ž 3 Problem of the legal maintenance of concept “the real union” on an example of the Kingdom Polish.

It is obviously necessary to stop more in detail on a question of the legal maintenance of such phenomenon as the real union. To make it it is necessary, because researchers do not have unanimity on the given question.

In the beginning it is necessary to notice, that the concept the union is used for the characteristic of communications between the monarchic states as any union assumes connection of the states owing to that the monarch at them the same person.

How there is a real union? One point of view consists that the real union is based on the contract. Russian lawyer Kokoshkin, for example considered, that the states connected by the real union, remain equal and sovereign, but are obliged under the contract to have the general monarch and a uniform order prestolonasledija. In its opinion, the real union — international legal соединение1. German scientist Ellinek also approved, that at the heart of the real union the contract lays, and the law can arise as consequence of the contract. But Ellinek considered the union as state-legal connection [119 [120]. According to Russian jurist Sergievicha, real connection of the states is established by the law, and
Not the contract. This connection not casual, but necessary also has constant character, instead of временный1.

The real union means nerastorzhimost communications, that in the monarchic state is provided with uniform order prestolonasledija. The Personal union, unlike real, has a temporality as arises owing to a casual generality of the monarch, for example, when one monarch is selected on a throne of other state. Thus laws about prestolonasledii in these states are not identical, that can lead to the personal union termination sooner or later. So, George Ludwig, the king of Hanover, the relative of English king Jacob II, has entered on velikobritansky a throne in 1714, remaining and the monarch of Hanover. Between two states there were personal union relations. In 1837 the king of England and Hanover Wilhelm IV dies, not having left sons, only brothers and the daughter Victoria. Under laws about prestolonasledii England a throne are inherited also by the woman, under laws of Hanover — cannot. The union between England and Hanover has stopped — on the Hanover throne the brother of the late king, and on English — Victoria [121 [122] has entered.

Many scientists consider, that the real union a number of other characteristics distinguishes from personal not only a generality of laws about prestolonasledii, but also. The states connected by the real union, should have common interests and establishments, in foreign policy they act as a single whole, army as is under uniform command [123]. The finance and monetary systems can be uniform, but it is not obligatory [124]. Some scientists consider, that in the conditions of the real union not only the legislation the general, but also administration. In this kind the real union gets lines of incorporation, but according to the German researcher Rennes — incorporation is one of kinds of the real union [125].

Russian jurist Stoyanov approved, that the states connected by the real union can have the general order prestolonasledija, but thus keep political, legislative, administrative originality. Such

Connection he named personal connection to constants or the personal union. Stoyanov also considered, as in the conditions of the real union distinctions in the constitution, administrations and законодательстве1 can remain. But then it is not clear, in what a difference between the personal and real union? During too time, Stoyanov considered, that the real union, owing to that the states consolidated to it “merge in one international force”, there is, as a rule, a transition to incorporation [126 [127].

In chapter 1 A.S.Alekseeva and N.M.Korkunova's point of view which consisted in an incorporation recognition in relations of Russia and the Kingdom Polish [128] was already mentioned. Researchers start with international legal character of the union and as the sovereignty of Russian empire over the Kingdom Polish is recognised both international agreements, and empire internal legislation the special status of a kingdom is that other as display of a regional autonomy in the conditions of incorporation. Agreeing that the Kingdom Polish became a part of Russian empire, instead of the state connected with empire by international agreements and the constitution, I consider, that features of the status of the Kingdom Polish do not keep within the maintenance of those communications which exist in the conditions of incorporation. Incorporation assumes all the same smoothing of distinctions in the internal organisation of parts of the state, and the kingdom status possessed strongly pronounced features which before revolt 1830 — 1831, had no tendency to any rapprochement with the all-Russian. If to consider, that the Kingdom Polish has been from the very beginning incorporated in structure of the empire, any essential difference in the kingdom status during the constitutional period and after suppression of revolt and cancellation of action of a charter is not present, and it, obviously, not so.

Certainly, eternity of existence of any state in historical measurement a thing rather conditional — the states are born, live, change and even perish, absorbed by stronger state or the states, as in a case with Speech pospolitoj. But for state law each state is constant and eternal establishment. In the conditions of the real union the eternity of connection is provided not only unity prestolonasledija, but also legal impossibility of unilateral cancellation of the union. In such formation by the sovereignty all state as a whole, instead of its separate parts, let and having lines of originality in the internal organisation possesses only.

As it has already been told, the real union can arise as owing to the contract, and to be fastened by the law. In case of connection of Russian empire and the Kingdom of the Polish contract between them was not and could not be. First, the Kingdom Polish has been created by the Russian emperor from bolshej parts of the Warsaw duchy occupied with Russian army and from the moment of the occurrence already was in empire structure, instead of was the separate state. Secondly, the final act of the Viennese congress speaks about creation from a part of duchy connected to Russian empire for ever the states to which the Russian emperor grants ”on the blagousmotreniju” the internal device and special management. Thus, in the contract it is a question not of already existing state, and about the formation which yet does not have accurately certain device and the governmental institutes. Actually, quite defined then it was possible to name only one of kingdom institutes is a tsar, it the emperor All-Russia in one person.

Whether was the Viennese contract the document which, has established the real union between the Kingdom Polish and Russian empire? It is possible to tell, it has fixed only some lines of such connection, namely — the general monarch and hereditary character of the power of the Russian emperor and its successors. Viennese
The contract was international legal fastening of new acquisition of Russian empire which it has made during war with Napoleon and its allies, having occupied the Warsaw duchy. When the contract in Vienna subscribed, Russia already almost supervised one and a half year duchy, had there the administration and was not going to concede this new possession to anybody. To consummate relations with the Kingdom Polish, except the international recognition it was necessary to fix this fact in internal legislation of Russian empire. Such fastening were the manifesto to the empire population ”0 contracts concluded to advantage State; about joining to Empire of the Russian most extensive part of Duchy Warsaw under the name of the Polish Kingdom; about a raising again the weapon against left from island of Elba of Napoleon Bonaparte” from May, 9th, 1815 and the manifesto to the population of the Kingdom Polish from May, 13th, 1815. In the first manifesto it was spoken about the fact of creation as a part of empire of the Kingdom Polish which internal management should be arranged on "the especial rules peculiar to an adverb, to customs of inhabitants and to their local position of the applied... ’” it Is based on desire to approve safety of the western boundaries of empire and to achieve adherence of new citizens to the Russian throne. The manifesto to the kingdom population declared kingdom inclusion in structure of Russian empire and about desire of the Russian monarch to grant to Poles the constitution [129 [130].

Thirdly, simultaneously with the manifesto from May, 13th Alexander I have been signed and have got character of the law "Bases of the constitution of the Kingdom Polish” which were as already marked, actually time organic law of the country. They have ceased the action after signing by the emperor of the constitutional charter which has finished legislative registration of relations between the Kingdom Polish and Russian empire.

Whether is the constitutional charter the certificate which has created relations of the real union between a kingdom and Russia? I consider, that is not present, is not. Whether cancellation of a charter has ceased communication between Russia and the Kingdom Polish from the point of view

The international obligations of Russia? I consider, that is not present, has not ceased. First, the obligation of the Russian emperor, and absolutely voluntary to give to the Kingdom Polish the constitution and the special management containing in the Viennese contract, had no categorical character. All further actions of the emperor after contract signing, according to the text, were absolutely independent and depended on it "blagousmotrenija". Secondly to give to Poles national representation and national official bodies article of 1st Viennese final act carried similar wishes and to the governments of Austria and Prussia which too owned territories of the former Polish state. German monarchy have not executed practically anything from these wishes, but it did not mean, that preservation in their possession of the Polish areas illegally. Thirdly, words in the text of the final act that the Kingdom Polish ”owing to the constitution will be in indissoluble with Rossieju communications”, do not mean at all, that cancellation of the constitutional charter leads to disappearance of this communication. Here it is possible to notice, that the concept "constitution" at that time meant not only the certificate defining a source and character of the power in the state, guaranteeing the rights of citizens and imposing certain restrictions on the power of the monarch. Speransky, in particular, the constitution named fundamental principles of the administrative organisation, creation of the government constructed on the strong bases of legality. In its opinion, the constitution should be not a consequence of collision of the people and the power, and result of the voluntary reference of the monarch to the people for a trust establishment between the power and народом1. The constitutional charter of the Kingdom Polish was oktroirovana, is granted by the monarch unilaterally without any statement representative institutions and the people. The charter really contained positions that is given for ever and cannot be cancelled and changed will of the monarch without diet participation. But also the diet independently not could and should not change a charter and break off the union between the Kingdom Polish and Russian empire. Namely it is the diet of the kingdom which have gathered during revolt 1830 — 1831, without the sanction and participation of the monarch that was not authorised by a charter, and has made. Having deprived of a throne of the lawful monarch, a diet that [131]

Most has destroyed action of the constitutional charter. Therefore, when in 1832, after revolt suppression, emperor Nikolay I has published instead of a charter special "the Organic statute”, it actually has not cancelled, and simply has not renewed action of charter already denied by Poles. That detronizatsija has released Nikolay I from its duties, according to the Viennese agreements to keep action of the constitutional charter, recognised all governments European государств1.

In a kingdom the diet, the military commission and army have been destroyed, but many other things have remained establishments and institutes of the Kingdom Polish, such as: the State council of a kingdom which together with the deputy took part in the edition of administrative acts for needs of edge; the Senate; the governmental commissions (except military); the separate finance and a coin, the Polish bank; special local citizenship; customs border. Though quantity and a role of Russian officials also has increased, as a whole appreciable russification has not occurred. Russian government cautiously enough concerned resettlement of Russian population in the Kingdom Polish. So for example, with 1835 for 1845 to Russian landowners, at the expense of confiscations at participants of revolt and emigrants, 138 grants of dignity have been given. After that distribution of estates has been suspended and did not renew almost two decades, before suppression of following revolt. Has not got mass character and country colonisation from Russia [132 [133]. At Alexander II in 1861 — 1862 the policy of expansion of the rights of the Kingdom Polish was spent even. The national principle of formation of officials in a kingdom began to be observed more carefully, the rights of the Polish governmental commissions are expanded, self-management reform is spent, it is authorised to come back to emigrants. "Thaw" has ended with revolt of 1863. After its termination there will be a cancellation practically all special Polish establishments and the kingdom territory will be completely incorporated in structure of Russian empire.

Some researchers, specifying in obvious domination of Russia in the union with a kingdom, created at will of one, Russian, the parties, considered, that the real
The union in such conditions невозможна1. But just in such unequal position of participants of the real union anything unusual is not present, more likely on the contrary, the union very often arises after the initiative and even dictatorship of the strong state in relation to weaker. The union between France and Italy which has arisen on Napoleon's arbitrariness was such. It is possible to specify also in an example of the real union between Austria and Hungary in which prevalence of the Austrian monarchy was indisputable, and participation of Hungary not such voluntary, on what revolts of Hungarians against the Austrian monarchy specify.

Certainly, association in one state of a small constitutional kingdom and huge autocratic Russia, and in one person — constitutional and the absolute monarch, the phenomenon exclusive. But it is impossible to agree with the point of view of the Russian researcher of Parchment, that such combination has been incompatible with the real union and has made inevitable liquidation of independence of a kingdom and its further incorporation in structure of empire [134 [135]. A.M.Chetvertkov [136] adheres to the similar point of view also. The reasons of cancellation of the special status of the Kingdom Polish were not in incompatibility of the usages existing in a kingdom and Russia. Russian emperors not always in accuracy followed a charter, but plans of cancellation of the special status of a kingdom before revolt 1830 — at the government were not 1831.

The Polish scientist Kozlovsky, characterising relations of a kingdom and Russia in 1815 — 1830, used concept "the abnormal union”, showing to these incompatibility of existence absoljutistskih and constitutional orders in one государстве1. But such concept at least assumes, that there is certain "a normal union”, i.e. A certain standard. But that simply is not present, and each case of the state connection has, unlike others, features.

As it was already spoken in the previous paragraph of the head, in the Kingdom Polish there was a local citizenship which was given by the kingdom authorities.

Even to the Russian officials coming on service in the Kingdom Polish, to get all rights of local inhabitants, it was required to receive such citizenship. It confirms, for example the decree of the emperor to the president of the time Supreme body on management of a kingdom from May, 12th, 1815 in which it is said that Russian to the official working in a kingdom if will wish and were reputable for local residents, can receive "the citizenship right, on a level with local natives, with intention to devote To our service in local edge” [137 [138]. According to accepted in 1817 "to Rules concerning coming to Russia foreigners”, inhabitants of the Kingdom Polish for entrance to Russia should receive passports, though and simplified in comparison with "others foreign passing” an order, i.e. Not at the deputy in Warsaw, and at voevodskih the authorities [139]. This rule did not concern only so-called “mutual landowners”, i.e. What had the real estates both in a kingdom and in the Russian western provinces. When in 1820 between the Kingdom Polish and Russia the customs border has been cancelled, inhabitants of a kingdom have received the permission, according to special position of the decree from October, 3rd, 1819, to go to Russia and back according to those "passports or kinds which stand out at transition from one internal іубернии in another” [140]. Later, already in 1829, it will be established, that inhabitants of the Kingdom Polish, arrived to Russia with such passports, can receive here passports for trip abroad, in other countries. For them the requirement to have on this permission of the authorities of a kingdom will be established only. For the police purposes the rule will operate — to inform on each such case in ІІІ branch [141].vo many normative acts, inhabitants of a kingdom were called as citizens of empire. The Russian citizens they are named in the Viennese agreements, and also in many other things contracts. In the contract on trade and transit, between Austria and Russia, signed on August, 5th, 1818, Poles, inhabitants of a kingdom, are called as the Russian citizens [142]. At the same time, in the convention concluded in February, 1823 about

Trade and navigation between the Russian emperor and the king of Prussia, such concepts “the Russian and Polish citizens”, “the Russian, Polish and Prussian government”.1 are used

As there are disputes — international legal association the real union or state-legal there is no also a common opinion concerning that, uniform or separate citizenship will be at inhabitants of such formation. Recognising that the real union between the Kingdom Polish and Russian empire has formed the state, instead of international legal connection, I consider, that the question of citizenship of inhabitants of a kingdom should be considered, taking into consideration those historical circumstances which accompanied creation of this formation as a part of empire. Having achieved from the European powers of a recognition of the Kingdom Polish a part of Russian empire, Alexander I did not wish to interfere unduly with its internal affairs, besides he perfectly realised the big difference in socially - economic and sociopolitical conditions of a kingdom and Russia that demanded certain restriction and regulation of contacts between their population and economy. Besides, as it was already marked, the Russian emperor probably sincerely wished to keep "national" character of the Kingdom Polish, wishing thus though a little to soften consequences of destruction of the Polish state in sections. Alexander I always considered, that with Poland then have managed unfairly. Poles should Polish receive in the Kingdom guarantees of the national revival and independence in the decision of the majority of questions of an internal life of a kingdom. For achievement of these purposes special local “citizenship of the Kingdom Polish”, special rules of entrance and resettlement of inhabitants from Russia in a kingdom and back, and also the customs border, the separate finance and monetary system also has been provided. From here and the duality of position of inhabitants of a kingdom in empire — when is a question of a recognition of the sovereignty of Russia over the Kingdom Polish then it is unconditional its inhabitants are considered as citizens of empire when there is a necessity to divide social and economic interests of Russia and a kingdom then discriminate citizenship actually Russian and so-called "Polish". Not casually, [143]
This division is the most frequent meets in various trading and customs agreements of Russia other states in which it was obligatory to reflect the distinctions existing in the legislation, a customs and trading mode in Russia and a kingdom. It is impossible to tell, that all it did not bring certain mess in activity of the state bodies of empire. In May, 1820 the Minister for Foreign Affairs of empire Nesselrode had to explain to the authorities of the Russian provinces which often sent inquiries to the kingdom authorities through the Ministry of Foreign Affairs, that “on joining of the Kingdom Polish to Russia, it is impossible to consider its foreign”, and inquiries it is necessary to send to corresponding ministers to Petersburg, looking what sort business, and those will direct them through the minister of the stats-secretary of a kingdom on назначению.1 the Similar explanation has been made once again in October, 1827 when, it agree vysochajshe to the approved opinion of the State Council, it was once again specified, that inhabitants of the Kingdom Polish cannot participate in any privileges given to foreigners, i.e. cannot use any special benefits before “aboriginals of Russia” [144 [145].

That local "citizenship" was necessary for the Russian authorities first of all in the economic and police purposes, speaks that fact, as after cancellation of a charter and its replacement with "the Organic statute”, distinctions in a legal status of inhabitants of a kingdom and other citizens of empire will be kept. According to the manifesto from the February, 14th, 1832, moved in the Kingdom Polish had all rights of local residents and as the emperor could give such rights to everything, both Russian, and to foreigners even if they yet do not live in kingdom limits. [146] this shows, that despite sharply become simpler procedure of reception of the rights of inhabitants of a kingdom, difference in a legal status of inhabitants of a kingdom from other citizens of empire remained. In documents of the beginning of 1860th years it is possible to meet such concept which designated the status of inhabitants of a kingdom as “Russian, on local edge citizenship”. This citizenship or under the order of the emperor, or the commission of internal affairs in the Kingdom Polish was given. [147]
Up to 1868 certain restrictions on resettlement in a kingdom from Russia which have been cancelled by the decree from June, 26th, 1868 remained also. Thus, “citizenship of a kingdom” represented the special legal status given to inhabitants of the Kingdom Polish, to provide the mode of independent social and economic, political and national development of this formation as a part of empire. In contracts with other countries, despite the use of concepts “subject Kingdoms Polish”, “the Polish citizens”, inhabitants of a kingdom always admitted citizens of Russian empire.

Emperor Alexander I used the form of the real union to provide the sovereignty of Russia over new formation, but has filled this, as a matter of fact feudal, the form with the new maintenance. The similar form of joining of new possession has been rather extended at this time. Aristocratic character of the international relations of that time, allowed the great powers to solve destinies of other people and the states, creating formations dependent on ’. Used it in policy Napoleon as already it was marked earlier. Similar relations existed between Austria and Hungary. The real union in general is very convenient for achievement of the purposes which are put before itself by the large monarchic state, such as Russian empire. She allows to attach the new territories which had separate state existence, socially - economic, political, religious, cultural features. Depending on the circumstances, in the conditions of this connection it was possible to keep the big or smaller isolation of social and economic systems of parts of the state. For absoljutistskoj, just it was necessary for serf Russian empire to minimise influence of the usages existing in the Kingdom Polish on other empire. The power achieved it not only by means of the special status of a kingdom, but also using the possibilities, in every possible way limited the information on the Kingdom Polish and the policy spent there. The text of the constitutional charter, other laws of a kingdom was not published in Russia, speeches of emperors on a diet which text, meanwhile, was specially dispatched to the governments were not printed
The European states. In a victim of political expediency even the economic gain was brought — the existing customs border and a separate financial system did not stimulate active development of economic relations of a kingdom and Russia in a due measure.

Realisation of a legal status of the Kingdom Polish, established by laws of Russian empire, the constitutional charter of a kingdom and confirmed with international agreements of Russia with the European states, should pass in activity of the state institutes, which Poles have received from hands of emperor Alexander I. The analysis of action of a machinery of government of the Kingdom of Polish and its interaction with a machinery of government of all empire can show, how the special status of a kingdom, and what principal causes of its cancellation as a result of revolt 1830 — has been actually realised 1831. The third chapter of research is devoted this question.

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A source: Vashchenko Andrey Vladimirovich. the LEGAL STATUS of the KINGDOM POLISH As a part of RUSSIAN EMPIRE (1815 1830). The dissertation on competition of a scientific degree of the master of laws. Moscow, 2000. 2000

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