The Dethronement Act of 1921

On November 3, Prime Minister István Bethlen, complying with the Entente’s demands, submitted a corresponding bill, which was accepted by the National Assembly without any amendments. Act XLVII of 1921, “On the Abrogation of the Sovereign Rights of His Majesty Charles IV and the Succession to the Throne of the House of Habsburg,” terminated Charles’s sovereign rights and repealed the Pragmatic Sanction of 1723, severing the connection between the Habsburgs and Hungary. The law restored Hungary’s right to elect its own king and affirmed the nation would retain the monarchy as its form of government but also declared that the royal throne would remain vacant at present. The wording, however, did leave open the possibility that a Habsburg could return to fill the Hungarian throne through a free election. This elicited further protests on the part of the Entente and the Little Entente powers, and so, on November 5, the Hungarian government issued a statement that in matters concerning the future succession, they would only act after having taken the Entente’s position into consideration.

Justification for the Dethronement Act

An explanatory memorandum attached to the bill criticized that foreign powers were interfering in Hungary’s internal affairs, despite its independence having been guaranteed in the peace treaties. They demanded from Hungary measures the country had never committed itself to, that were not imposed on it by the Treaty of Trianon, and that were incompatible with fundamental principles of the Hungarian constitution. Nevertheless, the imposition could not be rejected because the country was threatened with invasion. The government, having unsuccessfully availed itself of peaceful means to defuse the crisis, could not take the risk of exposing a country weakened by war and revolution to yet another war, one which could threaten its very survival. The explanatory memorandum emphasized that pursuant to Act I of 1920, “On the Restoration of Constitutionality and the Temporary Settlement of the Exercise of State Power,” the National Assembly would also be entitled to further determine the exercise of state power. Thus, the act of dethronement would fundamentally decide the question of the form of government.

In accordance with the rules of procedure, the responsible committee of the National Assembly – the Public Law Committee – prepared a report recommending that the National Assembly adopt the bill without amendment. The report, also dated November 3, reiterated two statements contained in Act I of 1920. Firstly, that the Eskartsau Declaration of November 13, 1918 – in which Emperor Charles relinquished his right to take part in Hungarian affairs meant royal power had ceased in Hungary. Secondly – and more importantly – that the indivisible and inseparable (indivisibiliter ac inseparabiliter) joint possession of Hungary and its associated countries (Lands of the Crown of St. Stephen) represented in the former Austrian Imperial Council had ceased following the events of the lost war.

Act I of 1920 stipulated that the National Assembly reserved the right to determine the consequences of the peace treaty, which, according to the report of the Public Law Committee, naturally included the question of the standing of the king and the succession to the throne. However, certain agents – namely Charles and his followers – sought to determine these consequences unilaterally, without consulting the National Assembly, which led to such serious foreign and domestic political complications that a legal resolution to this pending issue could no longer be postponed. 

The problem of the Holy Crown doctrine and the Pragmatic Sanction

Two aspects of Hungarian historical constitutionalism should be regarded as guiding principles in understanding the postwar situation – the Holy Crown doctrine and the Pragmatic Sanction.

The essence of the Holy Crown doctrine was that the “Holy Crown” embodied the two main personal components of the state – the king and the nation. In other words, the Holy Crown was the tangible manifestation of the supreme power of the state, and it was through the mediation of the Holy Crown that both the nation – as represented by the National Assembly – and the king participated in the exercise of state power. In Hungary, therefore, the coronation of a king was not merely a formal or ceremonial procedure but was an act of public law – as it marked the transference of power from the crown to the king, as the king did not exercise power by his own right or person but through investiture with the crown. Thus, Charles naturally protested against his dethronement, claiming the return of the throne on the basis of his having been invested with the crown of Saint Stephen!    

The Pragmatic Sanction of 1713, which was formally recognized in Hungary in 1723, legitimized female succession for the descendants of the Habsburg ruler Charles III (1711–1740) – and certain branches of his family. Prior to the Hungarian acceptance of the Pragmatic Sanction, a disjunct had arisen between the Austrian and Hungarian regulations regarding succession, in that in Austria all female descendants of the Habsburg dynasty were now entitled to hereditary rights. Although not specifically stated in the Pragmatic Sanction, these rights extended to the hereditary provinces, which included the Austrian provinces of the Habsburg dynasty: Austria, Carinthia, Carniola, Styria, Tyrol, and Vorarlberg. A defensive community, however, had also been established between the Austrian provinces and Hungary (the Turks had been expelled barely a quarter century previously, and the Peace of Karlowitz, signed between the Ottoman ruler Mustafa II and Emperor Leopold I in 1699, was slated to last only 25 years). A condition for this defensive community was the joint (Habsburg) possession of both the hereditary provinces and Hungary. 

The concepts of defensive community and joint possession received significant emphasis in nineteenth-century Hungarian public law. The concept of defensive community led directly to the establishment of common ministries (foreign affairs, defense, and a finance ministry to cover their expenditures) as established in Article XII of the Austro-Hungarian Compromise of 1867. In his work Adalék a magyar közjoghoz (Addendum to Hungarian Public Law), the Hungarian statesman and jurist Ferenc Deák took the position that joint possession was a condition for claiming both the Austrian Imperial and Hungarian royal thrones. However, no clear conclusion could be drawn from this regarding the ramifications for the Pragmatic Sanction in the event that joint possession was terminated, as the law contained no provisions in this regard. Nevertheless, the events of 1918 made the issue unavoidable once the provisional national assembly in Austria proclaimed a republic on November 12.

“Free king-electors” and legitimists

The Hungarian political elite were already divided on royal matters long before the dethronement: the “legitimists” took the side of the Habsburgs, while the “free electors” favored an elected Hungarian king by ancestral right. Since Charles was a legally crowned king, it could be said that he was “within his rights,” so legal presumption was in his favor. Thus, advocates of free election had to prove that Charles no longer had any right to the throne. 

Since the contradictions of the king’s position were clearly apparent, the free electors sought to free themselves from the burden of proof. Károly Kmety (1863-1929), a professor of public law at the Budapest Faculty of Law, put forward the argument that the ancient right to freely elect a king, arising from the principle of national sovereignty, superseded the right of hereditary succession, whose introduction could only be considered as a temporary restriction (it should be noted that the law of primogeniture did not become part of Hungarian public law until its introduction as Act II of 1687 during the reign of Leopold I).  Thus, according to Kmety, the onus was on the legitimists to prove that the temporality of the situation still existed, i.e., that the terms of the Pragmatic Sanction were still in effect.

Kmety’s views, however, were untenable. For one, it was only true for the fifteenth century that the principle of free election had superseded that of hereditary succession. However, if primacy favors the principle of inheritance, then on this basis the right of Charles IV and his male descendants – primarily his son, the Archduke Otto – to the Hungarian throne cannot be questioned. It would have been rather strange if the burden of proof were to fall on the party then currently enjoying possession, that is, Charles and his supporters.  

Arguments and counterarguments

Since the primacy of the principle of election could not be adequately substantiated, which would have shifted the burden of proof to the legitimists, the supporters of free election had to prove two things to claim the right to elect a king. First, they had to show that the Pragmatic Sanction had lost its validity, meaning that no member of the Habsburg House could lay claim to the Hungarian throne; hence, that the Habsburgs were denied a future or “virtual” right. On the other hand, they also had to show that the already-crowned king, Charles IV, was not entitled to the Hungarian throne; hence, the Habsburgs would also be denied the “current” right.

The free electors assailed the “virtual” right on the basis of historical arguments, since the primary rationale for the implementation of the Pragmatic Sanction in Hungary was collective defense. According to Kmety’s argument, if the dynasty could no longer provide for collective defense, the provision underlying its claim to the throne was nullified. In contrast, the legitimists believed that even if a revolution had broken out in Austria – which was something beyond Hungary’s control – and the emperor had been dethroned, the Hungarian order of succession could not be a function of Austrian public law; otherwise, Hungary would now be bereft of a ruler.

Móric Tomcsányi, who soon became Kmety’s colleague and then his successor at the Budapest Faculty of Law, asserted that if joint possession becomes impossible for reasons beyond the control of the obligated party, this does not terminate the fullness of the legal relationship. Moreover, the Pragmatic Sanction also stipulated that “with regard to the election and coronation of the king, the ancient and old, established and accepted customs and privileges of the estates and the orders shall be upheld in such a sense that they shall only apply after the complete extinction of the aforementioned female line.”

With respect to current legal standing, the free king-electors also made reference to the notion of collective defense, the provision of which – in their view – was not only a condition for a ruler to gain the throne but also had to be maintained throughout that ruler’s subsequent reign. However, in the eyes of the legitimists, this meant the forfeiture of rights, which was exactly the same situation as when, after the War of Independence of 1848–49, Hungary’s constitution was set aside on the grounds that the Hungarians had forfeited their constitutional rights.

The free electors also pointed to the fact that Charles had left the country in October 1918 in the midst of a serious crisis and that his actions led to revolution and territorial disintegration. Although the National Assembly could interpret this as an abdication, the legitimists, on the contrary, argued that the king was not responsible in terms of public law. (This “non-responsibility” meant that neither criminal nor civil proceedings could be brought against the king, as responsibility for his actions was assumed by members of the “responsible ministry” – the government – through the latter’s countersignature. The legitimists also sought support in the doctrine of the Holy Crown, according to which the nation and the king exercised state power jointly, and thus the Hungarian parliament could not unilaterally exclude the king from power.

The free electors, however, read Charles’s statement made in Eckartsau on November 13, 1918, as implying he had abdicated the throne: “I relinquish all participation in state affairs.”  The legitimists, on the other hand, considered this proclamation invalid, firstly because it did not include a ministerial countersignature and secondly because the prevailing law since 1867 stated that a king’s abdication had to be accepted by the National Assembly; otherwise, it could not be considered valid.  

Three days after the Eckartsau Proclamation, on November 16, 1918, the lower house of the Hungarian National Assembly (which was bicameral until 1918) declared its dissolution while the upper house ceased deliberations. In their place, a new “revolutionary” legislative body came into being – the Grand National Council (Nagy Nemzeti Tanács).

However, this self-dissolution of the National Assembly was not a legal act, as only the king could dissolve the assembly prior to the expiration of its term, as specified in Act IV of 1915. And yet, it was precisely this National Assembly that should have been tasked with dealing with the royal proclamation and taking the necessary measures to temporarily replace the head of state. (Act IV of 1915 effectively extended the mandate of the current National Assembly until the end of the sixth month following the conclusion of a peace, which was a measure undoubtedly justified by the war but one that also raised questions regarding constitutionality.

The “legal” dethronement

There was also a more moderate wing among the free electors – those who did not want to base the national election of a king on the supposed nullity of the Pragmatic Sanction arising from Charles’s actions. Ödön Polner, a professor of law at the University of Pozsony and later at the University of Szeged, was of the opinion that the Pragmatic Sanction could not simply be dismissed as null and void but rather should be legally repealed, and only after should a method be pursued to terminate Charles’s rights. Only then would it be possible for the National Assembly to establish a new order of succession to the throne.

The 1921 act abolishing the sovereign rights of Charles IV and the Habsburg succession – the fourth in a series of dethronements affecting the House of Habsburg (1620, 1707, and 1849) – largely reflects this line of thought. However, from a public law perspective, this “solution” also raised many problems.

The law that ratified the Austro-Hungarian Compromise of 1867 did not treat the Pragmatic Sanction as a simple law but rather as a treaty effected between the Habsburg ruling house and Hungary. Some scholars have even gone so far as to suggest that the supposed treaty was not concluded between the ruling house and Hungary but between the Austrian hereditary provinces and Hungary for the purpose of establishing a defensive alliance. The legal implication, however, was that if the Pragmatic Sanction were a treaty, one subsequently codified into Hungarian law, it could not be unilaterally repealed by the National Assembly, as this action would be beyond its legal competence. To clarify: if Hungary were to join an international organization and the latter’s statutes were codified into law by the National Assembly, a subsequent repeal of such a law would not mean withdrawal from the organization as such, since such a withdrawal would have to be initiated by the organization itself and carried out in accordance with its own procedures. Only then could the law in question be rendered “null.”

The issue of the legal standing of the Pragmatic Sanction was also circumvented by the popular resolution adopted on November 16, 1918, which transformed Hungary into an independent sovereign republic. Article V of the popular resolution, born in the heat of revolution, simply stated that “all legal provisions conflicting with this popular resolution shall lose their legal force; all other legal provisions shall remain in force.” The only possible conclusion, therefore, was that the Pragmatic Sanction – as a legal provision in conflict with the new form of government – was now devoid of all legal force. Thus, the proclamation of a people’s republic was made without any provision for the dethronement of the king.

A further hitch was that the dethronement of a legitimately crowned king was in violation of the historical constitution. Lastly, the question also arose whether the order of succession to the throne could be changed at all during an interim period of public law (provizórium) and whether the regent was entitled to promulgate a new law of succession.

Although Hungary remained a monarchy during the interwar period, with the functions of the head of state “temporarily” performed by a regent, the historical Hungarian constitution was never restored. As the jurist István Csekey expressed it in 1947:  following the adoption of Article XLVII of 1921, which announced the dethronement of the Habsburg-Lorraine dynasty, Hungary's form of government “became a quasi-monarchy; legally a monarchy, but politically a republic. In common parlance, it was called the ‘Royal Hungarian Republic’ (magyar királyi köztársaság).”    

Hungary’s Fundamental Law of 2011 offers a glimpse into the country’s historical constitution. The National Avowal, or Creed, states that “We do not recognize the suspension of our historic constitution due to foreign occupations,” and – according to Article R) – “The provisions of the Fundamental Law shall be interpreted in accordance with … the achievements of our historic constitution.” Naturally, there is no real political basis today for the restoration of the monarchy; nevertheless, it must be recognized that – due to the spirit of the Fundamental Law, which evokes the past – the issue of the legality of the last dethronement goes beyond the framework of traditional legal history. After all, Hungary’s historical constitution was undoubtedly on Charles’s side, despite the efforts of the free electors of the time to prove the opposite.

(translated by John Puckett and Andrea Thürmer)