The French-Dutch Heritage of the Belgian Constitution of 1830

alain wijffels

When acquired its independence had been mainly determined in 1830 and adopted its own national by international relations and to that extent constitution, a substantial part of the by the law of nations1. At the Treaty of population and its leaders – at least, those Utrecht (1713), the transfer from Spanish who were in their late thirties or older – had to Austrian Hapsburg sovereignty was become thoroughly acquainted with the primarily meant to strengthen the role of concept and practice of a written constitution. the country as a protective buffer against The purpose of this brief contribution is French expansionism and an advance to calendar the succession of French and defence line of the United-Provinces, but th Dutch constitutions which governed the by the second half of the 18 century, when Belgian territories and population between the traditional rivals and Austria 1795 and 1830. In both cases, France and the were faced with the assertive policies of Netherlands had already developed their other great powers which were threatening more directly their positions (England own traditions of written constitutions, and with regard to France, Prussia and Russia those constitutions which predated their with regard to Austria), even that role had annexation of Belgium should therefore at become questionable in the realignment least be referred to in this survey. of the European balance of power. In the domestic order, the provinces of the remained, as already during the 15th century under the dukes The last years of the Austrian Netherlands of Burgundy, a personal union of distinct provinces. Each province had its own legal During the last centuries of the Ancien system and institutions, notwithstanding Régime, the legal status of the Southern a growing central administration and giornale di storia costituzionale n. 19 / I semestre 2010 125 Itinerari

“Entrée du prince Fredéric d’Orange dans Bruxelles, le 1er septembre 1830”, stampa coeva government which tended, in several areas, name of the king or emperor) if the statute to enact uniform, or common, legislation were found to be contrary to a provision in the different provinces. The provinces in the Joyous Entry. The prerogative of could rely on their own “ and the Brabant Council recalls that of the franchises”, among which the Joyous Entry Parlements in Ancien Régime France, in the was the strongest which could likewise express rémontrances legal expression of a particular legal status. against the recording of royal statutes and It had been granted for the first time in ordinances, but the similarity should not be 1356, and was to be reaffirmed – with some drawn too far: the Brabant représentations, changes – by each sovereign (as duke of as they were called (i.e. formal objections Brabant) at the beginning of his reign until against the enactment), could more the very end of the Austrian regime2. It readily be overruled by the sovereign; and was a written privilege and during the 18th whereas the French Parliaments would century, it was not uncommon for it to be rely on unwritten fundamental laws which referred to as the “Brabant constitution”. It had been developed by themselves, or on also served a practical purpose, because the considerations of general interest assessed sovereign court of the duchy (the Council of by themselves, the objections in Brabant Brabant) could object to ordinances from had to refer to specific articles of the Joyous the central government (even enacted in the Entry, which meant that both the Council

126 Wijffels and the government had to take into account thereby preventing their political division more rigid constraints of argumentation in the future. and textual interpretation. In any case, the Brabant Council maintained the practice of expressing its opposition to legislation which it deemed in violation of the “Brabant The French Regime constitution” until the last years of the Ancien Régime3. The Austrian Netherlands and Liège In the ecclesiastical principality of were annexed by a decree of the French Liège, which was not incorporated in the Convention on 9 vendémiaire IV (1 October Belgian Habsburg territories but remained 1795)6. The first two written constitutions a separate territory (Reichsstand) of the Holy of the (1791 (Bart et al. Roman Empire, the Peace of Fexhe (1316) 1993), and 1793, Year III) were therefore is another example of a medieval privilege never applicable in the Belgian territories, which remained a written and formal but the third written constitution, that of 5 authority of the subjects’ freedoms and fructidor III (22 August 1795) had shortly rights until the end of the Ancien Régime4. before been issued (Troper 2006). From It guaranteed the liberties and customs, 1795 onwards, and until the years 1814- the due process of law against arbitrary 1815 and ’s defeat at Waterloo, the interference from public agents, and the French citizens of the Belgian départements right of the Estates’ assembly to revise, were subject to the constitutions of the when necessary, the laws and customs of the Directoire (1795, Year III), of the Consulate principality. Several other late-medieval (1799, Year VIII; 1802, Year X), and of the Empire (1804, Year XII). and early-modern documents, including Before the formal annexation (on (following the practice in the Empire) the 31 August), the Belgian territories had “capitulations” agreed by the prince before already been divided, along the principles acceding to his office, were regarded as of organisation of the Republic in general, constitutional acts5. into nine départements, subdivided into Only very few official written acts of cantons. A Government Council was authority can be said to have had a general appointed to oversee the transition from a constitutional significance for the Belgian military occupation regime to the political provinces as a whole (excluding Liège): and administrative incorporation into the one of the best examples is probably the Grande Nation. The new Constitution was «Pragmatic Sanction» of 1549, which may introduced on 6 October, part of the French be seen as an implementation of the attempts revolutionary legislation came into force in 1548 to reform the , immediately, but in many areas, the existing when the “Circle of Burgundy” was created. legislation was provisionally maintained. Through the 1549 Act, Charles V established From 6 December 1796 onwards, the new that all the Habsburg territories from the French legislation became law in the Belgian Burgundian heritage were to be governed by départements, and a selection of some 438 the same principles of dynastic succession, earlier revolutionary statutes (dubbed the

127 Itinerari

Code Merlin) were also introduced. In 1797, nevertheless to cause unrest. Like the préfets, the Belgian population for the first time had the bishops and higher clergy were mainly the opportunity to take part in parliamentary appointed among native Frenchmen, elections (for the partial renewal of the who often favoured a “neo-gallican” Corps Législatif), but the immediate tangible interpretation of the Concordat’s terms results of those elections, viz. a larger and the controversial articles organiques proportion of native Belgians holding added by the French government. By the administrative and judicial offices in their time the regime had been converted into an own constituencies were largely swept away imperial monarchy, however, some of the by the coup of 18 fructidor V (4 September Ancien Régime elites – not least members 1797). As a result of the fructidor coup, of the old nobility – were more prone to the issues which had already caused join the Napoleonic administration. The tensions during the first months of the last years of the regime antagonised both Directoire regime – the continuing military the conservative, pro-clerical segments occupation, aggravated by requisitions and of society, and the supporters of liberal , the levying of new taxes, the policies. At the council of 1811, the critical lack of any effective economic policy, and, statements from the bishops of Ghent and not least, anti-clerical measures – were Tournai led to their arrest and dismissal. further exacerbated and led to peasants’ The grip of the police state tightened as revolts in various parts of the countryside. the military situation worsened, individual The referendum for the Constitution of the freedoms and the press were increasingly Year VIII drew only a small proportion of subjected to restrictions, and a local cause the Belgian population, as at the time, the célèbre clearly showed how the separation of French military situation seemed uncertain powers had to give way when the regime’s and a new conquest by the Austrians and sense of state security was at stake. The their allies could not be ruled out. In adverse economic situation, the growing general, the Consulate did not bring any pressure of conscription even among the substantial improvement with regard to the middle classes and higher taxes alienated representation of the Belgians in the central ever larger groups of Belgian society. national political institutions in Paris, In 1814-1815, before the threat of which remained as before comparatively Napoleon’s comeback had been finally low. In the Belgian territories, the préfets averted, the Great Powers’ decision to were as a rule native Frenchmen; only create a middle-sized kingdom combining at the lower levels of the administration the Northern and the were Belgians more widely represented. under the Orange dynasty was taking shape. The Concordat with the Roman-Catholic While the constitutional position of the Church (1801), the judicial, administrative Belgian territories remained uncertain, and tax reforms of the regime were the conservative classes were putting generally welcomed, and the regime gained forward their claims for a return to the “old acceptance and favour after the peaces constitutions”, a claim the allied occupying of Lunéville (1801) and Amiens (1802), authorities did not gainsay, causing concern but its ecclesiastical policies continued among the liberal bourgeoisie. Ultimately,

128 Wijffels the geo-strategic considerations of the The Dutch written constitutions: prelimina- Allied Great Powers, and foremost of Great ries9 Britain, at Vienna prevailed: a reasonably strong state had to be erected in order to By 1815, when the Dutch constitution of form a first line of defence of the estuaries 1814 was adjusted to take into account the of the Rhine, Meuse and Scheldt against incorporation of the Belgian territories, the French expansionist policies. Northern Netherlands had already been In those circumstances, William acquainted with a variety of modern, written Frederic of Orange saw his return to power constitutions. During the Ancien Régime10, in as an opportunity to head a the United Provinces did not have a written modernised centralised state, built on constitution, though some declarations and more substantial territorial, demographic treaties were perceived as constitutional and economic foundations than the former acts, such as the (1579), United Provinces of the late-eighteenth the declaration repudiating Philip II as century. Under his authority, a document sovereign (Plakkaat van Verlatinge, 1581), and the Dutch-Spanish peace at Munster known as the “Eight Articles” were drawn 11 up in 18147. By that time, the Northern (1648) . Netherlands, where French occupation had The first written constitution of the ended by the end of 1813, had been recreated Netherlands goes back to the in 1795, backed by French as a sovereign kingdom with its own military forces12, and led to the creation of national constitution. The Eight Articles the Batavian Republic as the first “sister- were primarily intended to demonstrate republic” of Revolutionary France and vis-à-vis the Great Powers that the Dutch the adoption of its constitution in 1798 regime was willing and able to work out (Staatsregeling des Bataafschen Volks, which a political and constitutional settlement can be translated more or less literally which would both meet the strategic aims as: State-Ordination of the Batavian of the Congress of Vienna and ensure the People)13. After the departure of the stability of the enlarged kingdom. The stadhouder William V (18 January 1795), articles provided inter alia that the 1814 the pro-Orange party was banned. The Dutch constitution would be adjusted so as States-General were replaced in 1796 by to organise an appropriate representation of a (the “First National the Belgian population in Parliament and to Assembly”, 1 March 1796 - 31 August assuage the opposition of Roman Catholics 1797), where three main political currents in the South against what they perceived as have been identified: “Unitarians”, i.e. 8 Calvinist rule . The issue of the recognition supporters of national sovereignty and a of religious marriages, in that context, centralised government, “Federalists”, who became the focus of the tensions between favoured the autonomy of the provinces, the royal authorities and representatives of and “Moderates”. A commission produced the Belgian Roman Catholic Church. a first draft constitution (10 November 1796) (De Gou 1975), which was rejected, mainly for not carrying out substantially the

129 Itinerari idea of a “single and indivisible” Republic. Because the 1798 constitution ruled out A new draft (30 May 1797) (De Gou 1983; any revision within a period of five years, vol. 2, 1984; vol. 3, 1985), which reflected the Executive held that «The people always a long-winded compromise inspired by retain the power to revise the constitution». the Moderates, was dubbed the “fat book” When the Representative Body nevertheless (dikke boek), for it contained no less than opposed the change, a deadlock was only 918 articles. A referendum (8 August 1797) eluded by the decision of the Executive to rejected, by a vast majority, that second submit their draft to a referendum. Although draft. In the meanwhile, a new (“Second”) the draft was rejected by a majority of those National Assembly (1 September 1797-22 who effectively cast their vote (1 October January 1798) had been elected and it set up 1801), the Executive was able to present the a new commission to draft a constitution. referendum as an approval of the text14 and After a French-backed coup (22 January a new political regime (known alternatively 1798) which gave the Unitarians the upper- as the Batavian Commonwealth, Bataafs hand, the National Assembly was purged Gemenebest, although the style Batavian and sat as a Constituent Assembly. A new Republic continued to be used concurrently) draft constitution was submitted on 6 replaced the first republican constitutional March 1798 (De Gou 1988; 1990), which system (L. de Gou 1995). was ratified by referendum the following Napoleon’s strengthening personal rule month (23 April). However, the Executive and, after the pause during the short-lived Regime (Uitvoerend Bewind) in the Batavian peaces of Lunéville and Amiens, renewed satellite-state of France proved as unstable warfare, also affected France’s allies. In as the Directoire itself and a new coup 1805, on the French emperor’s insistence, was staged a few weeks later (12 June). A the Executive (Staatsbewind) was reduced provisional regime (both Executive and to a single person, R.J. Schimmelpenninck. Parliament) was set in place and new The latter submitted his draft for a revised elections were organised in order to put constitution to the emperor and, having together a parliament (“Representative obtained his approval, to the Batavian Body”) controlled by Moderates. The new Legislative Body (L. de Gou 1997). Once Executive Regime endorsed the coup of 12 again, the new draft was submitted to a June and maintained, at least in theory, the referendum (8-16 April 1805); and, once 1798 constitution. again, the vast majority of non-voters was Bonaparte’s successful bid for power added to the number of supporters of the in 1799 resulted in renewed pressures constitution15. Schimmelpenninck, as from the French government on the Dutch raadspensionaris (a somewhat opportunistic regime to change its constitution. Within use of a title and office which had existed the Republic, calls for change had already under the Ancien Régime), concentrated all been circulating among those who were the Executive powers, assisted by a State dissatisfied with the regime’s inability to Council (similar to the French Conseil work out the new state institutions upon d’État during the First Empire), while the which the Republic depended to achieve Legislative Body lost most of its effective the ambitions of the new political regime. political powers and influence.

130 Wijffels

Within a year, however, Napoleon The Dutch constitution of 1814 had decided to re-establish the Batavian Commonwealth as a Kingdom ruled The departure of the French administrators by his brother Lewis. The Batavian and troops, during the last months of 1813, authorities were left no option – in spite paved the way for a provisional government of Schimmelpenninck’s resistance – but to (Algemeen Bestuur) which invited the accept a treaty and the constitutional acts Prince of Orange to accept the sovereignty which revised the 1805 constitution. Lewis over The Netherlands – the territorial Napoleon was formally offered the crown boundaries of which remained uncertain, of the new “”, as the pending the outcome of the Congress country would now be called, a dignity he of Vienna (Luiten van Zanden, van Riel accepted on 5 June 1806. Commissions of 2000, Chapters 3 and 4). By Proclamation the Council of State and of the Parliament of 2 December 1813, the Prince accepted subsequently wrote a draft of a new the sovereignty and promised to give the constitution for the kingdom, to which a country a constitution. The new sovereign16 constitutional Act was to be added (L. de established a commission which was to take Gou 1997). Both texts were voted by the as the starting-point of its proceedings legislative assembly and, on 7 August 1806, a sketch of constitutional principles promulgated by the king. written by G.K. van Hogendorp, one of the The Napoleonic kingdom of Holland was principal leaders of the movement which not to be the ultimate stage of the French had ensured the return of the Prince. At era for the Netherlands. From December that stage, the issue was raised once more 1809 onwards, the French Empire annexed whether the new state would be organised several southern territories of the kingdom. along the lines of the pre-1795 situation, On 9 July 1810, what was left of the kingdom i.e. as a decentralised union with a large was incorporated into the Empire as a measure of provincial autonomy, or rather whole, an annexation which was further inspired by the French revolutionary and confirmed by an enactment (sénatus- Napoleonic model of a highly centralised consulte organique) of 14 December in political system. Although the result of the the same year. French institutions and commission’s (and later of the drafting legislation were introduced, including committee’s) work has been characterised the constitutional acts of the Empire, as a compromise, the newly established viz. the constitution of the Year VIII, as state was clearly much indebted to the amended in 1802 and 1804, and which modern notion of a nation-state in which were supplemented by constitutional (or, the central institutions, not least the following the phrase used in French public monarchy, enjoyed greater and more law, “organic”) enactments. At that stage, permanent powers than the Generality the Belgian and Dutch territories were had ordinarily exercised under the Old reunited as French départements under Regime Republic. The draft constitution Napoleon’s French imperial rule. was not submitted to a referendum, but to a selection of some 600 prominent members of the Dutch society. On 29 March 1814, 474

131 Itinerari members convened in Amsterdam in an the provinces, most of which substantially assembly deemed to represent the «United retained their pre-revolutionary territory Netherlands». A large majority – only 26 (art. 54), was a concession to calls to re- delegates voted against the draft – expressed establish the old provincial identities. their approval of the constitution. The result Even though the authors of the constitution of the vote was transmitted to the sovereign, had clearly brushed aside any idea of a who promulgated the constitution the same (con)federation, retraining the provinces day. within the constitution as an important The 1814 constitution (Colenbrander level of administration was, in some 1908) was a combination of modernity (as way, an acknowledgement of provincial understood in the immediate aftermath of particularism. The provincial assemblies, the Napoleonic regime) and continuity (at as already noted, designated the members least, attempting to maintain a link with the of the States-General, but if they were past of the United Provinces). The break with members of the provincial States, the latter the Old Regime is most clearly expressed membership ceased, as was any position through the exclusive concentration of the which would have made them accountable sovereignty in the hands of the Prince17 towards the provincial authorities (art. and in the primacy of the institutions, 61). The constitution made it clear that both the Executive and the States-General members of the States-General were to (the Parliament), which represented the represent the as a whole19. United Netherlands as a whole. Defence, Any ties with the provincial authorities taxes and justice were also areas which which were reminiscent of the old system the constitution explicitly entrusted to the where delegates in the States-General sovereign state. Although the members of were bound by an “imperative mandate” the States-General were to be appointed by were now abolished. The members of the Provincial States (i.e., assemblies), the the provincial assemblies were required, constitution dictated, in contrast to the rule witness the oath the constitution imposed, and practice in the United Provinces and to to observe «first and above all» the some extent still during the first years of the constitution of the United Netherlands Batavian Republic, that they would act and (art. 82). The functioning of the provincial vote independently, without consulting the authorities was also to be supervised by provincial assembly which had appointed the state authorities. The administration them, nor be bound by any mandate from of watercourses was deemed to be, as a that assembly. The oath of the members of matter of primary «national» interest the States-General clearly also expressed (art. 127, one of the rare uses of the phrase the primacy of the State’s interests. «national» in the constitution), and as The Provinces were thus no longer, such it was a prerogative of the sovereign as they had been in the United Provinces, (art. 127 ff.), although a considerable degree sovereign actors. Their very existence, or of administrative powers was granted to the at least their representative bodies, was provinces. now based on the constitution of the new On a few other issues, the 1814 state18. Nevertheless, the status accorded to constitution made further concessions

132 Wijffels to tradition and harked back to the of twelve Dutch and twelve Belgian pre-revolutionary regime: thus, a re- commissioners who reported on 13 July establishment of the status of nobility in 1815 and submitted a new draft constitution the provinces (apart from the sovereign’s (Colenbrander 1909). The ratification of prerogative, to create nobility, art. 42) the text inevitably had to follow a different was ordered by the constitution (art. 77); procedure in the North and in the South. for the electoral boards in the cities the In the United Netherlands, a state already constitution referred to the old system as existed, constitutional powers had been it prevailed in past times (art. 79: «gelijk institutionalised and functioned. According van ouds in vele Steden bestonden»), and the to the 1814 provisions, the numbers of chapter on common defence started with an members in the States-General had to be article referring to the Union of Utrecht (art. doubled for a change in the constitution 121) and also re-instated the old citizens’ (viz. from 55 to 110), and the 101 members associations in charge of maintaining the attending the Northern constituent assembly peace (art. 125). Finally, the sovereign’s accepted the new draft. The situation was religion was to remain the reformed Church, more complicated in Belgium, which had which also enjoyed special constitutional no representative body at the time. The protection and benefits, even though the administration in the Belgian départements constitution proclaimed that all religions appointed 1604 prominent personalities were to be equally protected and that no who were called to vote on the same draft. Of discrimination could be exercised with the 1323 votes effectively cast, 796 opposed regard to access to public offices. the constitution submitted by the Dutch government. The latter applied a slightly sophisticated variation on the counting techniques already repeatedly used under The Dutch-Belgian constitution of 1815 the French regime: the 281 Belgian non- voters were added to those who had voted in The union of the Belgian territories with the favour of the draft, and the negative vote of Dutch state founded in 1814 was formally 126 representatives who had declared that a decision of the allied Great Powers, their vote was inspired by the provisions on agreed by separate treaties with the United religious matters was nullified. Even that Netherlands and confirmed in the Final Act “arithmétique hollandaise”, as the mode of the Congress of Vienna (9 June 1815). The of calculation would be derisively dubbed Dutch sovereign, authorised by the allied among Belgian opponents, did not add up to powers, had already been administering the two-thirds majority which the 1814 text the Belgian territories since June 1814. The had required for changing the constitution, revision procedure of the 1814 constitution partly because the vote in Belgium had been could not strictly be applied in order to entrusted by the Dutch administration to a introduce a new constitution which, as much larger number than that of the Dutch required, had to accommodate the specific delegates. In any case, the king declared needs of the Belgian population. The that a substantial majority of the population king20 appointed a committee consisting in both parts of the country as a whole had

133 Itinerari expressed their agreement with the new in the 1815 text; in the chapter on defence, a constitution, which was therefore deemed reference to the “spirit” of the Pacification to be ratified (24 August 1815). of Ghent (1576) was added to that to the The 1815 constitution21 strengthened the “principles” of the Union of Utrecht. The features of the central state. The state was new chapter on religion (art. 190 ff.) was now styled as Kingdom of the Netherlands more neutral than in the previous version, with the king as head of state. The latter was and no longer referred explicitly to the no longer explicitly presented as the holder Reformed Church; the freedom and equal of the sovereignty, a term which appears to status of all existing religions in the realm have been shunned by the drafters. Thus, was guaranteed. whereas art. 1 of the 1814 constitution The growing opposition to William clearly stated that the sovereignty had I’s rule in the Belgian provinces during been vested in Prince William Frederic of the 1820s brought together an unlikely Orange-Nassau, art. 12 replaced the word alliance of the mostly conservative Roman “sovereignty” by “Crown”. In the 1814 Catholics and the more progressive, constitution, the sovereign’s oath formula and largely anti-clerical, liberals. That contained the pledge to honour and uphold “monstrous” alliance (monsterverbond, the constitution (art. 28); by contrast, in the i.e. in the sense of a politically unnatural 1815 version of the oath (art. 53), the King coalition) was able to cooperate on a series swore that pledge to the Dutch people (aan of issues which addressed parallel, if not het Nederlandse volk). The Dutch people, altogether shared, concerns, some of according to both constitutions (1814: art. which focused on constitutional principles. 52; 1815: art. 77), were represented by the Thus, the Roman Catholic Church, which States-General. They were now organised in fundamentally distrusted a Calvinist king two distinct chambers: a Second Chamber, and rejected the notion of equal status for consisting of 55 representatives from the all religions, was faced with a government Northern provinces and 55 representatives policy which, for example on the issue of from the Southern provinces; the First the seminaries and the appointment of Chamber was to include between 40 and bishops, generated very much the same 60 life peers, appointed by the king. The tensions between Church and State as those Second Chamber’s sessions were normally which the Church had already faced under to be public (art. 108). The principle of the Napoleonic rule. It gradually recognised in government being answerable to Parliament the constitutionally guaranteed freedom («governmental responsibility»), raised of education a potentially powerful tool to during the preliminary Dutch-Belgian recover some of its former influence on discussions of the draft constitution, was the masses, or at least on the social elites, opposed by the king and not included in in its traditional Belgian strongholds. The the final text. The king’s powers were now liberals, who developed during the late listed, in the French version, under the 1820s around certain newspapers a more heading of «Royal Prerogative» (art. 56 coherent ideology and programme of ff.). Some of the references to the Ancien fostering constitutional liberties, needed Régime already included in 1814 remained the Catholics in order to gain sufficient

134 Wijffels leverage for an effective opposition to the to accept governmental responsibility, Government. Some of their arguments but also the subservience of the First show that their call for constitutionally Chamber to the king, the ten-year period protected liberties were referring to for which the ordinary budget was voted both an idealised notion of freedoms (combined with the lack of accountability enshrined in the ancient Belgian charters of the public finances’ administration), of medieval times, and to their perception the restrictions on Parliament’s faculty of more contemporary Whig constitutional to propose amendments to bills, and the developments in England. The issue of the representation of the nobility as an order, government ministers being politically or at least a distinct electoral body. “responsible” to Parliament, which the king saw as an unacceptable infringement of his authority, remained a recurrent source of tension. In addition, the opposition of The Belgian National Congress and the the late 1820s also increasingly focused Constitution of 1831 on a number of constitutional demands, which the Belgian Constituent of 1830- The National Congress, the constituent 1831 accordingly met by recognising assembly elected in the Belgian territories explicitly the corresponding liberties in the which revolted against the Dutch royal constitution, in reaction to their alleged rule, was presented with two draft violation or disregard under the Dutch constitutions24. The discussions took place regime. Among those issues, which were from 25 November 1830 until 7 February often the subject of petitions to Parliament 1831: a comparatively short space of time, – the right of petitioning would be another during which several parts of the main right forcefully recognised by the Belgian 22 draft (written by a commission set up by Constituent –, the freedom of education, the provisional government) were easily of the press, of the use of language (the accepted, and the remaining controversial French-speakers felt disadvantaged by the issues fairly quickly settled25. Among the official Dutch linguistic policies) (Thonissen latter, one of the questions for which greatly 1879, p. 104), and the requirement of diverging opinions were expressed was that an independent judiciary (and, another of the choice for either a single-chamber recurrent call, the re-establishment of the 23 Parliament, or a bicameral system; and, as jury ) were among the most important a majority opted for a bicameral Parliament demands put forward. The liberal (the French revolutionary experience opposition also clashed more generally of a unicameral system was still fresh in with the king’s different concept of his everyone’s minds), what would be the royal prerogatives and the implementation character of the First Chamber (styled of the constitution. The parliamentary Senate): some representatives were inspired experience of the 1820s had also highlighted by the English House of Lords, others by the some crucial weaknesses in the position Chambre des Pairs of the 1814 French Charter of Parliament vis-à-vis the Executive: (i.e. Life Peers appointed by the King), still as already mentioned, the king’s refusal others by the reforms of the latter in the

135 Itinerari recent 1830 French Charter. An influential In contrast to the Dutch constitution, current within the National Congress saw the foundation of the sovereignty was in the establishment of a Senate the means squarely vested in the nation («All powers to check any excessively radical tendencies issue from the Nation», art. 25) and, as a a single Chamber of Representatives might corollary, the king’s powers were restricted display, but also to develop further the need to those granted by the constitution – no to maintain a balance between the monarchy royal prerogative based on an unwritten and the Lower Chamber. In the end, the tradition or body of laws was acknowledged. outlook of the Belgian senate in the 1831 In addition, the need for parliamentary constitution proved highly conservative, approval for the annual budget and for the as the conditions for eligibility were such size of the army, also to be determined (40 years of age, and a high threshold with annually, implied that the government was regard to the tax-rate) that nationwide only forced to retain the confidence of a majority some 700 citizens were qualified. in Parliament, and that it was thus politically The at the time comparatively far- answerable to Parliament. The cooperation reaching liberties guaranteed by the between the Executive and Parliament was constitution can to a large extent be ensured by including both in the legislative explained, as already noted, as a reaction process. against the authoritarian features of the Dutch regime, but also because of the Church’s conversion to the idea of the constitutional freedoms of religion, Conclusion worship and education, which built a common ground with the liberal currents, This brief outlook of the consecutive written even though the latter tended to be constitutions which were introduced in the hostile to the Church. The conversion Belgian territories under the French and was probably not overmuch influenced the Dutch regimes shows that by the time by the liberal orientation represented of their independence, the Belgians had by Lamennais, but possibly more so been directly acquainted with a variety by the Church’s experiences with the of constitutional systems expressing the powers of the modern state’s control succession of government systems which and interference under the French and had developed in France, and then in the the Dutch regimes, and the realisation Netherlands, since the mid-. The that, freed from such interference, their Dutch constitution of 1815, itself the result hold on large segments of the population of parallel, but distinct, developments would be more effectively protected. Even which reflected French influences but also so, the Church’s position would remain specific Dutch political currents, was the throughout the 19th century hindered by first which offered the Belgians a system the restrictions on the implementation of government and Parliament in which of the freedom of association, a freedom they had an opportunity to contribute which entailed in the view of many the risk significantly – in spite of the Dutch king’s of a new development of the mainmorte. personal rule – to the emergence of

136 Wijffels constitutional conventions. Although the H.T. Colenbrander Belgian National Congress which acted as [1908] (hrsg.), Ontstaan der Grondwet. Bronnenverzameling, vol. 1, 1814 [Rijks Geschiedkundige Publicatieën, constituent included only a relatively small kleine serie 1], , Martinus Nijhoff; number of representatives who had sat in the [1909] (hrsg.), Ontstaan der Grondwet. Bronnenverzameling, Belgian-Dutch Parliament, the experience vol. 2, 1815 [Rijks Geschiedkundige Publicatieën, kleine serie 7], The Hague, Martinus Nijhoff; of the former written constitutions which had governed the country and the political C. de Boer, J.W. Sap [2007] (hrsg.), Constitutionele bronnen van Nederlandse practice during the previous fifteen years rechtsgeschiedenis, Nijmegen, Ars Aequi Libri; played a substantial role in the National Congress’s approach to the constitution L. de Gou [1975] (hrsg.), Het plan van Constitutie van 1796. the commissioners were to draft – if only, Chronologische bewerking van het archief van de eerste as with so many written constitutions constitutiecommissie ingesteld bij decreet van de Nationale since the late 18th century, because the Vergadering van 15 maart 1796, [Rijks Geschiedkundige Publicatieën, kleine serie 40], The Hague, Martinus new constituent wished to react against Nijhoff; what was perceived to be the shortcomings [1983] (hrsg.), Het ontwerp van Constitutie van 1797. De of the regime which had been ousted. behandeling van het plan van constitutie in de Nationale Vergadering, vol. 1, 10 november 1796 - 10 april 1797 [Rijks These cumulative layers of constitutional Geschiedkundige Publicatieën, kleine serie 55], The experiences ought to be taken into account Hague, Martinus Nijhoff; in order to understand the work of the [1984] (hrsg.), Ibidem, vol. 2, 11 april - 13 september 1797 [Rijks Geschiedkundige Publicatieën, kleine serie 56], drafters of the 1831 constitution, without The Hague, Martinus Nijhoff; minimizing the importance of their – often, [1985] (hrsg.), Ibidem, vol. 3, Indices, concordanties e.d. stated – perception of other constitutional en facsimile van het Ontwerp van Constitutie [Rijks Geschiedkundige Publicatieën, kleine serie 57], The systems, to which the Belgians had not Hague, Martinus Nijhoff; been subjected (in particular the American [1988-1990] (hrsg.), De Staatsregeling van 1798. Bronnen voor federal and state constitutions, the French de totstandkoming, voll. 1-2, Bronnen vóór 22 januari 1798 constitutions of 1791 and 1793, the French [Rijks Geschiedkundige Publicatieën, kleine serie 65], The Hague, Instituut voor Nederlandse Geschiedenis; Charters of 1814 and 1830, and, perhaps to [1995] (hrsg.), De Staatsregeling van 1801. Bronnen voor de a lesser extent, the written constitutions totstandkoming, [Rijks Geschiedkundige Publicatieën, introduced in various German territories kleine serie 85], The Hague, Instituut voor Nederlandse Geschiedenis; from 1814 onwards). [1997] (hrsg.), De Staatsregeling van 1805 en de Constitutie van 1806. Bronnen voor de totstandkoming, [Rijks Geschiedkundige Publicatieën, kleine serie 89], The Hague, Instituut voor Nederlandse Geschiedenis; Bibliography H. Finger [2004] Der fröhliche Einzug (Blijde Inkomst, Joyeuse Entrée) als Grundlage der Brabanter Verfassung, in J. Engelbrecht G.W. Bannier et al. (hrsg.), Festschrift für Hansgeorg Molitor zum 65. [1936] Grondwetten van Nederland. Teksten der Geburtstag, Bielefeld, Verlag für Regionalgeschichte, achtereenvolgende staatsregelingen en grondwetten sedert pp. 23-40; 1795, met verschillende andere staatsstukken, historische toelichtingen en eenige tabellen, , W.E.J. Tjeenk S.J. Fockema Andreae Willink; [1982] De Nederlandse Staat onder de Republiek, Amsterdam, Noord-Hollandsche Uitgevers Maatschappij; J. Bart et alii [1993] (éds.), 1791. La première constitution française, Paris, R. Fruin [H.T. Colenbrander, ed.] Economica; [1922] Geschiedenis der staatsinstellingen in Nederland tot den

137 Itinerari

val der Republiek, The Hague, Martinus Nijhoff; B. Jacobs, R. Kubben, R. Lesaffer [2009] (eds.), In the Embrace of France. The Law of Nations G. Hansotte and Constitutional Law in the French Satellite States of the [1987] Les institutions politiques et judiciaires de la Principauté Revolutionary and Napoleonic Age (1789-1815). Acts of the de Liège aux Temps Modernes, s.l., Crédit Communal; International Conference held at Tilburg University on 27- 28 April 2006, Baden-Baden, Nomos Verlag. É. Huytens [1844-1845] (éd.), Discussions du Congrès National de Belgique, 1830-1831, 5 voll., Bruxelles, Société typographique belge, Adolphe Wahlen & Cie;

1 For a general survey of the during the ‘Brabant Revolution’ forced the prince-bishop to situation in the Southern of 1789-1790 which involved repeal a statute of 1684 which Netherlands (and of the Brabant and several other Belgian had concentrated political power principalities of Liège and provinces. It was spurred on in the hands of the prince, Stavelot) on the eve of the by the reform policy of Joseph the cathedral chapter and French annexation, it is still II during the 1780s, which was the nobility. The flight of the useful to refer the reader to the partly directed against traditional prince led to a proclamation of a detailed study of Poullet 1875. secular and ecclesiastical vested republican regime, which led to an Poullet offers both a general interests. The opposition, which intervention from Prussia acting assessment and a specific outline was therefore largely inspired and on behalf of the maintenance of for each territory. His approach backed by a conservative political peace within the Empire and the is inevitably to some extent agenda, led to an insurgency in Westphalian Circle. In January determined by 19th-century the autumn of 1789. In Brabant, 1791, Austrian forces, after constitutional concepts; the the emperor was repudiated by having brought down the Brabant book is subdivided thematically, the insurgents for having violated insurrection, reinstated the following the major topics and his oath to the Joyous Entry and prince-bishop. A «constitutional categories of constitutional law for having abolished Brabant edict» of 10 August 1791 sought as perceived in his day. This privileges. Several other provinces to restore «the ancient and categorisation can to a large joined the revolt and united, early precious constitution» to its extent still be used by present- 1790, in a confederation called state before the revolt. During day historiography; moreover, “États belgiques unis”, comprising the following years (1792-1795), Poullet’s analysis is historically Flanders, Brabant, Mechlin, the French-Austrian war gave strongly documented through Belgian , Hainaut, exiles from Liège an opportunity statutory and doctrinal sources Namur and Tournai). The to plead successfully the cause of (which can be complemented by independence movement was, incorporating the Liège territories later Belgian historiography on however, deeply divided between into France. the history of institutions for a conservative anti-reformist 6 A first occupation by French better understanding of political forces and those who supported revolutionary forces took place and constitutional practice). For the French Revolution. As a result in November-December 1792 a recent general textbook on the of these divisions, the Austrian and lasted until Austria regained history of public law in Belgium, forces easily reconquered the control after the battle of in a wider European perspective Belgian territories by the end Neerwinden (18 March 1793). and offering an outline from of 1790 and re-established the The Austrian restoration came to ancient times until the present Habsburg regime. an end after the French victory day: Martyn, Opsommer 2008. 4 Hansotte 1987. at the battle of Fleurus (26 June 2 For the original text: van Bragt 5 Contrary to the “Brabant 1794). The transfer of sovereignty 1956; among the many studies, Revolution”, the Revolution in was formally recognised in the see Van Uytven 1969, pp. 23-30; Liège of 1789-1791 was mainly Treaty of Campo Formio (1797). Finger 2004, pp. 23-40. Also: inspired by contemporary French 7 See the text (in French) in Poullet 1863. revolutionary developments and Colenbrander (éd.) 1909, pp. 27- 3 The Joyous Entry also played a role ideas. In August 1789, a revolt 28.

138 Wijffels

8 The articles ruled out any 9-14; Kubben, A Tale of Dwarfs of the French Revolution, cf. confederation and anticipated and Giants. The Batavian Republic Mirabeau’s 1788. the creation of a and the Franco-Anglo Peace, pp. 18 Not only the term “kingdom”, (the «reunification» would be 151-172; but also, on an important the term “national” has also «intime et complète de façon que aspect of the Dutch constitutional been (mostly) avoided in the les deux pays ne forment qu’un debate during that period, but constitution. Art. 53 stated that seul et même État»), without any which I am not addressing in this the Dutch people consisted of internal customs or commercial paper: B. Jacobs, ‘Farewell to the the inhabitants of the provinces, barriers, and a contribution by American Dream. Dutch Interest the list of which, and their the State “in general”, i.e. as a in American Constitutional territorial boundaries, defined whole, to crucial works of defence, Developments in the Early by the constitution (art. 54). whether military or against the Nineteenth Century’, pp. 15-30. Art. 73 created the provincial sea. 13 For a recent scholarly status representative bodies, cf. its 9 For a convenient collection of the quaestionis of various aspects of use of the future tense: «There successive late-18th and 19th- the 1798 constitution: Moorman will be States [i.e. representative century Dutch constitutions van Kappen and Coppens assemblies] of the provinces or and related texts in a single (eds.) 2001. See also several countries [Landschappen]». volume, one may refer to one of contributions in: Moorman van 19 On the origins of this principle the editions of: Bannier 1936, Kappen and Coppens (eds.) 1997. in the Netherlands, and its later for which I have used my copy 14 Of the 416,419 citizens who constitutional developments: of the edition: Zwolle, W.E.J. enjoyed the franchise, 52,219 Veen 1994. Tjeenk Willink. For a more voted against the draft and 20 The Dutch sovereign had recent publication including 16,771 in favour. The Executive anticipated the decision of the most relevant texts, but without did not mention the last figure Great Powers in Vienna and had contextual information: de Boer, (votes which had not been cast (with their approval) assumed the Sap (eds.) 2007. For scholarly use, were counted as vote in favour of title of king on 16 March 1815. the series of publications of the the proposed constitution), but 21 Of which an official French Rijks Geschiedkundige Publicatieën announced that only 52,219 votes translation was published. The which will be referred to for of the 416,419 strong electorate original version was in Dutch. each (draft) of constitution, and had opposed the draft. The French text is included in the which include the preliminary 15 The franchise included 353,332 edition by Bannier 1936, pp. 285- sources of the drafting, offer the voters, of whom 14,093 voted 349. fundamental source-material for in favour of, and 136 against the 22 The right to submit petitions was any historical research. draft. already mentioned in the 1815 10 Fruin [H.T. Colenbrander, ed.] 16 The state was perhaps in all but Constitution (art. 181), which was 1922; Fockema Andreae 1982. name a kingdom, certainly a seen to be inspired by art. 364 of 11 For a brief introduction, together hereditary monarchy, but the 1814 the French Constitution of the with colour pictures of sample constitution avoided designating Year III. See art. 21 and 43 of the pages from these documents (and the state as such; instead, it Belgian Constitution (1831), and also from the 1798, 1814 and 1815 refers consistently to the country the commentary by Thonissen constitutions), see In 21 stappen as the “United Netherlands” 1879, pp. 98-100. vrij onverveerd. Constitutionele (Verenigde Nederlanden), while 23 However, demands to establish a topstukken van het Nationaal the head of state is styled separate jury for indictments was Archief (The Hague, Nationaal Souvereine Vorst, which may be rejected, cf. the brief historical Archief; Hilversum, Uitgeverij translated as “sovereign prince” references in Thonissen 1879, p. Verloren, 2009). or, simply, “sovereign” (the 295. 12 On the French influences Dutch word vorst is commonly 24 For the transcripts of the National on foreign constitutional translated as “sovereign”, which Congress’s proceedings: Huytens developments during the French of course becomes inadequate (ed.) 1844-1845, voll. 5. Many Revolution and the First French in combination with the epithet of these documents, as well as a Empire, cf. the contributions “sovereign”). useful bibliography (with some in Jacobs, Kubben and Lesaffer 17 For a very biased historical and of the essential works partly (eds.) 2009. Of particular interest political argument against the or entirely reproduced) are to for the Netherlands are the ’s powers written by be found on the website www. contributions by J. Roosendaal, an influential foreign observer unionisme.be. La genèse de la Constitution batave representing the enlightened 25 Apart from the commission’s de 1798, un produit français’, pp. ideology and agenda on the eve draft, a second draft was

139 Itinerari also considered during the discussions. Both drafts and the final text voted by the Congress can be found in: Neut 1842, which reproduces the essential travaux préparatoires, but following the sequence of the Constitution’s articles.

140