functions usurped by confederations, and, in such contexts, parliaments acted, not as internal organs of state, but as conferences between rival military organizations.

For these reasons, the Polish constitutional system showed a repeated tendency to degenerate into civil war between internal groups. Conflicts recognizable as partial or full civil wars occurred frequently, notably in 1606–7, 1665–6, 1704–6, 1715, 1733–5 and 1768–72. In these periods, it was common for parts of different armies to form rebel confederations or several confederations at once. Fatefully, civil wars often coincided with external wars in which some domestic factions attached themselves to foreign powers. The loose territorial order of Poland meant that civil wars easily acquired an international dimension and fused with interstate wars as domestic unrest brought external actors into Poland. For example, the late 1760s saw de facto civil war between confederations with opposed international objectives, partly organized to resist Russian intervention. In such conflicts, nobles frequently formed alliances to oppose the monarchy, at times treating the monarchy as an alien military power. In fact, actions of the Polish nobility towards the monarchy often mirrored anti-imperial uprisings. For example, from the 1690s, Poland was intermittently ruled by the Saxon royal family. During this time, the Saxon monarchy stationed its army in Poland with implicit Prussian support, and it extracted fiscal contributions from the Polish estates much like a foreign occupying force.Footnote ¹²⁰ Resultant opposition amongst the noble estates to the Saxon dynasty was expressed through military actions that formed a hybrid between civil war and interstate war. In such settings, noble confederations also operated in a form close to occupying regimes, and they extracted contributions from domains where they were stationed.Footnote ¹²¹ In different ways, government was rooted in violent contest over territorial occupancy, in which distinctions between national and external rule were unclear and the perceived legitimacy of central authority was low.

By 1720, the sovereignty of the Polish state was discernibly restricted and external powers had obtained a powerful hold on the political system. A key milestone on this process was a set of agreements reached by the Sejm in 1717. These agreements were partly engineered by Russia (officially declared an empire in 1721) after the Sejm had encouraged Peter I to intervene to control violence caused by noble uprisings on Polish territory. These agreements included (ineffective) reforms to prohibit confederations and to limit the number of soldiers in the army. These reforms curtailed the powers of the Hetman and restricted his involvement in domestic disputes, although they were also intended to weaken the military authority of the monarch. Importantly, this Sejm reduced the role of regional assemblies in providing revenue for armies; it coincided with provisions for regular payment of the Commonwealth’s army.Footnote ¹²² By this time, however, Poland had relinquished vital attributes of sovereignty and it relied on external intervention to maintain internal order. From this time, elections were subject to Russian influence, with Russian troops often stationed in Poland or at the Polish borders. Russian soldiers and other armies travelled through Poland freely, repeatedly intervening in Polish conflicts and living off rural contributions. A perennial problem was that foreign armies used Poland as a recruitment region, meaning that Polish territories were subject to undeclared occupation and Polish soldiers were often integrated into armies of states arrayed against the Commonwealth.Footnote ¹²³ This created an enduring role for Poland as a military supplier for foreign armies, visibly displaying that its government had limited monopoly over core political functions. By the 1740s, further, Russian engagement in Polish politics was accompanied by an increased threat from the western borders. Through the 1730s, Prussia intensified its system of military conscription, and it was able to mobilize armies of a magnitude disproportionate to its economic capacity. The annexation of Silesia by Prussia in 1740–1 brought long and brutal war between Prussia and Austria, with some Russian involvement, and it meant that Polish territorial integrity was imperilled on several fronts. By this time, the Prussian monarchy actively undermined attempts by the Polish government to reinforce its institutions through the implementation of new fiscal measures.Footnote ¹²⁴ Further, as primary theatres of the Seven Years’ War were close to the Polish borders, Poland became an access route to war for foreign troops at this time. One cause of the first partition of Poland was that other countries had concentrated military force around Poland between 1756 and 1763, and foreign troops stayed in Poland when the war was over.Footnote ¹²⁵

By the 1760s, Poland was close to becoming a vassal state. By this time, both Russia and Prussia actively intervened in Polish fiscal decisions, strategically obstructing planned reforms to the Polish constitution.Footnote ¹²⁶ Poland had introduced a portfolio of indirect taxes in the seventeenth and early eighteenth centuries.Footnote ¹²⁷ However, the Polish state lacked the independent fiscal instruments other early modern states used to stabilize their sovereignty. This meant that reduction of military spending, rather than increased taxation, was the only expedient response to fiscal shortcomings, and fiscal weakness was directly reflected in continued military debility.

Overall, a distinct pathology characterized the early modern Polish polity. The decentralized, loosely integrated structure of the state meant that it suffered from fiscal and military weakness. It was vulnerable to internal fracture as private armies were able to assert authority in some regions. In turn, this made it acutely susceptible to external depredation. Moreover, the depletion of state authority was exacerbated by the constitution, notably by the rights granted to the nobility represented in national and regional parliaments. The Polish nobility was numerically very large in proportion to the country’s population size, and many of its members were not wealthy, so they were unwilling to sanction fiscal-military or agrarian reforms that threatened their material standing. The nobility defended the decentralized constitution for strict economic imperatives, to protect rural economies based in serfdom. These features of the Polish state were particularly damaging because, by the earlier eighteenth century, many other states, notably Prussia, had recovered from earlier religious and dynastic wars. Such states were rapidly expanding their armies. They owed their rise, internally, to the increased political regimentation of the nobility and the qualified restriction of serfdom. Externally, however, they broadly supported the anti-centralistic interests that unified large parts of the Polish nobility.

Ultimately, between 1772 and 1795, Poland was partitioned between Russia, Prussia and the Habsburg government in Vienna, and the Polish state lost full sovereignty until 1918. The final conditions of the Polish partition were cemented in the Congress of Vienna (1815) under international treaties between occupying powers. During the partition, some vestiges of statehood and self-government were upheld in Poland. However, Poland was the major victim of early continental imperialism in Europe.