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The French-Dutch Heritage of the Belgian Constitution of 1830

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The French-Dutch Heritage of the Belgian Constitution of 1830 The French-Dutch Heritage of the Belgian Constitution of 1830 alain wijffels When Belgium acquired its independence Netherlands 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 France 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 Austrian Netherlands 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 “liberties and the Brabant Council recalls that of the franchises”, among which the Joyous Entry Parlements in Ancien Régime France, in the duchy of Brabant 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 French Revolution (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 Napoleon’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 Holy Roman Empire, 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 conscription, 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
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